Why so many black deaths in custody and so little justice?

Between 1980 and 1989 there were 98 Aboriginal and Torres Strait Islander people who died in custody. Following growing outrage within the Aboriginal and Torres Strait Islander communities the Royal Commission into Aboriginal Deaths in Custody was established in 1987. The Commission’s final report was published in April 1991. In the 29 years since the report was published there have been 432 Aboriginal and Torres Strait Islander deaths in custody.

In 2015, I was briefed in the Palm Island class action that dealt in part with one of those deaths. The action was brought by Lex Wotton, his wife and mother along with members of the Palm Island community in what would become a landmark decision against the Queensland Police Service and the State of Queensland for racial discrimination. The Court found that the Racial Discrimination Act 1975 had been breached by police in relation to the investigation of Mulrunji Doomadgee and the response of the Queensland Police that followed a protest by Palm Islanders, after the results of Mr Doomadgee’s autopsy results were announced to the community in a town hall meeting.

Mulrunji died in police custody at about 11am on 19 November 2004. At about 10:20am a witness said she saw Mulrunji punch Senior Sergeant Hurley as he was being removed from the back of the police van. The two men then engaged in a “struggle”. A few minutes later Mulrunji was dragged limp into the watch house cell and the watch house CCTV was turned on. In the roughly 40 mins Mulrunji was lying on the cell floor he didn’t move. I know because I have watched the video. The police later said, they assumed Mulrunji was “asleep”. What seems illogical to me or in fact anyone with a level of impartiality is how Mulrunji could punch a police officer and then engage in a struggle and then momentarily fall asleep, all in the space of three or four minutes. It really does defy any logic or rational explanation.

During the minutes between exiting the police van and his limp body being left in the watch house cell, Mulrunji sustained a ruptured liver and portal vein (commonly associated with an injury that occurs in car accidents), four broken ribs and an injury above his eye. Justice Mortimer said in her judgment, “it is clear he did not enter custody less than an hour earlier with those injuries”.

Police Officers Kitching, Robinson and Webber were sent from Townsville to investigate the death. Robinson was the detective stationed on Palm Island and a known associate of Hurley. Justice Mortimer found the investigation into Mulrunji’s death was not impartial, independent or effective. Her Honour’s criticisms of the investigation “included Hurley was never treated as a suspect, the police officers discounted and ignored accounts from Aboriginal witnesses implicating Hurley and gave incorrect and stereotypical information about Mulrunji and the circumstances of his death to the coroner, while relevant information from Aboriginal witnesses was not passed on”. That “incorrect and stereotypical” information was a guise that Mulrunji had been sniffing and drinking bleach. There was even a myth that evolved that Mulrunji could have been involved in a car accident in the days prior to his death but he continued about the community without showing any sign of his injuries.

What the events surrounding Mulrunji’s death demonstrates most is that when it comes to Aboriginal and Torres Strait Islanders in custody, they are often shown a callous disregard for life and as their keepers and investigators apply an irrational form of logic used to justify their own distorted views.

It is the same callous disregard and illogical behaviour that I witnessed when I watched the police body camera footage of the 2018 death in Townsville of Aboriginal man Trevor King. Mr King died a few meters from his home following a struggle during which a police officer jumped on his back and held him on the ground. This was despite the officer being made aware that Mr King had a stent in his heart. As Mr King’s partner and children watched on, screaming for the officer to ‘get off him’, ‘his got a bad heart’, ‘he can’t breathe’, the officer failed to heed their concerns. The most striking scenes in the footage is when Mr King’s partner says that something is wrong with him, as Mr King’s eyes roll back in his head and he starts to foam at the mouth. Rather than take any action, the police and ambulance officers (who stopped after they happened to be driving past on their way to another call) respond “he’s ok, he’s just sleeping”.

In watching the videos of Mulrunji, Mr King and the footage I have seen publicly of Ms Dhu, Tanya Day and Mr Ward, the common element is the complete disregard that is shown for their life.  A sense of them being less worthy of humane treatment because they are Aboriginal, than would be applied to someone else in those circumstances. If a police officer was stumbling over continually hitting his head or told her fellow officers she was experiencing severe pain, do we really believe the other officers would sit back and not provide any assistance? But that is exactly what  has happened in these instances. There is an underlying irrationality applied to their suffering. It is the same disregard for life that the world has witnessed in the death of George Floyd, Eric Garner and other deaths at the hands of police that we have witnessed in the United States.

We simply cannot allow this behaviour to continue and expect there to be any real change in the treatment of Aboriginal and Torres Strait Islander people while in custody. Nor can Aboriginal and Torres Strait Islander families expect any sense of “justice” until we make real change. Families are continually let down by the investigation process. The ultimate prosecution of Hurley in Mulrunji’s death, relied primarily on the evidence collected during the investigation by Webber and Kitching. An investigation which lacked impartiality, independence or effectiveness. How in those circumstances could anyone expect a successful prosecution, let along getting to the truth of what occurred?

It is the same scenario that plays out in investigations into black deaths in custody across the country. On a death, Aboriginal or Torres Strait Islander families will be told by police “we are preparing a report for the coroner”. Which really means we are conducting a second rate investigation, which will then limit a coroner’s ability to make findings. This is because the coroner’s fact finding process is substantially reliant upon the set of the facts which are collected by the police in their investigation. In any event a coroner is unlikely to consider making findings until years later. Long after the critical evidence has been lost or forgotten.

And if you believe that “preparing a report for the coroner” is not a mediocre investigation ask yourself this, “Do you think if Hurley had have died in the minutes following the “struggle” with Mulrunji or the police officer who tackled Mr King had died moments later on the ground, the police present would have said “we’ll prepare a report for the coroner”. In knowing the response to that question shows the difference in treatment that black deaths in custody receive.

The only solution is for an independent investigative body, not made up of former police officers (who bring their own cultural influences) to conduct each and every investigation. The body could sit at the federal level with state based teams and be deployed immediately upon notification of a death.  At present a coroner will be notified of a death, but the investigation is conducted by police.

Investigations are the collection of facts in order to identify a conclusion. The skills required to conduct investigations are not innately held by police officers. Lawyers, scientist and other experts conduct investigations every day in their chosen fields and there is no reason why those skills and that expertise cannot be utilised in this instance. It is this type of significant change that is needed, if we are ever going to achieve any shift in the treatment of Aboriginal and Torres Strait Islanders in custody and the conduct of the investigations into their deaths.