Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Disclaimer: The Parliamentary Library does not warrant or accept liability for the accuracy or usefulness of the transcripts.These are copied directly from the broadcaster's website.
Law Report -

View in ParlView

Damien Carrick: Hello, Damien Carrick with you, welcome to the Law Report. This Friday marks the 25th anniversary of the Royal Commission into black deaths in custody. The landmark document contained 339 recommendations, and its release in 1991 focused national attention on the dreadful human toll.

Journalist [archival]: Commissioner Johnston says too many Aboriginal people are in custody too often.

Elliot Johnston [archival]: The facts say that Aboriginal people in custody did not die at a greater rate than non-Aboriginal people in custody, it's just that there were more of them there and they were there more often, 30 times.

Journalist [archival]: The treatment of black offenders once inside the police lock-up or prison was the subject of scathing criticism throughout the inquiry, and there are pages of recommendations devoted to precise instructions for monitoring inmates.

Damien Carrick: So how far have we come in the last 25 years?

Carol Roe: 1991, 25 years ago, promised us this and promised us that, but they all talk but they won't do the walk, stand up and do the right thing. We still get treated like dogs.

Damien Carrick: Carol Roe, grandmother of Ms Dhu, a young WA Indigenous woman who died while in police custody in August 2014. Ms Dhu was in police custody because of unpaid fines.

25 years after the Royal Commission, the figures around Indigenous incarceration are much worse. Dennis Eggington, CEO, and Peter Collins, director of legal services, both work with the Aboriginal Legal Service of WA.

Peter Collins: Aboriginal people comprise nearly 3% of the total WA population, and about 39% of the total male population in prisons. Aboriginal women comprise about 50% of the total prison population, and juveniles, Aboriginal juveniles comprise about 70% of the total juvenile detention population in WA. Aboriginal people in Australia are 15 times more likely to be in prison than non-Aboriginal people, and that figure is 20 times higher in Western Australia.

Damien Carrick: How do those figures compare with 25 years ago?

Peter Collins: Very badly. Back in '92 one in seven of all prisoners were Aboriginal. That figure in 2014 is up to nearly one in three.

Damien Carrick: And in terms of the number of women, Indigenous women in prison, have those numbers increased dramatically in recent years?

Peter Collins: They have in this sense, Damien, the statistics in relation to the imprisonment of Aboriginal women in particular for unpaid fines, for fine default, are incredibly troubling. They have increased by 528% since 2008.

Damien Carrick: What about deaths in custody? What were the figures back 25 years ago and what are the figures now and how do they compare?

Peter Collins: Put it this way, the Royal Commission examined 99 deaths over the period from 1980 to 1989. Between 1980 and the latest figures I've been able to come up with have been 2011, there's been 442 Aboriginal deaths in jails and police custody. In some quarters it has been reported that there's been 150% increase in Aboriginal deaths in custody since RCIADIC in 1991. The situation is diabolical, to put it mildly.

Damien Carrick: Dennis Eggington, how would you describe the situation?

Dennis Eggington: It's a blight and a stain on our so-called progressive nation, and it's an international embarrassment to this country. It's something that obviously is not a new phenomenon. The overrepresentation of our people in the prison systems is something that has evolved from this conflict relationship that we've had with the settler society, and so today we can see that probably the most important part of the Royal Commission, which was the underlying social conditions of Aboriginal people, hasn't been addressed in any significant way, and therefore still large numbers, ever increasing numbers of our people, particularly our women and children, are finding themselves inside of lock-ups, and that's the problem, there's always going to be a high number of deaths while that imprisonment rate is so high. So it's not rocket science of why those deaths that Peter read out the numbers are still continuing. What the disgrace is is that no one seems to care or want to do anything about this country locking our people up in the numbers it does.

Damien Carrick: Dennis Eggington, CEO, and Peter Collins, lawyer, both from the Aboriginal Legal Service of WA.

The latest figures from the Australian Institute of Criminology from 2013 showed that over the last decade the rate of death for Indigenous persons in custody has generally been lower than for non-Indigenous prisoners, and compared with previous decades there has been a decline in the rate of both Indigenous and non-Indigenous deaths in custody.

On the other hand, the rate of Indigenous incarceration has dramatically increased in recent times, and that increase, according to the Aboriginal Legal Service of WA, puts more Indigenous people at risk of death in custody. So there are two related questions; why do people die in custody, and why are they in custody in the first place?

Ms Dhu was a Yamatji woman from WA. On 4 August 2014 the 22-year-old was pronounced dead at the Hedland Health Campus, 45 hours after being taken into police custody for unpaid fines. During this period, Ms Dhu repeatedly complained of pain and was twice taken to the health centre and twice returned to the police station. Her health deteriorated, she became unconscious and was taken to the Health Centre a third time. The cause of her death was septicaemia, most likely caused by a broken rib, sustained in a domestic violence incident some three months earlier. Carol Roe is Ms Dhu's grandmother.

Carol Roe: My granddaughter was a happy-go-lucky girl, you know, wasn't a troublesome kid. She grew up a really lovely, bubbly child.

Damien Carrick: You were very close to her, she lived with you I think from the age of two.

Carol Roe: Yes, absolutely, I brought her up, right until she was 22 years of age.

Damien Carrick: Your granddaughter is buried in Geraldton cemetery, which is very close to where you now live.

Carol Roe: Yes, the only thing separating us now is a road to her resting place.

Damien Carrick: And I believe you sometimes spend time at her grave.

Carol Roe: Yes, take her younger sister over and her two nieces to visit her. We do not celebrate Christmas no more because Julieka's birthday is the next day, 26 December. I go there my Christmas Day, sit down there and have Christmas dinner with her on her birthday.

Damien Carrick: Why was she taken into police custody back in August 2014?

Carol Roe: It was outstanding fines. When I rang up the police station in South Hedland and asked why is she in custody they told me she's got outstanding fines of $1,000. And I asked how long, they said she will be out on that Monday. And I asked can I speak to my granddaughter and they said no, she's in custody, they are not allowed to talk to anyone.

Damien Carrick: She was arrested on 2 August 2014 and declared dead less than 45 hours after she was taken into police custody. There has been a colonial inquest and you were at the hearings, which were both last year, and also again just recently in Perth.

Carol Roe: That's correct, and it was devastating and very upsetting to sit there and listen to the police and the doctors and the nurses. They all can't recall…you know, even though when they see the CTV thing, they still can't recall.

Damien Carrick: She was arrested, she was taken into custody, she complained about pain and was taken to the local health service I think twice before she was returned to the police cells. What's your view of the way the police and the way the medical people dealt with her?

Carol Roe: Well, for a start the police done wrong, they did not ring an ambulance, did not take her very seriously, they reckon she's faking this and faking that, and that kid was in pain. When they got to the health campus they can't find the thermometer. One thermometer for all of the triage nurses?

Damien Carrick: So you're not happy with the medical care that she received.

Carol Roe: No, no way, I'm not happy with the medical care. If they would have done their job, my granddaughter would be sitting here with me today, not laid across in the cemetery. And they had the cheek to apologise in the court, to give us our condolence. What a mob of bastards they are.

Damien Carrick: Can I ask you about that CCTV footage? There has been CCTV footage that has been suppressed by the coroner, not released to the media. I think originally that was at the request of the family, but you've actually changed your mind about whether that should be released or not. What's on that footage?

Carol Roe: Myself and Robbie Dhu, her father, we want that released out to the public.

Damien Carrick: What does it show?

Carol Roe: It was devastating, it was so devastated, what they show. My granddaughter, she was just a literally dragged around like a dead kangaroo.

Damien Carrick: This was footage from the police station.

Carol Roe: Police station. Chucked in the back of a paddywagon, a troop carrier.

Damien Carrick: And taken to the health centre for the third time.

Carol Roe: She couldn't climb up there herself, being sick and sore ribs and all that.

Damien Carrick: How do you think Australians would respond if they saw that footage?

Carol Roe: They'd know what we've got to put up with all our life. The whole of Australia, the whole of the world. They invaded us and now we've got to get murdered for it, slaughtered like dogs.

Damien Carrick: I understand that some time ago WA Premier Colin Barnett, he made a promise to you and Della Roe, Ms Dhu's mother, your daughter, that he would address overrepresentation of Aboriginal people in jail and the related deaths in custody. What did he tell you at that time?

Carol Roe: He said he will help us and we will get answers. We shook on it, shook hands. He nursed my baby granddaughter, which she was named after, Julieka.

Damien Carrick: And how long ago was that meeting?

Carol Roe: That was a meeting in Port Hedland last year, I can't recall the date.

Damien Carrick: And you're still waiting for the coronial inquest to hand down its findings, it's just completed its hearings. Are you hopeful that that process will give you the answers that you need and make all of us move to the place that we have to go to to make sure this doesn't happen again?

Carol Roe: Yes, I hope I get the answers, the truth and the justice, everyone is accountable for what they did to my granddaughter.

Damien Carrick: Carol Roe, the grandma of Ms Dhu.

The Aboriginal Legal Service of WA are acting for Ms Dhu's family in the cranial inquest. Here's lawyer Peter Collins:

Peter Collins: Ms Dhu was locked up in the police cells at South Hedland police station because she had failed to pay some fines. She was seriously unwell in the police cells, treated appallingly by police, taken on several occasions to the local hospital where she received less than adequate care and treatment and ultimately died.

Damien Carrick: What was the cause of her death?

Peter Collins: Staphylococcal septicaemia.

Damien Carrick: And do we know what led to that infection?

Peter Collins: It appears that she had had a pre-existing injury to a rib which was the genesis of the condition which caused her death.

Damien Carrick: I've seen reports that that rib injury was actually caused by a domestic violence incident some three months prior to her being arrested.

Peter Collins: That was the allegation.

Damien Carrick: Was she someone who had had a lot of contact with police prior to being taken into custody back in August 2014?

Peter Collins: In the scheme of things she hadn't had a lot of contact with the police, but the contact she'd had with police was adverse. Ms Dhu was 17 when she first came into real contact with the police. And she was in Broome and she was found by police lying asleep on a road, intoxicated. She was woken up by the police and then swore at them, using the F-word and a C-word and then was promptly arrested for an offence called disorderly behaviour. In her drunken condition she failed to provide the police with her personal details, which founded another criminal charge of failing to comply with a request to provide personal details. She is then arrested, taken back to the Broome police station and bailed. She then failed to go to court.

When she was ultimately dealt with in the court she received $200 fines for each of those three offences. As I say, she was 17, she'd never before received from police the benefit of diversionary options to keep her out of the court system. She then comes back to court when she has turned 18. She was in South Hedland, she was at a party, the police turned up, she was heard to be swearing at a friend of hers. She was told to stop swearing. She swore at the police and she is again locked up for disorderly behaviour, and she was fined $400.

She was also later charged with a series of offences, sometimes colloquially referred to as the hamburger with the lot; disorderly behaviour, obstructing police and assaulting police, arising out of a pretty benign drunken altercation, again with police, where she was accused of obstructing them by waving a finger at a police officer as the police officer tried to arrest a friend and trying to pull away when they went to arrest her, and then allegedly kicking a police officer a couple of times but not causing injury.

My point about all that is this, Damien, this is the modern world, every which way you turn, whether it's liked or not, every one of us encounters swearing. It should not be the subject of a charge and prosecution and a criminal sanction in this modern age, and that was one of the recommendations of the Royal Commission 25 years ago which is routinely ignored by police.

Damien Carrick: So it came back to Ms Dhu, she has these fines for these very minor offences going back a number of years. They sort of accumulate interest.

Peter Collins: They accumulate court costs in the purported enforcement of them, that's correct.

Damien Carrick: By 2014 I think they were up around the $3,000 mark, and she came into contact with police. Do we know how she came into contact with police? Why did they come across her to arrest her?

Peter Collins: It's unclear as to how the police came in contact with her but she is then arrested.

Damien Carrick: Taken into custody, and 45 hours later she is dead.

Peter Collins: Correct. But the other important point to make in relation to that, Damien, is disorderly behaviour is an offence in WA which cannot be punished by imprisonment. In effect the maximum penalty is a financial one.

Damien Carrick: The coronial inquiry is ongoing, hearings have been held in two blocks, I think there was one back in September or October last year, and another which finished just a week or so ago. What did we learn from the evidence heard at those inquests about the care she received, both in police custody and also on her various trips to the health centre?

Peter Collins: The proceedings commenced with hours of excruciating footage, CCTV footage of Ms Dhu in the cells at South Hedland police lock-up. That footage showed Ms Dhu being mocked, ignored and dismissed by police, including being laughed at by police as she choked on her own vomit in the cells. In so far as her medical care is concerned, various experts gave evidence in relation to the quality of the medical care. In my view the evidence was damning. In particular, a medical practitioner, a professor of rural health at UWA gave evidence that the experience of many Aboriginal people in WA healthcare settings was reflective of a form of institutional racism.

An emergency department specialist noted that Ms Dhu's imprisonment, her drug use and a rib injury provided what he described as distractions for medical staff in assessing how ill she really was. The inescapable truth in my view is that Ms Dhu was shrugged off as effectively bunging it on by doctors and police because of a series of interrelated inequalities; she was an Aboriginal woman, she was poor, she was in custody, she was in a remote part of Australia, she had been using drugs, and she was a victim of domestic violence it appears. She was treated differently and with less humanity and her concerns treated with less concern and urgency than would have been the case with a non-Aboriginal person.

Damien Carrick: Dennis Eddington, a decision was made by the coroner to suppress this CCTV footage. The family now want it made public. Do you think it should be released to the media?

Dennis Eggington: Absolutely Damien. Anyone who saw that would obviously look at it and be shocked and horrified and then something would be done about it. I can't understand the decision not to show that. All the evidence we have before ourselves, even the imagery that led to the very successful '67 referendum showed Aboriginal people living in cars, in poverty, and it seems that imagery is very important to change the mindset of the rest of Australia. The whole thing that Peter has described is terrible injustice from day one right through, and not letting that video go public and letting people see is also an injustice.

Damien Carrick: The footage has been described to me by Carol Roe, Ms Dhu's grandma, as very distressing. She described the footage as showing her granddaughter being dragged around the police station and being flung (she uses this expression) like a dead kangaroo into the land cruiser to be taken to the health centre. Is that your understanding, Peter and Dennis, of what this footage shows?

Dennis Eggington: Yes, definitely, Damien.

Damien Carrick: The coronial hearings are now over. The coroner is now writing her report. What do you want to see emerge from this coronial inquest into Ms Dhu's death? Dennis?

Dennis Eggington: I want to see someone charged, I want to see someone finally get charged with a failure of duty of care to one of our people. Someone has to be prosecuted for these deaths, otherwise they will continue to happen.

Damien Carrick: Peter Collins, what do you want to see come out of the inquest?

Peter Collins: Obviously we'd like to see recommendations in relation to custodial care considerations for Aboriginal people in police custody. But one of the things that has troubled me for many years up until this very day, Damien, is the way in which Aboriginal people are treated by police in WA. We have a myriad of examples over a very long period of time of Aboriginal people being charged and prosecuted completely unnecessarily by WA police for the most innocuous offences. That attitude by police has to change if there is going to be any meaningful alteration in incarceration rates and any sort of diminution in deaths in custody.

Damien Carrick: Ms Dhu unfortunately is not a unique case. I believe that just last month or even just several weeks ago there was another inquest taking place, this time in Broome involving a woman we will call Ms Mandijarra. Tell me about her case.

Peter Collins: Ms Mandijarra was an Aboriginal woman from an East Kimberley Aboriginal community called Balgo. She'd been living rough in Broome. She was arrested by police in Broome, sitting on an oval which is in the middle of the Broome townsite, drinking alcohol with friends. She was charged with an offence which is known as street drinking, in other words drinking in public. She was very drunk when she was arrested by police but she was otherwise behaving herself.

She was then taken to the Broome police station and put in a police cell. She was lying in the same position in that heavily intoxicated state on a concrete floor of the police cell for at least six hours before police attempted to rouse her. She was dead. She was not physically checked by police after she was placed in the cell, and the evidence given by police in the inquest was that they couldn't do these regular cell checks to check on her welfare because they were understaffed and too busy.

Damien Carrick: Her inquest again is ongoing, and presumably the coroner will release their findings in the next few months. Again, you'd want some kind of recommendations about when and how Indigenous people are taken into custody.

Peter Collins: You'd hope so Damien, and the position with Ms Mandijarra is this, there were several other options clearly open to the police which, as I understand it, they accepted, rather than arresting her and taking her back to the police station. In most regional towns in WA where there are significant numbers of Aboriginal people, there is a patrol, a bus which picks up intoxicated Aboriginal people and takes them to a sobering-up shelter where they are looked after, given a shower, something to eat, if the need arises, a change of clothes, and they are allowed to sober up and obviously leave the next morning. They are looked after. That option was clearly open to the police. There is a patrol called the Kullari patrol in Broome that works every night of the week. And it flies in the face of a recommendation of the Royal Commission 25 years ago which urged police…this is recommendation 86, urged police to examine and monitor the use of offensive language charges, and in tandem recommendation 88, that police services should consider in collaboration with Aboriginal organisations whether there is over-policing or inappropriate policing of Aboriginal people in any city or regional country town. It just doesn't happen.

Damien Carrick: Well, let's come back to that Royal Commission. In April 1991 it handed down its report into the 99 deaths over that period, 1980 to 1989. There were 339 recommendations. How many of those recommendations have been implemented and how many have not been implemented?

Peter Collins: That's a very difficult question to answer. In the WA setting there was a state government committee which examined in part the implementation of recommendations in WA, and it handed down its report in 2013. And if you scan through, most of the state government agencies which have an involvement with Aboriginal people, child protection, the Department (as it was then known) of Indigenous Affairs, corrective services, and of course WA police, those sorts of agencies asserted that there had either been total implementation of recommendations pertaining to their area of responsibility, or near complete compliance with the recommendations.

The experience of the Aboriginal Legal Service of Western Australia would be that in terms of a practical recognition and application of the recommendations has completely and utterly dropped off the radar in terms of these sorts of agencies, particularly WA police. Concerningly though Damien, in the corrective services domain, unsurprisingly recommendation 165 was that equipment and facilities at corrective institutions, including hanging points, be scrutinised, and any potential for causing harm be eliminated or reduced has only been partly implemented. And we know from inquests that we've done into deaths in jails in WA in recent years, that there are still hanging points in many WA jails. So in terms of practical implementation and acknowledgement of the recommendations, in our view there is still a very long way to go.

Damien Carrick: Dennis Eggington, how will you be spending this Friday, the 25th anniversary of the Royal Commission?

Dennis Eggington: Reflective. I've had family members who have died in custody myself. I've had a lovely nephew who was a victim of suicide, and I say a victim of suicide because it's such proportionally horrendous numbers of our people dying. So I'll be reflective and thinking about those people whose lives could have been saved, and hope that some of that reflection is about a better place for the future of all of us.

Damien Carrick: Your nephew who committed suicide, that was in custody was it?

Dennis Eggington: No, no that wasn't, but harassment from the police and continuing police involvement in his life was one of the issues that I believe and his mother and father believe led to his suicide.

Damien Carrick: Dennis Eggington, CEO of the Aboriginal Legal Service of WA, and before him Peter Collins, director of legal services with the same organisation.

That’s the Law Report for this week, thanks to producer Anita Barraud and to technical producer Matthew Crawford. I'm Damien Carrick, talk to you next week with more law.