Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Chris Cunneen
The recently completed survey of persons held in police custody by the research unit of the Royal Commission into Aboriginal Deaths in Custody (McDonald, 1989) has shown the high proportion of Aboriginal people detained in police custody. Nationally, Aboriginal people constituted 29% of persons held in police custody at the time of the survey.
The current research conducted at the Aboriginal Law Centre analysed the number of persons held in police cells[1] in Wilcannia NSW during the first 6 months of 1987. The study period included the time of Mark Quayle's death in a cell at Wilcannia Police Station. The purpose of the research was to analyse who was in police cells and why they were detained.
The political context of policing in Wilcannia is of some importance. There had been a clear articulation during the mid-1980s that there was a `crime problem' in western and north-western NSW and that, to a large extent, the crime problem was synonymous with the `Aboriginal problem' (Cunneen, 1989). In general a conservative law and order approach of more police and tougher legislation was forwarded as the suitable response to the alleged `problem'.
There were 259 recorded entries of persons being placed in the cells at Wilcannia Police Station during the first 6 months of 1987. Of those 259 detentions, some 98% of the persons detained were Aboriginal[2], 87% of the persons were male and 13% female. The age of the persons ranged from 13 years to 61 years.
The four broad reasons for detention are shown in Table 1.
Table 1 shows that the major reason for the detention of persons in police cells in Wilcannia related to the Intoxicated Persons Act NSW 1979.
Table 1
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Reason
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No.
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%
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Intoxicated Persons Act
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150
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56.4
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Bail Arising from Criminal Charges
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69
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25.9
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Warrants
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42
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15.8
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Other
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5
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1.9
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Total
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266[3]
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100.0
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Over half (56.4%) of all detentions during the six month period were effected under this legislation. Slightly more than a quarter (25.9%) of detentions were the result of bail conditions, while almost 16% of detentions were due to warrants. Each of these categories for detention will be discussed separately below.
Of the 150 detentions under the Intoxicated Persons Act (IPA), only two (or 1.3%) were of non-Aboriginal persons.
Other evidence available indicates an increasing use of the IPA in Wilcannia during 1986 and 1987 for the detention of Aborigines. According to figures available from the NSW Bureau of Crime Statistics and Research, there were a total of 299 detentions in Wilcannia under the Act during 1986. Of this total number, 91% were Aboriginal, while 6% were non-Aboriginal and 3% were of unknown background. The Bureau figures for Wilcannia for all of 1987 indicate the total number of detentions as 547. Of this total number, 89% were Aboriginal, 9% were non-Aboriginal and 2% were of unknown background (NSW Bureau of Crime Statistics and Research, 1988).
Two further points are important in relation to the general number of detentions under the IPA. Firstly, the legislation is used in Wilcannia primarily for the detention of Aboriginal people as opposed to non-Aboriginal people. Secondly, in comparison to the rest of NSW, Wilcannia has a high rate of detentions for Aborigines in police cells under the legislation. If the rates of detention arc expressed per 1000 of specific populations the use of the legislation in Wilcannia is demonstrably extreme.
The rates of detention for non-Aboriginal people in NSW were 3 per 1000 in 1986 and 2 per 1000 in 1987. The rate of detentions for NSW Aboriginal people was more than 25 times higher at 76 per 1000 in 1986 and 59 per 1000 in 1987. However the comparable figures for Wilcannia show an extraordinarily high rate at 346 per 1000 in 1986 and 620 per 1000 in 1987.
A detailed examination of Wilcannia cell books in relation to the Intoxicated Persons Act provides more comprehensive information on the nature of detentions under the Act. Of the 150 detentions during the first half of 1987, some 15% were detentions of females. All females detained were Aboriginal and the average length of time they were detained was 9 hours and 10 minutes.
The age range of persons detained under the Act was 13 to 61 years of age. A 13 year old Aboriginal boy was held in the cells as an intoxicated person for 7 hours and 25 minutes. He was detained from 4.05 pm and held until 11.30 pm. Juveniles (those under the age of 18 at the time of detention) made up 11% of all detentions under the IPA in Wilcannia during the first half of 1987. All juveniles who were detained were male and Aboriginal. The average length of detention for juveniles was 9 hours and 40 minutes.
Of the 17 Aboriginal juveniles detained in police cells under the Act, 12 were held overnight. The longest detention of a juvenile as an intoxicated person lasted 14 hours and 20 minutes: the 17 year old youth was held from 6.10 in the evening until 8.30 the following morning. Another youth (16 years old) was detained under the IPA for 13 hours and 55 minutes. In fact, 13 of the 17 juveniles detained were held longer than the 8 hours provided for in the legislation, while 11 of those 13 were held for more than 10 hours.
The Intoxicated Persons Act states clearly in s.5(2) that a person may be detained until he (sic) ceases to be intoxicated or the expiration of 8 hours, whichever occurs first. Yet it is evident from the research that this provision is routinely ignored.
It has been indicated that there were 150 intoxicated person's detained during the period. In one case a person was detained under the Act but held for 47 hours and 15 minutes because of two warrants for offensive behaviour. This case has been excluded from the following analysis of length of detention because it is impossible to know when, during the 47 hours, the person ceased to be held as an intoxicated person. Thus, the analysis is based on 149 detentions.
Figure 1 shows the total length of time persons were detained under the Intoxicated Persons Act by two hourly intervals. Some 28.8% of detentions were between 8 and 10 hours, while another 22.1% were between 10 and 12 hours. A further 21% of detentions exceeded 12 hours. In fact, the average length of detention in police cells for intoxication was 10 hours which is well over the 8 hour limit established under the IPA legislation. One non-Aboriginal person was detained more than 8 hours.
The most striking feature of the information shown in figure 1 is that some 73% (109) of detentions under the Act exceeded the 8 hour limit, and, therefore, can be considered as unlawful detentions under the provisions of the legislation. It is also important to note that many of the detentions were not simply slightly over the 8 hour limit - as noted above some 21% of detentions exceeded 12 hours. The two longest detentions under the Act were both for 21 hours and 25 minutes. Two Aboriginal men (one aged 27, the other 40) were detained on the same day at 3.20 in the afternoon and not released from the cells until 12.45 the following afternoon. Neither persons were charged during this period with criminal offences.
Analysis of the time detained and the time released for detentions under the IPA supports the view that many of the detentions exceeding 8 hours occurred with persons being locked-up overnight in the cells. Of those detained more than 8 hours, some 45% were detained between 9pm and midnight, while another 18% were detained between 6pm and 9pm. The majority (78%) of persons detained more than 8 hours were released in the morning between 6am and 9am.
A sizeable group (18%) of people who were held for more than 8 hours, were detained between 3pm and 6pm. The point is important because it shows that this group of detainees would have been approaching the permissible 8 hour limit of detention when the police station closed around midnight. Clearly decisions were made however to extend the period of detention overnight.
There was also a small group of detentions under the Act which did not simply follow the `overnight' pattern. Mention has already been made of the two Aboriginal men detained for 21 hours and 25 minutes. Other excessive and unusual detentions included the following; the detention of a 43 year old Aboriginal woman from 6am until 10.45pm the same day (a total of 16 hours and 45 minutes); the detention of a 33 year old Aboriginal man from midnight until 8pm the following night (a total of 20 hours); and the detention of a 35 year old Aboriginal man from 11.10pm until 7pm the following night (a total of 19 hours and 50 minutes).
As indicated in Table 1 there were 69 detentions in the cells arising from bail considerations during the first 6 months of 1987. The nature of those bail decisions are shown below in Table 2.
Table 2
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Reason
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No.
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%
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Bail deferred
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47
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68
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Bail refused
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19
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28
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Unknown
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3
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4
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Total
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69
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100.0
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It is clear, that in the majority of cases, persons were detained because a bail decision had been deferred (68%). The procedure of deferring bail means that no decision is made in relation to the granting or otherwise of bail for a period of time. In contrast, in a little of over a quarter of cases (28%) persons were detained because bail was actually refused.
According to Donovan (1981, p.70), although the Bail Act NSW (1978) creates a right to bail for minor offences, `an authorised officer may delay making a determination while the person is intoxicated or otherwise incapacitated'. There is little other evidence on the extent of the practice by police officers to defer making bail decisions, however research by Stubbs (1984) indicated that where unconditional bail was granted, 75% of cases were completed within an hour from the time of being charged. In a further 21% of cases of unconditional bail, the determination was made within 5 hours.
Analysis of the length of detention in relation to bail decisions indicated that in 80% of cases where a bail decision was deferred, the person was held longer than 8 hours. With the exception of 3 of the 19 persons who had bail refused and were held more than 20 hours, more people were held in the Wilcannia cells for longer periods as a result of the deferral of bail decisions than as a result of an outright bail refusal. The average length of time spent in the cells at Wilcannia as a result of a deferred bail decision was 11 hours.
All persons who had bail deferred were Aboriginal. In 72% of cases the reason given by police for the decision to defer bail was due to the intoxication of the person charged and their alleged inability to understand bail conditions. When bail was deferred the police station's occurrence pad would normally contain an entry such as the following:
`This date bail was deferred upon Timothy J. charged with offensive manner due to his intoxication and inability to fully understand his bail conditions.'
However in 19% of cases no reason was given for the decision to defer bail, and in a smaller group (9%) the reason stated in the cell book was simply `street offences'.
Further investigation of the records revealed that, where individuals had bail deferred due to their inability to understand the bail conditions, the majority (76%) were in fact later released on unconditional bail - after spending, on average, 10 hours and 15 minutes in the cells.
There were 81 charges laid by police for the 47 incidents of bail deferral. The majority of charges laid related to public order offences. Offensive manner and police offences comprised 54% of the total, while throw missile and malicious injury constituted a further 11%. In more than half of the 47 incidents of bail deferral there was a charge of offensive behaviour. Individuals spent, on average, 10 hours and 30 minutes in the cells while bail was deferred for the offensive behaviour charges.
As indicated in Table 1 there were 42 cell detentions as a result of warrants. All except 2 detentions involved Aboriginal persons. All warrants related to the failure to pay fines arising from previous convictions. Most of the warrants related to motor traffic matters
(51%). The next largest group were public order offences of offensive behaviour (15%) and the related offences of resist arrest, assault or hinder police (7%).
The evidence presented in this report indicates that the major reason for the detention of persons in police cells in Wilcannia arose from the use of the Intoxicated Persons Act. The report further indicates that police routinely ignored the 8 hour detention limit set by the legislation. The Intoxicated Persons legislation was introduced in NSW in 1979 for the purpose of decriminalising public drunkenness. However in areas where there is no community-run proclaimed place the legislation is used for the widespread detention of Aboriginal people. The second major reason for detentions in police cells arose through the deferral of bail decisions. The NSW Bail Act was introduced in 1978 with the intention of reducing the occurrence of bail refusals and establishing the right to bail for particular offences. It is clear however that the intent of the legislation has been circumvented through the process of deferring bail decisions for considerable periods of time. These bail deferrals often related to charges for which individuals were later released on unconditional bail.
In Britain, Gilroy (1987) has referred to the 'myth of black criminality' by which he indicates that the images and representations of black criminality have achieved a mythic status within the politics of law and order and race relations. Gilroy is not suggesting that blacks do not commit crime, but rather the image of 'blacks and crime' has taken on a particular ideological meaning removed from the historical reality of police/black relations. It is interesting therefore if we reverse the focus of attention and concentrate instead on police practices. The evidence presented here shows the routine subversion of the intent of particular legislation and the non-compliance with specific sections of legislation as a matter of course. These practices are themselves part of an ongoing policing process of keeping 'trouble-some' Aboriginal people off the streets.
That process is itself defined within the wider construction of Aboriginal people as a 'criminal class'. On the one hand, the state introduces apparently liberal and humanitarian legislation (such as the Bail Act and the Intoxicated Persons Act), while at the same time its agents are engaged in the ongoing historical and political process of ensuring compliance of a dispossessed indigenous minority.
Cunneen, C. (1989) 'Constructing a Law and Order Agenda: Conservative Populism and Aboriginal People in North West NSW, Aboriginal Law Bulletin, Vol 2, No 38, pp.6-9.
Donovan, B.H.K. (1981) The Law of Bail. Practice, Procedures and Principles, Legal Books, Sydney.
Gilroy, P. (1987) 'The Myth of Black Criminality' in Scraton, P. (ed) Law, Order and theAuthoritarian State, Open University Press, Milton Keynes.
McDonald, D. (1989) National Police Custody Survey August 1988. National Report, Research Paper 13, Royal Commission into Aboriginal Deaths in Custody, Canberra.
NSW Bureau of Crime Statistics and Research, (1988) Detentions Under The Intoxicated Persons Act During 1987, NSW Bureau of Crime Statistics and Research, Sydney.
Stubbs, J. (1984) Bail Reform in NSW Bureau of Crime Statistics and Research, Sydney.
[1] A more detailed version of the research is available from the Aboriginal Law Centre. The study analysed cell books for the six month period prior to, and including, the time of Quayle's death. Information recorded from the cell book entries included date of detention, age and sex of person detained, the reason for detention, the time of detention and release, the total time of ' detention and bail details. Additional information was drawn from police charge books, occurrence pads and Intoxicated Persons book.
[2] According to the 1986 Census, the Central Darling Local Government Area has a population of 3,304, of whom 787 (or 24%) were Aboriginal. Wilcannia is the main population centre in the Central Darling LGA and approximately half the population is Aboriginal.
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