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Hurley, Monique --- "The beginnings of justice for Aboriginal deaths in custody? The coronial inquest into the death of Tanya Louise Day" [2020] PrecedentAULA 40; (2020) 159 Precedent 4


THE BEGINNINGS OF JUSTICE FOR ABORIGINAL DEATHS IN CUSTODY?

THE CORONIAL INQUEST INTO THE DEATH OF TANYA LOUISE DAY

By Monique Hurley

On 9 April 2020, in the Coroners Court of Victoria, Coroner English handed down her findings in the inquest into the death of Ms Tanya Louise Day. Shortly after the findings were handed down, Ms Day’s children – Belinda Day, Warren Stevens, Apryl Watson and Kimberly Watson – said:

‘This is a historic day for Aboriginal people in this country. Hundreds of Aboriginal people have died in police custody, yet no police officer has ever been held criminally responsible. This is a stain on our country. Today, the Coroner in the inquest into our mum’s death referred two police officers for criminal investigation into whether they committed negligent manslaughter. This isn’t the end of the road, but it is the beginning of justice for our mum.’

BACKGROUND

Ms Day was a proud Yorta Yorta woman and a much-loved mother, grandmother, sister and community advocate.

On 5 December 2017, Ms Day went to the Echuca train station and bought a ticket to travel to Melbourne. She never made it to her destination.

During the train journey, Ms Day was approached by a train conductor from the regional public transport provider in Victoria, V/Line. He formed the view that Ms Day was ‘unruly’ and set off a chain of events that culminated in Ms Day being ejected from the train and arrested for being drunk in a public place.

Ms Day was taken to the Castlemaine police station and detained in a police cell. Despite the Victoria Police Manual requiring that she be physically checked by police every 30 minutes, this did not happen. The CCTV footage shows that, at around 4:50pm, Ms Day fell and hit her head on a concrete wall of the police cell.

When a physical check finally took place at 8:03pm, police noticed a dark, oval-shaped bruise on Ms Day’s forehead. An ambulance was called and attended the police station. Ms Day was then taken by ambulance to Bendigo Hospital. A scan revealed a massive bleed on Ms Day’s brain and she was flown by helicopter to St Vincent’s Hospital in Melbourne, where she underwent emergency surgery.

Ms Day died 17 days later.

DECRIMINALISATION OF PUBLIC DRUNKENNESS

Ms Day was arrested by police for being drunk in a public place. Victoria’s Summary Offences Act 1966 lists a number of offences relating to public drunkenness. Notably, s13 of that Act provides that ‘any person found drunk in a public place shall be guilty of an offence’.[1]

Abolishing the offence of public drunkenness was a key recommendation of the Royal Commission into Aboriginal Deaths in Custody made in 1991. Recommendation 79 clearly stated that, in jurisdictions where drunkenness has not been decriminalised, governments should legislate to abolish the offence of public drunkenness.[2]

The death of Mr Harrison Day, Ms Day’s uncle, was examined by that Royal Commission. Mr Day died in custody in 1982 from an epileptic fit in an Echuca police cell after he was arrested for an unpaid ten dollar fine for public drunkenness.[3]

On 6 December 2018, at the first directions hearing, the Coroner took the unusual step of foreshadowing that she would be making a recommendation to the Victorian Attorney-General that the crime of public drunkenness be abolished.

On 22 August 2019, in the week before the inquest was due to commence, the Victorian Government announced that it would abolish the offence of public drunkenness and replace it with a public health response.[4]

SCOPE OF THE INQUEST

On 30 April 2019, the Coroner heard submissions from Ms Day’s family and interested parties regarding the scope of the inquest and whether it should include a consideration of the role of systemic racism as a contributing factor to the circumstances and cause of Ms Day’s death.

The phrase ‘systemic racism’ refers to ‘situations where what appear to be “facially neutral” laws, policies and practices operate in an uneven or unfair manner that is detrimental to Indigenous people’.[5] This is seen in the written and unwritten policies and practices entrenched in institutions, such as Victoria Police, which appear neutral but disproportionately harm certain racial and ethnic groups while benefitting others.

Since colonisation, the rules that have governed Australia, both spoken and unspoken, have privileged whiteness.[6] The privileging of whiteness, and the culture and values that came to Australia from England are entrenched in the colonial laws and institutions that make up Australia today – from the police to Parliament House.

In practice, systemic racism means that an Aboriginal woman like Ms Day was almost 11 times more likely to be targeted for being drunk in public than a non-Indigenous woman.[7] This is despite public drunkenness being an offence that most people commit, whether leaving the footy, a pub or Friday night drinks at work.

On 25 June 2019, the Coroner said that she would take systemic racism into account during the inquest and ‘allow witnesses to be questioned as to whether racism played a part of their decision making, including Ms Day’s treatment, options considered, their motivations and potential unintended effects of their decision making’.[8]

THE INQUEST

A coronial inquest was held into Ms Day’s death because it fell within the definition of a ‘reportable death’, as she died as a result of injuries sustained while in police custody.

The inquest commenced on 26 August 2019 and ran for 14 days. Representatives from V/Line, Victoria Police, the investigating police officer and Ambulance Victoria gave evidence and were cross-examined about their decisions and the relevant and applicable rules, policies and procedures. Final submissions were heard on 11 November 2019.

In a powerful written submission made by the Day family, Ms Day’s story was told in her voice, through her children. In part, those submissions called on the Coroner to consider the role that racism played and to hold those responsible accountable:

‘I need you to see, and to acknowledge, that my death was caused by the same system that killed my uncle, Harrison Day, the same system that dispossessed and killed so many of my ancestors and so many other Aboriginal people; that fractured our communities and culture, and caused deep intergenerational trauma. I need you to see that this is not past history, this is the ongoing story of our country.

I need you to tell the truth about this.

I also need you to hold those involved accountable, and to refer the people involved for a proper criminal investigation and trial.

You are a part of the same system, but you have the opportunity to transform it, by speaking the truth, and holding the system itself accountable.

It is not enough to change the law on public drunkenness. I need you to tell the truth about why the law was applied to me differently from the way it would have been applied to a white Australian grandmother, drunk and asleep on a train, on her way to Melbourne to visit her daughter; about why the police took me into a cell, rather than to hospital or home; about why the police treated me like a criminal and completely failed to care for me, even though they said they were imprisoning me for my own safety.

If you don’t do that, nothing will change.’[9]

KEY FINDINGS FROM THE INQUEST

On 9 April 2020, the Coroner handed down her findings. The official cause of death was a left cerebral haemorrhage of traumatic origin in a woman with liver cirrhosis.[10] While the Coroner said she could not make a finding that Ms Day’s death was preventable, Her Honour said ‘there was an opportunity lost (for her survival)’.[11]

Treatment by V/Line

The Coroner found that the decision-making process of the V/Line train conductor – who formed the view that Ms Day was ‘unruly’ and triggered the police attending the train station – was influenced by the train conductor’s unconscious bias.[12]

The Coroner also found that the decision to define Ms Day as ‘unruly’ and seek assistance from the police rather than pursue other options was influenced by her Aboriginality.[13]

This was in circumstances where Ms Day was the only sleeping passenger the V/Line train conductor had ever asked the train driver to call for police assistance to remove from the train (although he gave evidence that he comes across three sleeping passengers a week).[14]

Treatment by Victoria Police

Disappointingly, the Coroner did not find that the decision to arrest Ms Day was influenced by her Aboriginality and instead said that once the arresting police officers formed the view that it was unsafe to leave her sleeping on the train, arrest was the only viable option.[15]

The Coroner did, however, note that the decision to take Ms Day to the Castlemaine police station, instead of a hospital, was not in accordance with relevant guidelines given that Ms Day’s presentation should have required police to take her to hospital or seek urgent medical advice.[16]

While in custody, the Coroner found that the checks conducted on Ms Day were inadequate and that the evidence given during the inquest indicated a ‘culture of complacency regarding people who are drunk’[17] within Victoria Police. This was said to show ‘the power of stereotype and its resistance to correction’.[18]

As a result, the Coroner found that the police had failed to take proper care for Ms Day’s safety, security, health and welfare as required by the Victoria Police Manual and Standard Operating Procedures;[19] had the checks been conducted by the police in accordance with the relevant requirements, Ms Day’s deterioration may well have been identified and treated appropriately earlier.[20] Further, the Leading Senior Constable responsible for checking on Ms Day was found not to be a credible witness.[21]

Notably, the Coroner stated that the Victorian Charter of Human Rights and Responsibilities Act 2006 is relevant to how police carry out their duties, and Her Honour made a finding that Ms Day was ‘not treated with humanity and respect for the inherent dignity of a human person as required by the Charter’ by Victoria Police.[22]

Treatment by Ambulance Victoria

The Coroner found that the treatment of Ms Day by the first Ambulance Victoria paramedic who attended the Castlemaine police station was ‘anchored’ in her quickly formed view that she was intoxicated,[23] but that there was no specific action taken by the paramedics that impacted on Ms Day’s death.

No findings were made regarding whether Ms Day’s Aboriginality had influenced her treatment by the paramedics. The Coroner noted that Ambulance Victoria had apologised to the Day family and that extensive evidence was given about how the organisation is trying to improve cultural safety for Aboriginal and Torres Strait Islander people.

Notification of possible indictable offence

While the Coroners Court is not able to determine guilt in relation to criminal offending, the Coroner found that the totality of the evidence supported a belief that an indictable offence may have been committed.[24] Accordingly, the Coroner directed that the Director of Public Prosecutions be notified.

Criticisms of the coronial investigation

The Day family made a number of criticisms about the conduct of the coronial investigation, including concerns about the failure to collect all of the CCTV footage from the Castlemaine police station and the failure to treat the police officers involved in Ms Day’s death as suspects. This gave rise to a perceived conflict of interest arising from police investigating the actions of other police.

While the Coroner did not find that the quality of the coronial investigation was detrimentally affected, she made a recommendation seeking legislative recognition that the Coroner should direct the coronial investigation, rather than relying on the current convention with Victoria Police.[25]

RECOMMENDATIONS

The Coroner made ten recommendations:[26]

1. The Victorian Government decriminalises the offence of public drunkenness.

2. The Victorian Government legislates that the Coroner directs the coronial investigation, rather than relying on the current convention with Victoria Police.

3. V/Line reviews training materials to include input from the Aboriginal and Torres Strait Islander community about unconscious bias and provides training for staff on how to reduce the impact of unconscious bias in their decision-making.

4. V/Line requests the Victorian Equal Opportunity and Human Rights Commission to conduct a review of the compatibility of its training materials with the Charter of Human Rights and Responsibilities Act 2006.

5. Victoria Police reviews the Victoria Police Manual and amends it to include a falls risk assessment for people in custody whose balance may be affected by alcohol, drugs or illness.

6. Victoria Police reviews its training and education regarding the Royal Commission into Aboriginal Deaths in Custody and its recommendations.

7. Victoria Police implements training for all Victoria Police regarding the Victoria Police Manual and local standard operating procedures regarding the mandatory requirements applicable for the safe management of persons in police care or custody.

8. Victoria Police implements training regarding the medical risks of people affected by alcohol.

9. Victoria Police requests the Victorian Equal Opportunity and Human Rights Commission to conduct a review of the compatibility of its training materials with the Charter of Human Rights and Responsibilities Act 2006.

10. The current volunteer model for the Aboriginal Community Justice Panel (ACJP) be reviewed as to its effectiveness in providing protection for Aboriginal people in custody, and that included in this review is a clarification of the services offered by the ACJP with both Victoria Police and the Victorian Aboriginal Legal Service.

SIGNIFICANCE OF THE INQUEST

This coronial inquest is significant for many reasons.

The Coroner’s recommendation that the offence of public drunkenness be abolished has been taken on board by the Victorian Government, which has committed to repealing the offence and replacing it with a public health response. When that happens, Queensland will be the only state with the offence of public drunkenness still on its statute books.

The explicit inclusion of systemic racism within the scope of the inquest is an Australian first and the consideration of the evidence given during the inquest through this prism sets a precedent for evidence in future coronial inquests to be scrutinised through a similar lens.

The inquest culminated in the referral of the police officers involved in Ms Day’s death for criminal investigation. This is significant, given that hundreds of Aboriginal people have died in police custody, yet no police officer has ever been held criminally responsible.

This inquest should be a moment of reckoning for Victoria Police and the Victorian Government. It comes at a time when Aboriginal and Torres Strait Islander women continue to be over-represented in the criminal legal system; earlier this year, Yorta Yorta woman Veronica Nelson died alone in prison after being arrested and refused bail for shoplifting.

Racism and incarceration are a lethal combination and it should not be left to Aboriginal families, like the Day family, to fight for justice. Rather, governments must be proactive in fixing the myriad of discriminatory laws and policies that result in Aboriginal and Torres Strait Islander people continuing to die in custody.

Monique Hurley is a Senior Lawyer at the Human Rights Law Centre and was the instructing solicitor for the Day family during the coronial inquest. EMAIL monique.hurley@hrlc.org.au.


[1] Summary Offences Act 1966 (Vic), s13.

[2] Royal Commission into Aboriginal Deaths in Custody (Report, 1991) (Aboriginal Deaths in Custody Report), rec 79.

[3] See Ibid, Aboriginal Deaths in Custody Report, Individual death report for Harrison Day, <www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/harrison/>.

[4] Victorian Government, ‘New health-based response to public drunkenness’ (Media release, 22 August 2019) <www.premier.vic.gov.au/new-health-based-response-to-public-drunkenness/>.

[5] H Blagg, N Morgan, C Cunneen and A Ferrante, Systemic Racism as a Factor in the Over-representation of Aboriginal People in the Criminal Justice System, Report to the Equal Opportunity Commission and Aboriginal Justice Forum, Melbourne (2005) 12.

[6] As explained in Aboriginal Deaths in Custody Report, above note 2, [1.4.10]: ‘Non-Aboriginal Australia has developed on the racist assumption of an ingrained sense of superiority that it knows best what is good for Aboriginal people.’

[7] Based on data obtained by the Human Rights Law Centre from the Crime Statistics Agency.

[8] Inquest into the death of Tanya Louise Day, Ruling on application regarding the scope of the inquest, Coroner English, 25 June 2019, [81].

[9] The Day family, Submissions by Belinda Day/Stevens, Warren Stevens, Apryl Watson and Kimberly Watson, The Children of Tanya Day, Submission to the Inquest into the death of Tanya Louise Day, COR 2017/6424, 15 October 2019, 3.

[10] Inquest into the death of Tanya Louise Day, Findings, Coroner English, 9 April 2020, 31.

[11] Ibid, 34.

[12] Ibid, 42.

[13] Ibid, 42.

[14] Ibid, 41.

[15] Ibid, 47.

[16] Ibid, 51.

[17] Ibid, 87.

[18] Ibid, 89.

[19] Ibid, 88.

[20] Ibid, 89.

[21] Ibid, 89.

[22] Ibid, 90.

[23] Ibid, 100.

[24] Ibid, 103–4.

[25] Ibid, 106.

[26] Ibid, 107–9.


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