it is time to once more look at some custodial issues to help bring us up to date at what is happening in the custodial systems of this state and the country.
below there is a photo of mr briscoe that the family have given us permission to use.
we begin with the police death of kwementyaye briscoe ( thanks for the report mo) by the nt police who took him to alice springs lock-up on a protective custody order. he was charged with no crime but was taken for his own safety. for his own safety he should have been left alone, taken to a sobering-up centre or even taken home. that is safe. police cells, notoriously and historically, are not. that is why the royal commissioners into black deaths in custody, 20 years ago, gave us recs.79, 80 and 81 to make police cells safe by not putting inebriated aborigines in the cells but elsewhere. rec122 and rec.123 were made to remind police of there legally enforceable duty of care to detainees, both drunk and sober. rec.134 charged the police to be both humane and courteous to the inebriated detainees. and recs.135, 136 and 137 were given to police to warn and instruct them that unconscious detainees be taken immediately to a hospital or medical centre and also stressed the absolute importance of regular cell checks for inebriated detainees..
rec.155 and rec.161 instructs the police to take special care relative to the health problems of aboriginal detainees but especially when the are unconscious or not responding to police queries.
all of these recommendations were not so much broken but arrogantly ignored by those police officers on duty the night mr. briscoe died but his death was absolutely caused by those police officers not doing their job properly and for that they should, at the very least, be sacked from the nt police force. these are not the officers we want in our police forces. ever
the actions or rather the non-action of the nt police to implement a coroners recommendation is mirrored throughout every police jurisdiction. if it costs dollars or is seen to be interfering with what is seen as normal police practices, then it is ignored. corrective services is little different. recommendations, even if they are accepted by the police executive are just ignored by rank and file officers.
the admissions of junior police that they did not carry out their correct duties relative to their duty of care to those in their cells count for little and mean even less. their first defence is that they were unaware of a particular protocol or they were distracted at the time. when the cell alarms are activated, as on the night when mr briscoe died, they should have been immediately answered but the internet and the i-pod carry their own fascinating distractions.
coroner cavanagh, in another previous case, had recommended that a senior full time police officer be on duty at the watchouse and not just junior staff. recommendation ignored. we await the coroner's decision with much interest. will he recommend that both senior and junior officers be dismissed from the force? will he, again, repeat recommendations that he has done many times previously? probably more the latter than the former but by doing so cavanagh will not save lives and police deaths will continue. back in the mid-nineties we informed both the then police commissioner, peter 'thumper' ryan from the uk, and senior assistant commissioner ron woodham of corrective services that if they both wanted to stop deaths in custody they should be prepared to allow their people to face trial. both were aghast at this thought and history tells us the rest. they both have much blood on their hands but their pensions will keep them warm.
whilst i personally think that coroner cavanagh to be honest to his job he must surely by now be exasperated by the nt police continuing to ignore his recommendations. he hopefully will reach a point that he must come down harder on the police involved in the death of mr. briscoe. police must learn that they are not a protected elite above we normal beings but that they have an innate duty of care and it is now the time for coroners to make a legal example of those police who err. coroners are charged under the various coroners acts to at least attempt to ascertain that similar deaths do not reoccur because some police are incapable of doing their job properly and we fully have the expectation that they are more than capable of following sensible instructions. after all, we do not pay their wages, etc. to be on the internet or socialising on their i-pods.
will we get real justice for mr. briscoe and his family? we await the decision of coroner cavanagh. and like the police, state and territory coroners also have a duty of care to the families of those who die in custody and to the general public that similar deaths in custody for similar reasons will, at worst, be greatly reduced or, at best, be eliminated altogether. whilst it is well known that there is a preference to exonerate police by coroners, this bias must change and must change now.
there are, of course, two more players in these death in custody dramas and they are the police commissioners and police ministers around australia. there are many cogs to the justice wheel and it takes all of those main cogs, and us, to make sure that justice is really done without fear or favour to any one cog in the group. too often premiers/ chief ministers rush to publically support 'their' police (they are supposed to be our police!!!) sometimes within hours of a death in custody event whilst the families are admonished to wait for the outcome of the police on police investigation. no justice there, mr premier/chief minister! police commissioners also stand toe to toe with their respective political leaders whilst mouthing the same inane platitudes. this signals to the police that they will be protected by the two systems, the political and their police culture, from any concerns of being legally responsible for any death in custody. and so it goes on.
the weak link in the chain of responsibilities is, i believe, the coroners but none yet have shown, publically, their often-stated love of law and justice. to do so would damage their careers and their retirement benefits but surely, please, just one brave coroner should not be too much to ask for. we were made aware of a good coroner during the multiple inquests and legal investigations during the death of mulrunji doomadgee by then senior sear chris hurley on palm island and that was ms. Christine clements who announced strongly that hurley most definitely had to be charged with manslaughter at least.
i hope that the next brave one is coroner cavanagh.
murder by contempt …..
For Kwementyaye Briscoe, Wednesday January 4 was just another too-hot day in a too-short life.
Kwementyaye spent a few hours with family cooling off at the local pool before heading down to the bed of the Todd River to have a few drinks with friends in the sandy shade of its massive River Red Gums. During the day the temperature had topped 40C and a light sprinkle of rain hadn’t done much to take heat out of the day. Later his group moved a few kilometres away to a suburban park as the sun fell from the sky.
Just another bleary day for an habitual drunk, who, at just 27 years old, had been in police protective custody - aka the drunk tank - 31 times. So there was nothing unusual when just after 9pm that night a Northern Territory Police paddy-wagon pulled up and took Kwementyaye and others in his party into protective custody for his 32nd time.
Then the whole day went to shit.
Shit for Kwementyaye, his friends and family. Shit for the 10 NT Police officers that dealt with him before he was found dead in a cell in the Alice Springs Police Station watch-house just before 2am on the morning of Thursday, January 5.
Somehow one of Kwementyaye’s cousins had smuggled a 750ml bottle of rum - “hot stuff” - into the back of the paddy-wagon, which they promptly consumed in the 20 minute ride to the watchhouse. According to evidence given at Kwementyaye’s inquest in Alice Springs last month, he skolled better than half of that bottle and by the time they arrived at the watch-house he was, as we say here, “full-drunk”. This half bottle of hot-stuff may have added up to 0.23% of Kwementyaye’s 0.375% blood alcohol content - a level that would have most of us unconscious or close to death.
By the time they got to the watch-house Kwementyaye was so shickered that he couldn’t walk un-aided from the paddy-wagon and was dragged face-down into the watchhouse, where he lay unresponsive for a few minutes, prompting one officer to push a pen into his fingernail to test his responses. This may have sparked Kwementyaye into action because, as Constable Gareth Evans told Coroner Greg Cavanagh, he then became unco-operative and argumentative.
Constable Evans slung Kwementyaye across the watch-house reception area, his head and arm hitting the reception desk before he fell bleeding to the watch-house floor. After processing Kwementyaye was carried groaning and gasping to a cell, where he was placed in an awkward position, his body askew on a cell mattress, his neck and head twisted against a concrete block.
Police cleaned Kwementyaye’s blood from the watchhouse floor. No-one saw fit to have Kwementyaye checked by a nurse or taken to hospital five minutes up the road, preferring instead to follow OiC Sergeant William McDonnell’s instructions to let him “sleep it off”.
Whether Kwementyaye was asleep or unconscious is unclear but his condition was of such concern to his fellow prisoners that they made repeated attempts to alert watch-house police to Kwementyaye’s condition, using alarm buttons connected to the watch-house desk phone.
There is no doubt that all of the police officers who had dealings with Kwementyaye that night are now very sorry for their failings. Each has given their heartfelt apologies to Kwementyaye’s family. Sergeant McDonnell told the inquest that he would carry Kwementyaye’s death for the rest of his career. He told the inquest that he and other police had become “complacent” about drunks turning up to the watch-house with head wounds.
At 11pm the graveyard shift came on duty.
Probationary Constable David O’Keefe told the inquest that despite instructions from Acting Sergeant Andrew Barram that he make regular observations of Kwementyaye he didn’t make a single check from the time he came on duty at 11pm until Kwementyaye was found dead in his cell by Sergeant Barram when he returned to the watch-house almost three hours later. Instead O’Keefe spent some of that time on the net and playing with his iPod.
O’Keefe ignored the attempts of prisoners to alert him to Kwementyaye’s condition, saying that he was “distracted”, “lazy” and “tired”. He admitted to lying to ambulance officers that he had conducted regular cell-checks on Kwementyaye when he had done none. O’Keefe also lied to Sergeant Andrew Barram.
O’Keefe’s duty partner that night was Probationary Constable Janice Kershaw, who agreed with Cavanagh’s assertion that she had been “completely derelict” and “complacent” that night. She had forgotten relevant parts of her custody training and made no observations of Kwementyaye’s condition.
In the days after Kwementyaye’s body was found in the cell, his family was quick to claim foul play by the Police. On January 6 the ABC’s Michael Coggan reported these comments by Kwementyaye’s aunt Partricia Morton-Thomas:
PATRICIA MORTON-THOMAS: What the police had told us originally was that Terrance had been in lock-up and he’d fallen over and sustained an injury to his head. They went to check on him a while over and he wasn’t breathing, so they tried emergency CPR but it wasn’t successful.
MICHAEL COGGAN: Patricia Morton-Thomas says there’s confusion about what happened in the watch house, but she alleges two other young men taken into custody at the same time as Mr Briscoe have told the family they witnessed Mr Briscoe being beaten by five police officers.
PATRICIA MORTON-THOMAS: Then we went and spoke to the two young men who were locked up with him and they claimed that Terrance was beaten by five officers, four of whom were male and one female officer. That’s their version of it. So we’re still confused. There’s a lot of rumours flying around, from people saying that he had been Tasered or … it’s distressing. We just want the truth of it.
The job of finding the truth as to how and why Kwementyaye died falls to Northern Territory Coroner Greg Cavanagh. Cavanagh was ably assisted by Sydney-based barrister Peggy Dwyer, no stranger to the criminal law and coronial inquests in the NT. Cavanagh’s inquest into Kwementyaye’s death ran for nine days in mid-June.
From the first day of the inquest it was apparent that this would be a very different death in custody inquest to any held before in the NT. The court heard of the terrible circumstances of Kwementyaye’s death and viewed CCTV footage from inside the watch-house — which was later released to the media. On the first day an affidavit from a senior NT Police officer was tendered apologising to Kwementyaye’s family for not providing him the care he should have received.
Peggy Dwyer’s closing submissions to the inquest, as reported by The Australian’s Rebecca Puddy, may give some clues as to how Coroner Cavanagh might approach his report into Kwementyaye’s death and who he might look to for responsibility:
POLICE were negligent, sloppy and excessive in their use of force against Kwementyaye Briscoe on the night he died in the Alice Springs police watch-house, a court has heard. In her closing submissions, counsel assisting Coroner Peggy Dwyer described the death of the 27-year-old Anmatyerre man in January as “a shameful chapter of policing in the Northern Territory”. She said it was “painfully obvious” he was helplessly intoxicated. “(He was) manhandled in a way that was somewhat excessive. Kwementyaye’s treatment in the watch-house was shocking.” She said probationary constables and Aboriginal community police officers had been left unsupervised, breaking custody guidelines and a promise made to Coroner Greg Cavanagh after three previous deaths in custody.
Peggy Dwyer’s reference to the earlier promises made to Coroner Cavanagh by NT Police relates to a 2009 death in custody with uncanny similarities to Kwementyaye’s. These are the first lines from Coroner Cavanagh’s Findings in the Inquest into the death of Cedric Trigger in early January 2009:
Mr Cedric Trigger was arrested by Northern Territory police members some time after midnight on Friday 9 January 2009 and conveyed to the Alice Springs Watch house. Less than two hours later, he was found not breathing on the floor of a police cell within the Alice Springs watch house, and formally pronounced deceased at Alice Springs Hospital at 3:40am after all appropriate resuscitation efforts had proved unsuccessful.
These words from paragraph 19 of Cedric Trigger’s inquest report must surely ring down the years:
What I saw on the recording was the deceased falling from the tailgate of the police vehicle on to the concrete, and lying there for a few minutes seemingly making a few unsuccessful attempts to sit up. The officers were not assisting him at this time. They then dragged the deceased, face down, still handcuffed, for several metres to the holding cell. Those few minutes captured on the video demonstrated treatment of the deceased – or any person taken into the custody of the police – which was undignified and inappropriate.
As must these:
39. … the deceased should not have died face down in a police cell in circumstances where no risk assessment had been carried out to assess his health or well being, and no considered decision had been made by any officer as to whether it was appropriate for him to be brought into, or remain in, the watch house in the non responsive state he was in.
40. Approximately ten years ago I held inquests into the deaths of two men in Alice Springs watch house: Gardner (1997) and Ross (1998). It was as a result of those matters that the Alice Springs Watch house Standard Operating Procedures were amended to define and emphasise the role of the watch house keeper as quoted above. The circumstances of those deaths highlighted the onerous responsibilities of police concerning the many hundreds of people taken into “protective custody” each year. I commented then about the unexciting yet unrelenting task which falls to junior police to ‘pick up drunks’ and take them into their custody in large numbers every day and every night of the year in Alice Springs. That situation has not changed.
The “promises” that Peggy Dwyer referred to in her closing submissions came from (then) Commander Anne-Marie Murphy. Cavanagh recorded her comments:
42. … once she reviewed the details of this particular matter, she immediately realised that the role of watch house keeper was not being appropriately formalised in Alice Springs. She has implemented changes to ensure that on each shift there is now a designated watch house keeper. With regard to the specifics of this case, Commander Murphy said that it was a ‘rare occurrence’ that a person needs to be dragged into a cell and that if a person is in such a state, he should be taken to hospital. Further, she confirmed that the period of time the deceased was in the holding cell without a risk assessment was too long. The absence of a watch house keeper contributed to this occurring in the way that I have already discussed.
43. There was evidence of some inconsistencies between the Custody Manual and the Alice Springs Watch house Standard Operating Procedures, as well as a lack of clarity in the latter document which has not been updated for some time. I am pleased to hear that it is intended that the Standard Operating Procedures will be amended into a clear and concise document which simply forms a short supplement to the Custody Manual, emphasising matters which are of particular relevance to the Alice Springs watch house, rather than a lengthy restatement of principles and policy.
44. Commander Murphy said (T 202):
“Since I’ve read this file I’ve had a few conversations with some of my management team about the way the watch house has been functioning or not functioning in accordance with the custody manual, particularly in terms of the watch house keeper, and the assessment of people that come in to make sure that they really clearly understand that we do not want people at risk in the watch house unless we absolutely have to. I intend to meet with all the watch commanders in their next forthcoming meeting that they have prior to their rosters coming out, to reinforce these assessments and their responsibility in terms of the watch house. And its up to them to reinforce that with their various members on their patrols: their supervisors and their patrols which includes their watch house staff.”
45. But for Commander Murphy’s evidence, I would have made recommendations pursuant to section 26 of the Coroners Act centred around watch house procedures. However, it is not necessary to do so when I am confident that measures have already been put in place to address these matters.
Two years later Cavanagh has again been given assurances by senior NT Police officers that what has gone so very wrong in the Alice Springs watch-house will be fixed; police will get “more rigorous training”; posters on prisoner care will be displayed in the watch-house; nurses are now on duty four nights out of seven; there has been a “full review” of custody operations and procedures since Kwementyaye’s death and a “senior officer” will be stationed at the watch-house at all times.
Whether those steps will address the apparently systematic concerns idenitified by Superintendent Delcene Jones of the NT Police Governance and Accountability Unit remains to be seen. As the ABC’s Allyson Horn reported, Superintendent Jones told Cavanagh that she had:
… raised watch house staffing concerns with several senior officials but was ignored … she was distressed about the watch-house being manned by only junior, inexperienced staff and by the constant rotation of staff through the facility. Superintendent Jones told the inquiry her recommendations to change staffing conditions had been met with reactions ranging from “dumb insolence” to outright refusal.
In 1991 Commissioner Elliott Johnstone QC handed down the report of the Royal Commission into Aboriginal Deaths in Custody. Speaking hopefully about progress in relations between Aboriginal people and the Police in the Northern Territory the report noted in regard to the death in custody of a man known as Jabanardi, the report said that while his death represented:
… in a particularly dramatic way, the very great problems which can occur between Aboriginal people and police, there is evidence that much has been done since 1980 to address the apparent gulf which can separate Aboriginal people from the broader community, whereby interaction with the police gains a particular focus and is an indicator of the nature of relations between the Aboriginal and non-Aboriginal community…
I believe that there is much to be learned from the Northern Territory experience which will be helpful in other places throughout Australia.
Coroner Cavanagh is expected to hand down his findings in a few weeks.
You can watch CCTV footage from the Alice Springs watch-house in both Kwementyaye Briscoe and Cedric Trigger’s matters in this report by ABC NT’s Alice Springs-based reporter Allyson Horn.
i had intended to do the down-sizing of grafton gaol and the closure of the youth drug and alcohol court by barry o'farrell.but that must wait for another time as i wish to present this prior to any decision by coroner cavanagh.
fkj
ray jackson
president
indigenous social justice association
isja01@internode.on.net
(m) 0450 651 063
(p) 02 9318 0947
address 1303/200 pitt street waterloo 2017
www.isja.org.au
we live and work on the stolen lands of the gadigal people.
sovereignty treaty social justice
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