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Two victims, no justice

Ms Dhu, Lynette Daley and the alarming rates of violence against indigenous women

Lynette Daley

Lynette Daley. Photo courtesy of Four Corners

July 2016Medium length read
 

Two Aboriginal women speak to us from their graves. One died from horrific injuries in a police cell in Western Australia, and the other bled out on a beach in New South Wales after an alleged violent sexual assault. Their lives were cut short by violence compounded by what seems to be a contempt for Aboriginal women that can pass for normal and acceptable across all classes and cultures in Australia.

There has been no justice for either woman, no prosecutions, just a cold silence from the authorities. Only their families, a few journalists and a very small number of people holding vigils have brought these matters to our attention. These deaths are the tip of the iceberg. Many more Aboriginal women have died from assaults and criminal misconduct, and they have passed without any public attention or anything like justice.


Julieka Dhu, a Yamatji woman, was 22 years old when she died in Port Hedland, Western Australia, in 2014. She had been arrested for unpaid fines on 2 August, then detained for three days at the South Hedland Police Station, under a controversial policy of paying off fines through jail time. She owed $3622.

During those three days, she cried in agony for hours and vomited as pneumonia and septicaemia resulting from untreated broken ribs took her life.

The police took her to the Hedland Health Campus three times while she was in custody. She was twice discharged back into police custody without treatment, and clearly without any competent diagnosis. Medical personnel stated that she had “behavioural issues”.

She continued to complain that she was unwell – in CCTV footage from her third day in custody, she appeared barely conscious – prompting police to take her back to the Hedland Health Campus a third time. Shortly after her arrival, she went into cardiac arrest and died.

Her death and its circumstances were ignored by authorities. In October 2014, Dhu’s grandmother Carol Roe, working with the Deaths in Custody Watch Committee, issued a public appeal for an independent investigation to be held, for a series of reforms (such as stopping imprisonment for the non-payment of fines and infringement) to be implemented, and for demonstrations to be held.

A coronial inquest commenced in Perth on 23 November 2015. At the hearings it soon became clear that a police officer had dropped Dhu during the custody period, that her head had struck the floor, and that police had failed to tell an internal investigation that one of them had verbally abused Dhu and called her a “f***ing junkie”. Paige Taylor reported in the Australian:

The court watched more than 20 minutes of footage of Miss Dhu crying in pain at the lockup on the night she was arrested for unpaid fines in South Hedland, the iron ore town 1700km from Perth. She moaned and whimpered “help me” and “it hurts”. Some in the packed public gallery yesterday began to cry. Guards handed out tissues. Miss Dhu’s father Robert left the room. Her mother Della Roe and her grandmother Carol Roe, the formidable matriarch driving reforms of the state’s justice system, stayed.

During her opening address, Ilona O’Brien, counsel assisting the coroner, recorded some of what occurred on Dhu’s third day in custody:

In the morning on 4 August 2014 the Lockup Keeper, Constable Matier, commenced duty at 07:00am and spoke to Ms Dhu who was still complaining of pain. A short time later he received a call from Ms Dhu on the intercom telling him that she could not feel her legs and she requested to go to hospital. Constable Matier recalls that he asked Ms Dhu “do you want to go to hospital this will be the third time?” and at that point Sergeant Bond, who was present at the office, said that Ms Dhu was fit to be held in custody.

From 9:03am the CCTV footage from within the cell shows Ms Dhu apparently vomiting or retching into a plastic cup a number of times.

At 11.40 am Sergeant Rick Bond carried out a physical cell check, and Dhu claimed that her hands were going blue. Sergeant Bond examined Dhu’s hands but reported that he could not see any discolouration. CCTV footage shows that soon afterwards Dhu fell backwards and hit the back of her head, twice, no longer strong enough to sit upright.

O’Brien continued:

At 12:06pm Senior Constable Burgess attended the cell with Senior Aboriginal Police Liaison Officer Sophie Edwards. Ms Dhu was moving her arms and head but she told them that she was in pain, couldn’t move her legs and that her mouth was numb …

At 12:11pm Senior Constable Burgess entered Ms Dhu’s cell and picked up a magazine from the floor at the same time as helping Ms Dhu to sit up by pulling Ms Dhu up by one arm. Senior Constable Burgess appears to have tripped and Ms Dhu fell backwards and she hit the back of her head on the concrete floor.

At 12:14pm Sergeant Bond made the decision to take Ms Dhu to the Hedland Health Campus but felt that the transfer was not urgent … CCTV footage shows that at 12:33pm Senior Constable Burgess and Constable Matier entered Ms Dhu’s cell and they handcuffed Ms Dhu. Ms Dhu told them that she could not walk, and there being no wheelchair or stretcher available, Constable Matier took hold of Ms Dhu under the arms, dragged her to the cell door and then with the assistance of Senior Constable Burgess picking up Ms Dhu’s legs, they carried her to the back of a police van.

At the Hedland Health Campus, Senior Constable Shelley Burgess obtained a wheelchair, later recalling that Dhu immediately went limp, slumped into the chair, and her head and eyes rolled back.

According to O’Brien:

The Emergency Department notes record that Ms Dhu arrived at 12:45pm and a history of not being able to feel her legs and a numb mouth was recorded. The Triage Nurse Caroline Jones approached Ms Dhu, and noting the seriousness of the situation, told police officers to take Ms Dhu straight through to the triage office. Nurse Jones recalled that the police officers reported to her that Ms Dhu “was faking it”. However on assessing Ms Dhu, Nurse Jones realised that Ms Dhu was in cardiopulmonary arrest and wheeled her into the resuscitation room where cardio-pulmonary resuscitation was commenced immediately and efforts continued for 53 minutes. Tragically, Ms Dhu could not be revived and died at 1:39pm.

The police and the health campus staff have denied that they were in any way racist. That they seem oblivious to their responsibilities of duty of care to Dhu, and performed their duties with general contempt and incompetence, as revealed in the evidence to the inquest, says otherwise.


Early this year, investigative reporter Caro Meldrum-Hanna of the ABC’s Four Corners program brought to my attention the decision of the Office of the Director of Public Prosecutions (ODPP) in NSW not to prosecute two men, Adrian Attwater and Paul Maris, in relation to the death of a 33-year-old mother of seven at Ten Mile Beach, north of Iluka, on 27 January 2011.

After a thorough investigation, police had charged Attwater with manslaughter and Maris with manslaughter accessory after the fact. Yet neither man has ever been prosecuted, because for five years the DPP has refused to bring the matter to court. Only in the past couple of months has Lloyd Babb, the DPP, appointed a reviewer to the case – in the face of public outrage, following the screening of the Four Corners investigation in early May.

According to the inquest findings of the State Coroner’s Court issued on 27 November 2014, Lynette Daley (referred to as “Norma”) suffered an extraordinarily brutal death. Magistrate Michael Barnes, State Coroner, summarised some of the evidence in this way:

She was naked and heavily intoxicated. She had lost a dangerous amount of blood from traumatic injuries to her vagina. The two men with her burnt a blood soaked mattress and some of her clothing before seeking help from fishermen further down the beach.

Subsequently, one of those men who admitted to engaging in what he claimed was consensual sexual activity that caused the bleeding was charged with Norma’s manslaughter. The other who had burned the bedding and clothing was charged with being an accessory after the fact.

The DPP withdrew the charges before they reached a committal hearing.

The forensic pathologist who conducted the autopsy had concluded that “the injuries were more severe than those which occur in even precipitous childbirth”. He listed “blunt force genital tract trauma” as the primary cause of death.

“There can be no doubt the injury which led to Norma’s death was inflicted by Mr Attwater,” stated the coroner in his report.

Attwater and Maris attempted to cover up their heinous acts by burning items that were covered in Norma’s blood. They both gave untruthful accounts of events because they feared their actions and inaction would reflect badly on them.

Faced with the truly horrifying facts of this case, any reasonable person would find it impossible to apprehend a logical reason why the DPP should choose not to prosecute Attwater and Maris.

In his report, the coroner praised the police for their diligent work, and again recommended the case to the DPP for prosecution:

If a coroner forms the opinion that the evidence given at an inquest is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence which raises the issue of whether that person caused the death … [then] the coroner is required to forward to the DPP the depositions of the inquest, a written statement that specifies the name of the person and the particulars of the indictable offence concerned.

I have reached such conclusions in relation to the death of Norma. Accordingly I shall make a referral to the DPP as described above.

Legal experts who read this report believe there were solid grounds to proceed to prosecution of these men in relation to the death of Lynette Daley.

“I can’t understand [why this didn’t occur],” Associate Professor Thalia Anthony, a law lecturer and expert in criminal law at the University of Technology Sydney, told the ABC.

“I’ve read the findings of the coroner, the forensic reports, the autopsies, and they all seem to lead to the conclusion that there’s overwhelming evidence for a prosecution of manslaughter.”

NSW police have prepared yet another detailed dossier in an attempt to have the ODPP reverse its decision not to prosecute.

It is indeed difficult to understand why the ODPP has not charged these two men. The victim was vulnerable because of her state of intoxication, and the evidence on this is very clear. But she was also vulnerable for a number of other reasons, not least the fact that she was Aboriginal. These issues should be reasons for prosecuting, not refusing to prosecute.

The failure to prosecute indicates a tolerance for violence against women, and a disregard for the lives of Aboriginal women. (“If it would’ve been two Aboriginal boys had done that to a white girl,” observed Daley’s traumatised stepfather, “I reckon they’d be still in jail.”)

The ODPP acts on behalf of the community. Community attitudes to violence against women have changed rapidly in recent years, as demonstrated in the appointment of Rosie Batty as Australian of the Year in 2015 and in the success of campaigns protesting violence against women such as White Ribbon, Our Watch and No More. Perhaps ODPP staff are not aware of this.

As an Aboriginal woman with longstanding concern over the rates of violence against indigenous women, I fear the message that this case sends: that there may be no repercussions for assaulting us. Some will think it is “open season”.

If the law cannot be applied equally, it is our reasonable conclusion that the legal system is racist.


The Dhu case caused outrage among activists, not just because of the details of her agonising death in Port Hedland but also because of the reason for her arrest. The Change the Record campaign and the Deaths in Custody Watch Committee have rightly pointed to the injustice of this policy and its contribution to the extraordinarily high indigenous incarceration rates in prisons and detention centres in Australia.

The Law Council of Australia and Amnesty International, among others, have become involved in Change the Record, which is organised by the National Justice Coalition and is reaching out to governments and the public. This is laudable, especially as the incarceration rates continue to grow. The Australian Bureau of Statistics reported in 2012 that Aboriginal and Torres Strait Islander adults were imprisoned at a rate 15 times higher than that of non-indigenous adults. The Law Council notes that indigenous Australians make up about 2.5% of Australia’s population yet account for 26% of the nation’s jail population. The Law Council also cites the Australian Institute of Criminology’s finding that the proportion of indigenous prisoners has almost doubled over the 20 years since the Royal Commission into Aboriginal Deaths in Custody.

According to the Law Council, “Significant contributing factors to the high rates of Indigenous imprisonment are the state and territory government bail and sentencing policies, which include mandatory sentencing, and provide few alternatives to remanding individuals in custody and imprisoning individuals for non-serious offending.”

However, this campaign tends to miss one crucial point. The belief that most indigenous people are in jail because they have been unfairly targeted by police and arrested for relatively minor “social nuisance” offences is not borne out by the facts. The majority of Aboriginal and Torres Strait Islander prisoners are in jail because they have been convicted of acts “intended to cause injury”. Most of the convictions are for assault and sexual assault, and for each indigenous prisoner there are, on average, two indigenous victims. Most victims are indigenous women.

In both the Dhu and Daley cases, the deceased women were victims – probably over a long period of time – of violence. Dhu’s broken ribs were the result of an assault prior to her arrest, and Daley had been the victim of many assaults by partners prior to her death.

Aboriginal and Torres Strait Islander women are victimised at alarmingly high rates compared with the wider community.

Between 2012 and 2013, indigenous women were hospitalised for non-fatal family violence assault at 34.2 times the rate of non-indigenous women. Between 2008 and 2012, in New South Wales, Queensland, Western Australia, South Australia and the Northern Territory, the death rate from homicide for indigenous people was seven to eight times higher than for non-indigenous people.

There is substantial evidence to date showing that Aboriginal women also suffer from levels of sexual violence many times higher than in the wider population.

Tackling violence, this critical problem that affects the families and communities of the prisoners in so many ways, is very complex. First, the laws and policies vary greatly from jurisdiction to jurisdiction. Second, the programs that are working well to reduce incarceration rates go relatively unnoticed as well-meaning people get caught up in the broader campaign against indigenous incarceration, and criticise all governments equally and sometimes incorrectly.

Courts have a statutory responsibility to balance many factors, and these must include the safety of complainants and communities. Those deciding bail applications must consider the rights of these complainants and communities, for example, when weighing up the right of the violent offender to be at liberty.

If we consider the rates of incarceration and the Daley and Dhu cases, the question as to whether the Australian justice system is racist must be answered in the affirmative. When we try to unravel the complexities, the picture is not so clear.

While a range of factors including family violence, communication barriers, remoteness and economic disadvantage influence community safety outcomes, there are four significant drivers of crime within indigenous communities: drug and alcohol abuse, poor parenting, poor school retention and performance, and unemployment.

With little or no education, and often harmful socialisation in dysfunctional family settings, many indigenous people lack the basic skills required to participate in the workforce and further their education. Their high levels of involvement in the criminal justice system can be attributed to these background factors. If they are in the justice system, they have typically followed a pathway of leaving school, not gaining proper employment, misusing alcohol, illicit drugs or other volatile substances, and engaging in anti-social and destructive behaviour. (Indigenous juveniles are 31 times more likely to be in detention than non-indigenous juveniles.) Violence against women is a part of this pattern. The challenge is to ensure that these patterns of failure are discouraged: by implementing a range of programs, and by changing social norms and creating new role models.

We can see elements of this kind of social dysfunction in the cases of Dhu and Daley, in their own lives or the lives of those who assaulted them.

What is clear, despite these complexities, is that the South Hedland police and the staff at the health campus tolerated contemptuous treatment of an Aboriginal person. Their practices and the poor performance of their staff can be seen as nothing more than a casual, normative racism that left Dhu for dead.

What is also clear is that the ODPP in NSW will forever be seen as racist over its refusal for years to prosecute the two men implicated in the death of Daley.

Some of the campaigners against the high rates of indigenous incarceration rates use the word “genocide”. The question that most Australians will not ask, however, is this: is our legal system tolerating and even encouraging the femicide of indigenous women? I think it is.


 

After this article went to press, NSW police charged a 42-year-old man with manslaughter and aggravated sexual assault and a 46-year-old man with accessory after the fact to manslaughter and aggravated sexual assault. The men are due to appear in Grafton Local Court on 2 August.

About the author Marcia Langton

Marcia Langton is a descendant of the Yiman people. She holds the Foundation Chair in Australian Indigenous Studies at the University of Melbourne.

 
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