Coroner finds bias present & police referred to DPP

11 Apr 2020

Coroner English rightly opined that the train conductor’s removal of Aunty Tanya Day was “influenced by unconscious bias.” The conductor’s “regard for Ms Day as “unruly” was informed by a bias against her Aboriginality.”

Tany Day 's Family walk down the street performing traditional smoking and walking

I would like to acknowledge the family of Aunty Tanya Day who have staunchly advocated on her behalf and endured the trauma of her inquest. Despite their own trauma, they amplified Aunty Tanya Day’s experience by seeking the release of the CCTV footage in a powerful message of solidarity to the broader First Nations community that they are seeking to protect us all by pushing hard for justice.

Aunty Tanya Day was napping on a V-Line train, 17 days later – she died. Her death was the subject of a coronial inquest into the conduct of the VLine train conductor and Victoria Police.

As Aunty Tanya Day’s family sat in the courtroom hearing evidence throughout their inquest, they have to endure the evidence given by members of V-Line, the Vic Police and Ambulance services. The evidence painted a picture of a woman, intoxicated, treated with contempt instead of care. She was locked up, without being communicated as to why where she was not cared for or supervised adequately and suffered fatal injuries from a fall. Despite the benefit of hindsight, the Vic Police evidence was that there was not inappropriate action on their part and empathy truly lacking by Officer Fitzgibbon who stated during evidence that, ‘Drunks don’t usually get blankets and mattresses, intoxicated people. We treated her with as much dignity and respect as we could.

After six months of deliberations, Victorian Coroner Caitlin English had to deliver her findings via livestream due to COVID-19. Coroner English has recommended that the Victoria Police officers involved in the monitoring of Tanya Day following her detainment be investigated by the Director of Public Prosecutions to determine whether criminal negligence was involved.

She confirmed that her role was not to find culpability but rather examine the facts causative. She said, “I have considered the preventability of Ms Day’s death in accordance with the whole of the circumstances of the 5th of December 2017.” She highlighted that the questions she concerned with was not ‘what’ happened, but ‘why’ they happened as the facts of the cause of death and medical evidence was not in question – it was corroborative.

Importantly, she said that the inclusion of the question pertaining to systemic racism in the inquest went to not only the law against public drunkenness but “the impact of unconscious bias on all of the decisions made with regard to Ms Day on 5 December 2017.”

Although the inquest questioning yielded denials of the persons involved holding racist views, Coroner English noted in her oral findings that this was unsurprising.

Coroner English discussed the decisions of Mr Irvine – the train conductor – in particular as his evidence was that it was common for passengers to sleep on the VLine train. He also conceded that in all previous occasions where he removed passengers from trains, they had been “abusive, aggressive or annoying.” He further conceded that Aunty Tanya Day was not “unruly” and she was the first sleeping passenger he had sought to remove.

Mr Irvine gave evidence that he did “not have a preference either way” to Aunty Tanya Day being removed from the train but Coroner English rejected this evidence. Further, Coroner English noted that in evidence, Mr Irvine stated that he “could not recall if he noticed Ms Day was Indigenous when her first saw her” as the contemporaneous evidence was that he described her as such to police.

At no point did Mr Irvine consider calling for medical assistance or an ambulance, his decision was to call the police and this was not only outside of the usual protocol but additionally – outside of his prior experience having come across at least 3 sleeping passengers a week and Ms Day being the only one that he called the police on to be removed.

Coroner English rightly opined that the train conductor’s removal of Aunty Tanya Day was “influenced by unconscious bias.” The conductor’s “regard for Ms Day as “unruly” was informed by a bias against her Aboriginality.”

In examining the conduct of the police there was differential treatment of Aunty Tanya Day to a non-Indigenous woman on the same evening who was transported home and not issued an infringement. It was also found that the police did not attempt to contact the Aboriginal Liaison Officer and “there was minimal compliance with medical checklist.”

Coroner English also requested that both Victoria Police and VLine engage the Victorian Equal Opportunity and Human Rights Commission to conduct a review of their training materials provided to employees with the human rights set out in the Charter of Human Rights and Responsibilities Act 2006.

She also recommended that the Department of Justice and Community Safety review the current volunteer model of the Aboriginal Community Justice Panel for its effectiveness in providing protection to Aboriginal people in custody.

This is a landmark determination made possible by the staunch advocacy of Aunty Tanya Day’s family. The trauma of the inquest and all of the subsequent press was endured in order to not only get justice for their beloved Mum – but also Aboriginal people more broadly. So to the family, friends and advocates of Aunty Tanya Day – thank you! Thank you for your courage and resolve to see this through.

It is clear that the evidence – particularly that of Mr Irvine – gave her significant cause to question whether there was a presence of ‘unconscious bias’ and the subsequent actions of the police gave rise to a need for a criminal investigation but as Aboriginal people it is difficult to have such concepts deliberated on by those who are part of the structural paradigm built on racism.

Notwithstanding the outcome, it is important that we unpack the language used during the findings of Coroner English.

Our experience tells us that the actions on the date from the conductor to the police officers were not ‘coincidental’ and although not every decision was found to be formed pursuant to an ‘unconscious bias’ – there were compelling findings that speak to the nature of injustice predicated on racism in this country and the devastating death of Aunty Tanya Day exemplified it.

I will not criticise Coroner English – her findings were sound and well supported by evidence heard throughout the inquest. Although there are small points that I differed with her on in the assessment of the evidence, my opinion is largely informed by my Indigeneity – whereas her assessment is informed by her absence of same. Regardless of anyone’s impartiality or objectivity – we apply the lends of our experience and perspective when making an assessment. Rightly or wrongly, this is the human condition and it is part of the reason why self-awareness is so essential for those within our justice system that seek to be part of ensuring just outcomes. Just outcomes do not come from people who are in denial of their own prejudices or those who lack the self-awareness to realise they possess them.

I will also not criticise her use of language as she is not well placed to make assessments of the individuals involved in the inquest and whether they hold racist views – she confined her findings to whether decisions were informed of bias and found that a number of them were and that was open to her on the evidence.

However, I will say that as a non-Indigenous woman – the Coroner cannot draw upon experiential assessments of intent. We – as Aboriginal people – know that prejudicial thinking is very rarely ‘unconscious.’ Even in circumstances where there is this so called ‘unconscious bias’ – it speaks to how powerfully entrenched these racist ideologies are that they are not even perceptible to those who perpetuate them. Racism built our institutions and the powerful within them use it to maintain the infrastructure – it is our job to pull this apart, brick by brick.

While we wait for the actions of the DPP in whether they will investigate in accordance with Coroner English’s recommendation – we can take comfort in the fact that bias was identified, unconscious or not and this decision is another brick removed from the founding infrastructure of this country that continues to hold delusions of justice and fair go. This decision was an essential one for our continued fight against systemic racism.

We must support the family of Aunty Tanya Day to continue this fight and pursue not only the investigation into the individuals, but the institutions that continue to perpetuate the racist decision making that puts black lives at risk. We must do this so that all lives that are saved through change in the future – are saved in her name.

We won’t know them, but she will.

In her name.

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