December 2019 – January 2020

Essays

Chloe Hooper

Remember her name

Family members of Tanya Day at a smoking ceremony in Melbourne prior to the coronial inquest, August 26, 2019. © David Crosling / AAP Images

Were systemic racism and unconscious bias among police officers behind the death in custody of Tanya Day?

Does the latest witness feel the sense of collective déjà vu? We’re back in this room, and despite its refurbishment – the prominent Aboriginal and Torres Strait Islander flags, the carpet in homage to a dot painting – Superintendent Sussan Thomas, a fit woman with silver epaulettes on her shoulders, is striding to the witness table and pledging on a Bible to tell the truth about another death in custody. But then the usual picture shifts: is this a glitch or a note of hope? The police officer acknowledges the traditional owners of the land upon which this inquest is taking place. She pays her respects to present and future elders, many of whom are seated in the crowded gallery, uniformly wearing black T-shirts emblazoned with the message:

REMEMBER HER NAME

TANYA LOUISE DAY

Just under the judicial bench, inside the Coroners Court of Victoria, is a shrine. Bouquets of native flowers, clapsticks, a possum pelt and a coolamon filled with Murray River earth surround a photograph of a smiling, brown-skinned woman.

“I would also like to extend my acknowledgement and respect to all of the family members of Tanya Day,” Thomas says, glancing at three siblings who are seated in the front row, “and any person that has been affected by the tragic death of Tanya Day.”

Thomas works at Victoria Police’s Priority Communities Division, where she is responsible for the Aboriginal portfolio. In fact, she tells the court, she’s only just returned from a cultural awareness camp at Barmah National Park, the river red gum floodplain forest on the Murray River’s edge, where Tanya Day’s Yorta Yorta ancestors lived for millennia. Here, a local elder talked to the police officer and her team about a term already much used at this inquest: “unconscious bias”.

Peter Morrissey SC is the Day family’s barrister, and he approaches the witness with some scepticism: “What do you understand is the meaning of unconscious bias?”

“Well…” Thomas, her dark hair pulled into a tight ponytail, starts slowly. “My understanding is that we all have, um, from our experiences and from our cultural upbringings… opinions or views, unconscious to ourselves, not at the forefront of our minds, and it can impact on the way we think.”

In a landmark ruling, Coroner Caitlin English has agreed to consider whether systemic racism, and therefore “opinions or views, unconscious”, were a contributing factor in Day’s death.

On December 5, 2017, Tanya Day, 55, boarded a Bendigo to Melbourne train. She was drunk and, as an Aboriginal woman, 10 times more likely to be arrested by Victoria Police for public drunkenness than a white woman. Half an hour later, as if in fulfilment of the statistic, four police officers were waiting for her on the Castlemaine platform. They took her from the train, put her in a divvy van and then a cell, where, barely monitored with a blood alcohol level of about 0.313, she fell, sustaining head injuries that killed her after 17 days in hospital.

The Day family’s lawyers have a way of describing the relationship between the statistic and the act: when we zoom out, the data shows a massively disproportionate arrest rate that can only be explained by racial profiling, but when we zoom in on any individual case the bias seems to disappear. Every officer who interacted with Tanya Day claimed to have behaved just as they would have with a white prisoner. They also declared they’d do nothing differently if they had their time over.

On behalf of Day’s children, since November 2018, first Victorian Aboriginal Legal Services then Human Rights Law Centre lawyers have been asking Victoria Police to provide to the court a senior officer with responsibility for training and custody management. It is now Friday, October 11, 2019, the inquest’s last day. Forty-eight hours earlier, Superintendent Thomas was directed by her superiors to give evidence. She is the highest-ranking officer to come to court, but Morrissey tells the coroner he believes she’s “a decoy”, presented by Victoria Police precisely because she “is not able to be cross-examined” about the policy issues raised by Day’s death.

Thomas remains composed in the face of this slight. But she also repeatedly acknowledges that she is not what she calls “a subject matter expert”. She’s come hoping to speak about “all the good work that is occurring across Victoria Police”. An Indigenous cultural awareness package is in the midst of being finalised for police, although admittedly this training won’t be mandatory. Thomas also oversees the publication of some Aboriginal fact sheets that are available to any police officer who seeks them on the police intranet.

“Are you aware, then, whether there were any fact sheets on conscious or implicit bias at the time of Tanya Day’s death?” Morrissey asks.

“No, I’m not aware,” Thomas says.

“Have there been any fact sheets published since her death?”

“To my knowledge, no.”

No one in the court appears surprised.

The last fortnight has provided much material for a fact sheet on everyday whiteness.

There was the zealous train conductor who, seeing the sleeping woman’s feet in the aisle, woke her and asked her to produce a ticket. When Day, sounding confused, could not find the ticket she’d bought, he instructed the train driver to call the police and request they pick up an “unruly” Aboriginal. (Giving evidence, this conductor, perhaps tellingly, now denied even noticing Day was Indigenous. A white colleague happened to be on the same carriage that morning and she hadn’t noticed Day causing any problem. Asked what he would have done, had this woman been drunk, the conductor said he’d have called the police on her too.)

There was the police officer who noticed the looks of “disgust” on other passengers’ faces as he removed Day, he assumed “because of the behaviour on the train”. Before being locked in the divvy van, Day merely said, “This again.” The officer sought to assure her that “it wasn’t like that”, a racist arrest. But later that evening, when the officer found a “heavily intoxicated” white woman on the street, he did not arrest or place her in a cell, but gave her a lift to an address of her choosing.

At the police station in Castlemaine, north-west of Melbourne, there was the constable who claimed Day was treated “just like any other drunk”. The Day family lawyers argue that “if you associate ‘Aboriginal’ with ‘drunk’ you are more likely to stereotype symptoms needing medical attention, misidentifying, for example, the developing signs of a right-side hemiparesis as mere inebriation. The cell footage shows us Day suffered five significant falls that the officers failed to notice, and although policy stipulates alcohol-affected prisoners must be roused and physically checked every half-hour, after the fall that likely caused Day’s brain haemorrhage she was left alone for two and a half hours. The Castlemaine police, it turned out, were having their Christmas party, and the station was understaffed. When the constable did check on Day, and found her face was bruised, an ambulance was called. Ambulance officers were told she’d “had a knock on the noggin”.


This morning, before Superintendent Thomas’s appearance, Victoria Police has finally provided the court with some training materials relating to cultural bias.

Morrissey reads out the details of a lesson headed “Bias in Action”, involving a video clip showing three young people stealing a bike. “One’s a white male, one’s a black male and the last is a white female,” the barrister explains, “and it show[s] that when the black man stole the bike, people swarmed around and called the police … No one did so for the white man, and when it came to the white female, people helped her. Do you see that?”

Thomas puts on a pair of glasses. She does see that.

Morrissey finds another document used to teach Victoria Police recruits in 2017, titled “How Can You Change Your Bias?”

“To recognise the impacts of your bias on your judgement and decision making,” he quotes, “you need to develop more control over your conscious thinking. Bias is natural and cannot be eliminated. Suppression doesn’t work. If your goal is to make more robust evidence-based judgements your focus should be to strengthen your conscious thinking and gain greater awareness and control.”

Morrissey asks for confirmation that “in the year leading up to the death of Tanya Day in police custody, Victoria Police was well aware of, and was endeavouring to teach its members, strategies to deal with unconscious bias”.

“Yes, I would say that’s fair,” says Thomas.

“You are not going to sit there and say that unconscious bias was not a problem in 2017 in Victoria Police, are you?”

“I’m not in a position to say whether it was a problem or it wasn’t a problem,” says the officer. “I can only say that there’s education material on it … I can’t talk about whether they’re dealing with anything.”

The sparring goes on through the afternoon.

It’s Friday and the room’s majority are starting to flag. Opposite the barrister and police officer is a large picture window. The view reinforces the sense of the court’s quaintness: there’s a wall of high-rises and if you concentrate, over the insect-like din of two dozen lawyers at their laptops, there are jackhammers and cranes, the sounds of vertical colonisation.

“Perhaps I should take a step back,” Morrissey says finally, trying to salvage some form of win. “You don’t dispute that adult humans are affected by unconscious bias, do you?”

“No, I don’t,” acknowledges Thomas.

“Do you accept that systemic racism does persist in the justice system?”

“No.” She’s quietly spoken now, dry-throated. “I’m not in a position to answer that question.”

“Why is that?”

“Because in my 30 years policing, I haven’t had that experience.”

The audience gasps. As public theatre, the less woke the witness’s answers the better.

“Do you accept that systemic racism and discrimination persists within Victoria Police?”

Thomas is flushed, but utterly still. “No. No, I don’t.”

The laughter from the Indigenous people present is bitter: what exactly did she learn on cultural awareness camp?

When Tanya Day was born in 1962, Yorta Yorta women had to wait on the lawn outside the hospital until they were ready to give birth. Their babies were placed away from the white newborns on the hospital verandah. After all, they were not citizens of the Commonwealth.

Segregation is so recent, it’s not surprising that when the Day family lawyers have talked bluntly of lingering racist attitudes, including the possibility that many Australians unthinkingly harbour negative stereotypes about Aboriginal people, the discomfort in the courtroom has been palpable.

“Did you ever hear when you were growing up, Aboriginal people referred to as ‘Abos’ or ‘boongs’ or ‘coons’?” Morrissey asked a number of the police officers.

Everyone answered yes, and yet there was a sense, even from the lawyers, the vast majority of whom were also white and had presumably heard these terms, that this line of questioning was bad form. (Here we are in this progressive courtroom with a possum-skin quilt and a eucalypt-coloured feature wall – why ask these retro questions? We’ve moved on, haven’t you noticed?)

“You’re aware that the Royal Commission into Aboriginal Deaths in Custody released its findings 30 years ago?” Morrissey asks Thomas.

“Yes.” She graduated from the Victoria Police Academy in 1989.

“You accept that Aboriginal people continue to have disproportionate contact with the justice system?”

“Yes.”

“You accept that Aboriginal women are 24 times more likely to be imprisoned than non-Aboriginal women?”

“I do know there’s an over-representation.”

“Do you accept that Aboriginal people continue to disproportionately die in custody?”

“Yes, I’m familiar with statistics that suggest that.”

The superintendent, her collar buttoned to the top, is holding herself erect, but her face is red with tension. One imagines her frustration at being served up as the inquest’s sacrificial offering co-mingling with the defensiveness police feel about being called in to justify themselves to lawyers who don’t work on the ugly frontline, and whose own motives and biases are never questioned. Perhaps she can reasonably feel aggrieved that, as an agent of change and good deeds, she’s being treated suddenly as an ignoramus and a bigot.

Yet in Barmah National Park someone should have told Sussan Thomas the story of Harrison Day.

One version of Harrison’s life and death is recorded in royal commissioner Hal Wootten QC’s searing Aboriginal deaths in custody report, which also unwittingly describes the atmosphere in which Tanya, Harrison’s niece, was raised.

Harrison, writes Wootten, had “worked hard from the age of 13 in bush work of various kinds. In his late twenties he developed epilepsy, probably as a result of injury, and it became sufficiently serious for him to be denied a driving licence and given an invalid pension.” Unemployed, he spent his days in the northern Victorian town of Echuca, in Yorta Yorta country, “drinking in the town’s parks and river bank reserves”, and thus attracting constant police attention. Harrison was considered, in the words of one corrections officer, “very cooperative and well-mannered for an Abo”.

“Of course, not all drunken persons were locked up; the police cells could not have held them all,” Wootten’s report continued. “So the police often ignored drunks, or even drove them home. But no officer could recall doing this for Harrison Day, pleasant and cooperative though he was. They denied this was because he was Aboriginal, but could offer no other reason.”

In the seven months before he died, Day was arrested 11 times for being drunk and disorderly, the disorder being no more harmful than, “having his shirt hanging out, walking unsteadily along the main street, or sleeping in the park”.

Tanya Day grew up in Echuca watching her uncle passing in and out of custody, seeing the futility of a system that, as Wootten noted, “did nothing to protect or rehabilitate or even deter” her uncle and his friends. She’d have witnessed the humiliation of a man considered within his community “a great horseman and a drover”, reduced by ill health, addiction and poverty to routinely being shunted off the street.

In 1982, when Tanya Day was 19 and Harrison was 41 or 42, he died in an Echuca police cell. That day, he was “a sober, harmless man, who had done no injury to anyone”, serving time rather than paying off another fine for public drunkenness. Harrison was placed in the cell at 11.30am and although Wootten believed it was likely the officers on duty knew he was epileptic, he “was probably not fed, visited or checked” until the watch-house keeper heard “gurgling sounds” at 5.15pm. It is possible Harrison had been fitting for hours when he arrived at hospital, unconscious and “in the throes of a grand mal fit [with] his colour … very, very blue”. The Valium administered to finally stop his seizures also stopped his heart.

Thirty-seven years later, is it possible that perpetuating bias is invisible to those in the justice system – those to whom it’s not directed – because it is so pervasive? Like her uncle, Tanya Day was locked up because the spectacle of a drunk black person offended white Australian eyes. Who can say if the sight did not also agitate a well of uncomfortable guilt or sadness? The cells that wall in black Australians, wall white Australians out. Out of sight, out of mind.

In the court, Morrissey stares at the witness. “Are you in a position to make an apology [for Tanya Day’s death] on behalf of Victoria Police?”

“My response to that is that personally I’m very sorry for the family,” Thomas answers, “and I know that Victoria Police know that any death in custody is a tragedy, and we take that very seriously and we definitely are sorry for your loss, and sorry for the pain. And personally, it impacts on me, and I want you to know that.”

The peculiar gaucherie of whiteness.

There is real sorrow in this room, and there’s a confusion: the puzzlement of not getting it right even as we think, with all our cultural politesse, we’re getting it very, very right. But as the Day family will later claim in their written submissions: “to put it bluntly, Aboriginal people are not helped by hearing about the sadness of non-Aboriginal people at the effects of a system that keeps killing us”.

At the end of their evidence to the inquest, each officer was asked if he or she had received any training in the aftermath of Day’s arrest and death. None had. None of them appeared to believe they’d done anything wrong. That’s the brilliant brutality of this system: look, no hands!

Superintendent Thomas leaves the court at speed, her face a blur of emotions.

Once the overt contest is over, the mood in the room shifts.

Thirty years ago, it fell to Tanya Day’s aunt, Euphemia, to rescue her brother-in-law from being remembered by the white justice system as “just like any other drunk”. She told Commissioner Wootten: “He was very well known in Moama and Echuca, and everyone liked him … Men like Harrison were really great men. The way they’ve been coming across in the royal commission hearings is as if they are just nobodies. As if nobody wants them, that they are unloved – that’s not true. They were dignified men … He was … a gentleman.”

And now in this coroners court, the job of reclaiming Tanya Day falls to her children.

The family’s supporters pass a box of tissues around every seat in the gallery. I accept the offer as Belinda Day, Warren Stevens and Apryl Watson position themselves side by side behind the witness table. Morrissey sits with them and in fireside-chat mode leads an informal conversation about their mother.

Tanya grew up on the Moonahcullah Mission in the Riverina, then Echuca, and was around “the middle rung” of 10 children – “her father’s shadow and very much doted on”. She was “a very mischievous child” who “grew up to be a very beautiful woman and obviously attracted some attention”. “She made friends easily”, but “after starting a family, I think we took up most of her time”.

“Very community oriented”, Tanya “had a lot of respect for elders and [was] always looking out for younger people and making sure they were okay”. She was “always front and centre at rallies” and had “a long list” of Indigenous issues on which to lecture her children. She was also a woman with a “passion for cooking [and] loved a Sunday roast with all the trimmings”. And she “always, always looked her best”. Even at grandkids’ “birthdays, like, in the backyard … Mum would come in, like, a glitter top and high heels”. Her Facebook posts showed what she was cooking or doing at the gym, although she had “probably about five or six Facebook accounts ’cause she always kept forgetting her password, and had to make another one”. Her youngest child, Kimberly, was about to have a baby, and Tanya planned to move closer to be of help. “Mum had all of her lay-bys with everything ready for her new house … All her towels were, like, pink and purple, which was her favourite colour.” She hoped to get a job cooking at Charcoal Lane, a social enterprise restaurant in Fitzroy.

But that future was not to be, and we’re all sitting in a well-appointed courtroom with three bereaved people who are trying to do as their mother would want: “fighting for what we believe in … and hoping that things can get better for other people”.

Chloe Hooper

Chloe Hooper is the author of The Arsonist: A Mind on Fire and The Tall Man: Death and Life on Palm Island, and the novels The Engagement and A Child’s Book of True Crime.

December 2019 – January 2020 edition cover

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