Behrendt, Jason Behrendt, Larissa --- "Recommendations, Rhetoric and another 33 Aboriginal Deaths in Custody: Aboriginal Custodial Deaths since May 1989" [1992] AboriginalLawB 50; (1992) 1(59) Aboriginal Law Bulletin 4

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Since the publication of the article ‘Recommendations, Rhetoric and Another 33 Aboriginal Deaths in Custody: Aboriginal Custodial Deaths Since May 1989” (AboriginalLB 59/4), the solicitor acting for two of the Aboriginal people mentioned in that article has requested that their names be suppressed.

As a result the authors of the article would request that any reproduction of the article avoid the using of the names of the 43 year old man who died on 13 February 1991 in Port Augusta and the 35 year old man who died on 1 March 1991 in Port Augusta Prison.

Introduction

In the three years after the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) closed its investigative doors on 30 May 1989, 33 Aboriginal people died in custody.

In the period investigated by the RCIADIC it was revealed that Aboriginal people were dying in custody at a rate of just under one a month. In the period discussed in this paper the rate has stayed roughly the same. As shown in Figure 2, 78% of those deaths have occurred in New South Wales, Queensland and South Australia alone.

During the period within which these deaths occurred, Commonwealth and State governments have had the benefit of an Interim Report, Reports of Inquiry into 99 individual deaths, Regional Reports of Inquiry from each state, and a five volume National Report, all published by the RCIADIC and all emphasising various aspects of criminal justice reform necessary to reduce the number of Aboriginal people dying in custody.

The hundreds of recommendations delivered by the Commission have gone largely unheeded. As a result the national rate of Aboriginal custodial deaths has not decreased, and many of those who have died have done so because key areas of reform highlighted by the Commission have not taken place.[1]

Interim Report in General

The primary aim of the Interim Report was to "express recommendations and suggestions which if implemented may serve to improve practices and procedures and limit future custodial deaths ..."[2] Muirhead concluded with the warning

Each of the deaths listed in Figure 1 occurred after the release of the Interim Report. Furthermore, it appears that many of the problems raised in Individual Reports of Inquiry relating to prison and police procedures and general criminal justice issues were deemed by governments to be not worthy of action.

It would have been thought that the Individual Reports, but more specifically the Interim Report should have provided sufficient motivation for changes rather than the relevant bodies waiting for the National Report recommendations which remain largely unimplemented.

Figure 1

Name	Age		Date	Place of Last Custody	Cause of Death
Gerard Peal	17	4-7-89		Police Cell, Ceduna, SA	Found Hanging
Jack Scott	50	11-7-89		Police Cell,Port Hedland, WA	Heart Attack
James Sailor	26	13-7-89		TownsvilleWatchhouse,Qld	Found Hanging
David Kitson	28	25-7-89		Long Bay Gaol, Sydney, NSW	Found Hanging
Dennis Seaton	21	5-8-89		Watchhouse, Townsville, Qld.	Medical Condition
Dermot Pidgeon	17	21-10-89		Maitland Prison, Maitland NSW	Found Hanging
Steven Naylor	28	25-10-89		Silverwater Prison,Sydney, NSW	Inner Ear Infection
Ken Duggan	75	29-10-89		Police Cell, Sale, Vic	Pneumonia
Malcom Abdullah	30	4-11-89		ModburyPrison, Adelaide, SA	Leukaemia
Michael Lestie	24	8-1-90		Parklea Prison, Sydney, NSW	Overdose of Methadone
Russell Lawto	21	2-4-90		Etna Creek Prison, Rockhampton, Qld	Found Hanging
Robert Hopkins	24	3-4-90		Etna Creek Prison, Rockhampton, Qld	Found Hanging
Suppressed	48	28-4-90		Elcho Island, NT	Shot by Police Task Force
Wayne Coppini	19	31-5-90		Long Bay Gaol, Sydney, NSW	Epilepsy
Raymond Bonny	40	30-6-90		Mobilong Prison, SA	Found Hanging
Craig Sandy	28	17-10-90		Mornington Island Watchhouse,Qld	Brain Haemorrhage
David Jason Barry	17	12-1-91		Lotus Glen Prison, Mareeba,Qld	Found Hanging (was HIV+)
Edward lsaacs	35	25-1-91		Canning Vale Prison, Perth, WA	Heart Attack
Suppressed	63	13-2-91		Port Augusta,SA	Pneumonia
Suppressed	35	1-3-91		Port Augusta Gaol, SA	Pneumonia
Sidney Punch	34	2-5-91		Watchhouse, Rockhampton, Qld	Inherent Medical Condition
JohnBeck	25	29-5-91		Lithgow Prison, Lithgow, NSW	Not Known (was HIV+)
Mark Nichols	47	10-6-91		Parklea Gaol, Sydney, NSW	Self-inflicted Wounds
KevinDixon	34	12-6-91		Long Bay Gaol, Sydney, NSW	CardiacArrest
Stephen Webster	39	1-8-91		Police Custody, Adelaide, SA	Heart Attack
Noel Kelly	49	25-8-91		Risdon Gaol, Hobart, Tas.	Found Hanging
Joseph Roberts	39	26-8-91		Police Cell, Bendigo,Vic.	Found Hanging
Marlene Tomachy	44	11-11-91		Palm Island Walchhouse,Qld	Head Injury
Darryl Cameron	21	16-12-91		Greenough Regional Prison, Geraldton, WA	Found Hanging
Glen Hill	17	22-12-91		Sir David Longland Gaol, Qld	Found Hanging
Daphne Arrmstrong	61	25-5-92		Brisbane City Watchhouse,Qld	Suspected Heart Attack
Phyllis May	38	10-6-92		Police Cell, Maquarie Fields, NSW	Found Hanging
Anthony Cain	43	24-11-92		Richmond, NSW	Not Known

Imprisonment as a Last Resort

Despite comprehensive guidelines throughout the RCIADIC, between 30 June 1987 and 30 June 1991 the national Aboriginal prison population increased by 25% with NSW recording an 80% increase in Aboriginal prisoners.[5] The increase in the Aboriginal prison population was disproportionate to the growth in the non-Aboriginal prison population in most states. For example, in NSW while the Aboriginal population jumped by 80%, the non-Aboriginal population only grew by 54%.[6] One suggested reason for such an increase in NSW was the reintroduction of the Summary Offences Act 1988 (NSW) which has seen a massive increase in the number of people charged with offensive behaviour and offensive language, offences which Aboriginal people are most over-represented in.[7]

The oppressive use of the NSW Summary Offences Act was commented upon by a recent mission of the International Commission of Jurists Australian Section into north-west NSW. The ICJ Australian Section revealed that Aboriginal people were still being imprisoned solely for offensive behaviour or language[8] and that the majority of offensive language and behaviour cases were commenced by arrest and not summons.[9] Despite the observations of the ICJ Australian Section, the NSW Government has said it has implemented Recommendation 87(a) of the National Report which requires that "all police services should adopt and apply the principle of arrest being the sanction of last resort..."[10] Clearly, the claim of implementation is farcical.

The judiciary has been equally unresponsive. The case of David Barry exemplifies the unwillingness of the judiciary in some areas to take advantage of alternatives to prison. It is difficult to imagine a situation where an alternative to prison would be more appropriate than for a 17 year old AIDS victim who was only expected to live for two years.[11]

Figure 2

The National Report provides extensive recommendations outlining the need to use imprisonment as a last resort. The immediate implementation of these recommendations are essential if further deaths are to be avoided.

Decriminalisation of Public Drunkenness

This was in conjunction with a number of recommendations which required adequately funded alternative facilities for the care of intoxicated persons.[12] These recommendations were repeated in the National Report.[13]

Seven of the 33 Aboriginal people who have died since the RCIADIC were arrested for drunkenness. In Victoria, both Ken Duggan and Joseph Roberts were in detention as a result of being drunk in public. This is despite the recommendations of the Interim and National Reports of the RCIADIC and a separate report by the Victorian Law Reform Commission calling for decriminalisation. The Public Drunkenness (Decriminalisation) Bill which purported to decriminalise drunkenness was opposed by the Victorian Legislative Council inter alia because such decriminalisation "sends the wrong message to the community."[14]

One can only ponder the 'message sent to the community' when a victim of an epileptic fit is taken to a hospital for treatment and ends up dead in police custody after being charged for drunkenness - as was the case with Ken Duggan.

Despite the Qld Government supporting the relevant National Report recommendations, public drunkenness is also still an offence in Qld.[15] Craig Sandy, James Sailor, Dennis Seaton, Marlene Tomachy and Daphne Armstrong, all died after being placed in custody for being drunk. Both Dennis Seaton and James Sailor had what Commissioner Johnston would have referred to as "an endless and useless procession of convictions for alcohol related offences."[16] James Sailor had been detained at Townsville lockup on 34 previous occasions while Dennis Seaton was in the Watchhouse for the fourth night in a row when he died. These people simply should not have been in custody.

Aborigines and the Prison System

An aspect of notable concern in relation to the deaths discussed in this article is the increase in the proportion of Aboriginal custodial deaths that have occurred in Australian prisons. As shown in Figure 3, during the period investigated by the Royal Commission, 33% of the 99 deaths occurred in prisons, however for the period since the cut-off date, 55% of deaths were in prisons. Although this indicates that various Correctional Services Departments have done little to implement the Commission's recommendations to any meaningful degree, two key areas need special attention.

Figure 3

(a) Assisting Aboriginal Prisoners

The deaths of David Barry and Dermot Pidgeon are examples of deaths which may have been avoided had there been greater support mechanisms in place for Aboriginal prisoners. Both were imprisoned long distances away from their communities. From the early stages of the Commission it was evident that such isolation had a severe effect on Aboriginal prisoners.[17]

Dermot Pidgeon had been detained at Endeavour House, the statutory function of which was to adequately maintain the physical, psychological and emotional well-being of detainees and to adequately promote the social, cultural and educational development of detainees, but as Redfern ALS points out, Endeavour House was aimed more at punishment than providing any support for detainees.[18]

Aboriginal Support Programs and contact with the Aboriginal community for Aboriginal prisoners was comprehensively covered by the RCIADIC. Recommendation 168 of the National Report requires that placement and transfer of Aboriginal prisoners should try to enable them to be as close as possible to their place of residence.[19]

The need for a diverse range of support programs is outlined in Recommendation 310 of the National Report. Despite all state governments supporting Recommendation 310, the South Australian Aboriginal Community Recreation and Health Service[20], the Noongar Alcohol and Substance Abuse Service in Western Australia[21] and the Aboriginal Medical Service (AMS) in Sydney[22], which all run programs to assist Aboriginal prisoners, meet frequent opposition and harassment from Corrections staff. This effectively undermines the quality of such programs and certainly highlights a lack of concern for the well-being of Aboriginal prisoners by certain government departments. For example, Aboriginal health workers from the AMS in Redfern, like other Aboriginal workers going into the prison system, have been harassed by prison officers and are questioned by prison officers about the content of what they are going to say to the prisoners during their visits and there is constant surveillance by prison officers over education activities.

National Report Recommendation 183 requires a commitment to Aboriginal support groups within institutions, with such groups being “permitted to hold regular meetings in institutions, liaise with Aboriginal service organisations outside the institution and should receive a modest amount of administrative assistance for the production of group materials and services."

The response of the NSW government was that this recommendation had already been implemented.[23] Yet the experiences of Aboriginal Workers at the Redfern AMS shows that the quality of such programs are being undermined by constant harassment. All other states supported Recommendation 183 with Victoria and WA giving qualified support. The WA Government claimed to be considering the feasibility of a 'Cultural Heritage Education Program', but the support of the WA Department of Corrective Services was with the qualification that "... the department is wary of the formation of groups whose agenda, hidden or otherwise, may be related to the pursuit of socio-political ends such as prisoner rights or lobbying in support of either internal or external political and social causes. The department is of the opinion that such activities may serve to prejudice the good order and management of the prison. Furthermore, the formation of such groups is not considered conducive to the development of a prison regime which emphasises constructive interaction between prisoners and staff".[24]

This statement appears to be indicative of the attitude of Correctional Services Departments and is certain to limit the quality of services that Aboriginal organisations are trying to give to Aboriginal prisoners.

(b) Prison Medical Services

At the time of the Interim Report it was already evident that not only were Aboriginal people more likely to be sentenced to a prison term but were, in addition, more likely to become ill or to die as a result of an illness during their incarceration.[25] This situation has not changed as there are still fundamental deficiencies in prison medical services.

Michael Leslie, Mark Nichols, Raymond Bonny, Suppressed, Edward Isaacs and Dermot Pidgeon[26] were all cages involving clear examples of inadequacies in the procedures of prison medical services, These can be divided into three categories:

(i) Failure to Provide an Adequate Service

One of the dominant Recommendations throughout the RCIADIC relates to the need for those in custody to receive adequate psychiatric care. Muirhead noted in April, 1989, that 'Psychiatric services for Aboriginal people are poorly developed, particularly for those in custody" [27] Commissioner Wootten also commented in reference to the NSW Prison Medical Service that "the psychiatric service provided by the PMS is totally inadequate for its task, badly managed and under resourced"[28] The need for adequate psychiatric care was noted in Recommendation 151 of the National Report. In the case of Dermot Pidgeon, although the Department of Family and Community Services knew there was a possibility of self-harm nothing was done.[29]

The issue of inadequate medical services was exemplified in the case of Edward Isaacs. The Coroner investigating his death noted that Edward Isaacs had so little confidence in the PMS at Canning Vale Prison that he refrained from discussing his health problems in depth with the medical staff.[30] The RCIADIC noted that the under-utilisation of PMS's by Aboriginal prisoners was largely due to a lack of understanding of Aboriginal cultural and health issues by medical staff.

Recommendation 152(g) of the National Report requires Corrective Services, in conjunction with Aboriginal Health organisations, to conduct a review of the provision of health services to Aboriginal prisoners with regard to developing protocols with respect to the care and management of, among others, at risk prisoners, persons known to suffer from serious illnesses such as epilepsy, diabetes or heart disease, angry aggressive or disturbed persons and persons suffering from mental illness. Clearly if such a recommendation had been implemented the deaths of many of those discussed would have been avoided. The need for immediate action is self-evident.

(ii) Failure to Convey Information about Prisoner's Medical Needs to Corrections Officers

The issue of Corrections staff being unaware of the medical needs of those under their care was documented throughout the Commission. One needs to go no further than to outline the outrageous circumstances surrounding the death of Mark Nichols. Despite the PMS being aware of psychiatric assessments that Mark Nichols should not be transferred anywhere except to Parramatta Gaol, the Long Bay placement committee were not informed nor were the medical assessments - that Mark Nichols was a suicide risk and should not be placed in a single cell - passed on to correctional staff at Parklea prison on the basis of ethical reasons relating to the need of confidentiality. It is appalling that in light of such medical evidence and such a blatant need for Corrections staff to be aware of the needs of a prisoner so as to ensure his safety that the prison medical staff would attempt to cower behind a shield of supposed ethical considerations so as to somehow shirk the duty of care that they owe to prisoners. It was apparent to the RCIADIC, but not so apparent to various PMS's, that the need to ensure that the life of a prisoner is not threatened must surely out weigh any right to privacy by an individual. This need was emphasised in the Reports of Inquiry into the Deaths of Malcolm Smith, Tim Murray, Peter Williams, Maxwell Saunders and John Highfold, it was addressed in the Interim Report[31] and indeed the National Report states:

National Report Recommendation 152(f) provides for Corrective Services, in conjunction with Aboriginal Health Services, to review the provision of health services to Aboriginal prisoners in regard to:

(iii) Failure to Send Medical Records with a Prisoner Upon Transfer

That an inability to adequately transfer prisoner medical files still exists in medical services is no more evident than in the case of Raymond Bonny. Recommendation 36 of the Interim Report, stated, in part that:

Recommendation 36 is not an over burdensome requirement, yet the unexplained failure of Raymond Bonny's medical files to accompany him to Modbury hospital led to a wrong diagnosis of his medical condition which contributed to his death.[34] The NSW PMS were not even able to co-ordinate themselves to provide enough information to the placement committed at Long Bay prison with respect to Mark Nichols to ensure that he was transferred to Parramatta Gaol.

Medical Staff and Aboriginal People

The deaths of Ken Duggan and Suppressed duplicated problems that were continuously recognised throughout the RCIADIC of the relationship between Aboriginal people and medical staff. In the National Report, Commissioner Johnston stated:

The 'inaccessibility' of the health care system to Ken Duggan is self-evident. After being taken to hospital in relation to an epileptic fit, he was turned away from hospital because of racist stereotyping by hospital staff. The State Coroner of Victoria's finding in relation to the death of Ken Duggan was that the principle reaction of Dr Vafiadis (the medical practitioner on duty at Gippsland Base Hospital) to the deceased was

In the Report of Inquiry into the Death of Mark Anthony Quayle, Commissioner Wootten observed that:

It is clear that such comments did not send any messages to governments to immediately act to ensure that Aboriginal people were not turned away from hospitals when they required medical attention.

The National Report has tried to address this problem. In addition to general recommendations relating to the training of medical staff in Aboriginal issues.[38]

Again all Governments supported this recommendation, however it is obvious that it has not been implemented to any substantial degree.[39]

Aboriginal People and Police

(a) Dealing with those with an impaired state of consciousness

Recommendation 12 is restated as Recommendation 135 and 136 of the National Report. In neither the cases of Craig Sandy, Suppressed or Ken Duggan were either of these recommendations remotely complied with.

Craig Sandy was found unconscious by Aboriginal police and taken to the lock up. The checking of those in the lock-up by Mornington Island police involved the shining of car headlights through the wire grill.[40] Had the Interim Report recommendations been implemented by the Queensland Government, Craig Sandy may not have died.

Recommendations 136 and 137 are supported by all Governments with NSW, SA, WA and the NT claiming to have implemented this recommendation.

The quality of implementation in South Australia must be treated with scepticism given that Suppressed who had an impaired state of consciousness, was taken to a sobering-up centre where he did not receive adequate medical treatment. The Coroner investigating his death even found it necessary, in 1991, to again recommend that where there is an impaired state of consciousness the police should be alerted of the possibility of some kind of medical condition and they should seek medical assistance.[41]

(b) Police Violence and Racism

Recommendation 60 of the National Report requires that police services take reasonable steps to eliminate violent or rough treatment or verbal abuse of Aboriginal persons, and the use of racist or offensive language by police officers, and that when such conduct does occur, that, it be treated as a serious breach of discipline.[42]

Again, all governments have claimed to have implemented this recommendation.[43] Recommendation 60 is consistent with Recommendation 27 of the Interim Report which called for the screening out of police officers with racist attitudes. Claims of implementation of Recommendation 60 can only be treated as an insult to the Commission's recommendations given that racism is still endemic in the police force - a fact which is supported by well documented police racism such as the mocking of the death of Lloyd Boney and the racist language used in the ABC film Cop it Sweet. As Bill Craigie points out, both the RCIADIC and the Report of the Human Rights Commission into Racist Violence showed that racism and violence towards Aboriginal people was widespread within police forces.[44]

The issue of unnecessary violence arose in the cases of Stephen Webster and Marlene Tomachy. Stephen Webster died of a heart attack after he resisted arrest in a violent struggle with police, while Marlene Tomachy was thrown into a police van and was found unconscious the following morning in the police cells.

Conclusion

Although this discussion of the deaths and their preventability in light of the Recommendations of the RCIADIC has only been very general, a number of conclusions are apparent.

Firstly, many of the deaths that have occurred since 30 May, 1989, would have been prevented had the Interim Report recommendations been immediately acted upon by Governments. The failure of governments to implement the Interim Report recommendations is inexcusable given that their purpose was to prevent further Aboriginal custodial deaths.

Secondly, Reports of Inquiry into Individual Deaths by the Royal Commission have been largely ignored. As a consequences, many of those who died since May 1989 have died in identical fashions to those deaths investigated by the Royal Commission.

Thirdly, many of the key recommendations of the National Report have not been implemented. As a result Aboriginal people are still dying in custody after being detained for no other reason than drunkenness, Aboriginal people are still grossly over-represented in the prison and criminal justice systems and not surprisingly, Aboriginal custodial death rates are still at the same unacceptable level as they were in 1988.

Fourthly, the response of governments to the Royal Commission's recommendations has been, in most areas, unacceptable. Many recommendations were claimed to be implemented by Governments in circumstances where the impact shows that if such implementation has taken place the quality of change is so substandard, the relevant Government need not have bothered.

Unless Governments undertake a real commitment to preventing deaths in custody, those deaths will continue.

[1] The RCIADIC in recommending for continuing monitoring of Aboriginal custodial deaths recommended that custodial agencies should adopt a standard definition of 'deaths in custody' and that such a definition should at least include:

It should be noted that there have been five Aboriginal juveniles killed in police car loses in Perth since the cut-off of the RCIADIC inquiry (See generally, Wilkie, M., 'WA's Draconian New Juvenile Offender Sentencing Laws", Aboriginal Law Bulletin, Vol.2, No.55, April, 1992, pp.15-17.). These would be regarded as deaths in custody under put 'iii' of the above definition but have been omitted from this discussion so as not to distort comparative study of deaths in custody investigated by the Commission. If there deaths are included there have been 37 Aboriginal deaths in custody in the three years since 30 May, 1989.

[2] Muirhead J.H., Royal Commission into Aboriginal Deaths in Custody: Interim Report, 1988, AGPS, p.1.

[5] Cunneen, C., "Aboriginal Imprisonment During and Since the Royal Commission into Aboriginal Deaths in Custody", Aboriginal Law Bulletin, Vol.2, No: 55, April, 1992, pp.13-14.

[8] International Commission of Jurists, Australian Section, Report of Aboriginals and the Law Mission, 5 August 1991, p.50.

[10] Response of Governments to the Royal Commission, Aboriginal Deaths in Custody, Vol.1, AGPS, Canberra, 1992, p.308.

[11] Behrendt J., "Prison as a Death Sentence: The Case of David Jason Barry' in Cunneen C., (Ed), Aboriginal Perspectives on Criminal Justice, The Institute of Criminology Monograph Series, No.1, Sydney 1992, p.29.

[14] Lane, D., "Public Drunkenness in Victoria", Aboriginal Law Bulletin, Vol.2, No.51, August, 1991, p21.

[16] Johnston, E., Report of Inquiry into the Death of Keith Edward Karpanny, RCIADIC, AGPS, Canberra, 1991, p.65.

[18] Aboriginal Legal Service, Inquest into Death of Dermot Pidgeon - Outline of Submissions on Behalf of the Family, pp3-6.

[21] Interview with an Aboriginal worker at the Noongar Alcohol and Substance Abuse Service on 6 April, 1992.

[26] Coronial Inquiries could reveal that John Beck and Noel Kelly should be added to this list.

[27] Muirhead J.H., Report of Inquiry into the Death of Paul Fanner, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra, 1989, p.83.

[28] Wootten, J.H, Regional report of Inquiry into New South Wales, Victoria and Queensland, Royal Commission into Aboriginal Deaths in Custody, ALPS, Canberra, 1991.

[30] McCann, D.A., Coronial Inquiry into the death of Edward Isaacs, 22 October 1991, p.6.

[33] Response of Governments to the Royal Commission, op. cit, Vol.2, pp.571-9.

[34] Leslie Kenneth Gordon, Finding of Inquest Concerning the Death of Raymond Charles Bonny, 3 May 1991; p.7.

[36] State Coroner of Victoria, Record of the Investigation into the Death of Kenneth Robert Duggan, Case No. 4676/89,15 April. 1991, p.6.

[37] Wootten, J.H., Report of the Inquiry into the Death of Mark Anthony Quayle, AGPS, Canberra, 1990, p.110.

[40] Killen, Irvine, Findings and recommendations following Inquest into the muse and circumstances surrounding the death of Craig Gable Sandy, 20 November 1991, P.4.

[41] Ahern, Kevin, Coronial Inquiry into the Death of Suppressed 26 July 1991, pp.10-11.

[44] Craigie, B., "Aboriginal People and the Criminal Justice System in the 1990's" in Cunneen, C., (ed) Aboriginal Perspectives on Criminal Justice, The Institute of Criminology Monograph Series, No: 1, Sydney, 1992, p.14.

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