A coroner has found an indictable offence might have been committed in connection with the death of an Aboriginal woman in custody.
Yorta Yorta woman Tanya Day, 55, died of a brain haemorrhage on December 22, 2017, 17 days after she hit her head in a fall in a Castlemaine police station cell following her arrest for public drunkenness.
On Thursday, coroner Caitlin English delivered her findings on Ms Day's death, following a two-week inquest last year.
In a statement, Tanya Day's family said it was "a historic day for Aboriginal people in this country, and a bittersweet day for our family".
The events of December 5, 2017
Ms Day was travelling from her home in Echuca to Melbourne, first by coach to Bendigo, then by train.
Shortly after leaving Bendigo, the conductor began checking tickets and came across Ms Day lying on the seat, with her feet across the aisle.
He asked for her ticket and destination, to which she gave unrelated answers, and he determined she was an "unruly" passenger under V/Line guidelines.
The conductor contacted the driver to call police, which necessitated the train making an unscheduled stop at Castlemaine.
At Castlemaine railway station, two officers boarded the train and found Ms Day asleep.
When roused, her replies did not make sense and she smelled of alcohol, so they arrested her and removed her from the train.
Read more from the inquest:
- Cops under spotlight in Tanya Day inquest
- Inconsistences not questioned in Day case
- Ambulance Victoria apologises to Day family
- Cell CCTV footage released in Day case
- Understaffing blamed at Tanya Day inquest
- Tanya Day given 'privacy' in cell, police officer says
- Woman was 'OK' before death, inquest hears
- Police checks on Tanya Day 'inadequate'
- Tanya Day taken off train 'for her safety'
- Tanya Day's children demand criminal investigation
Ms Day was taken to a cell at the police station at 3.56pm.
The sergeant on duty requested Ms Day be checked every 20 minutes, but at some point the sergeant and the watch house keeper agreed to change this to every 40 minutes, requiring a verbal response from her every second check.
At 4.49pm the watch house keeper checked on Ms Day through the window.
One minute later, she got up, stumbled and hit her forehead hard against the wall - this was not seen by police at the time, but later observed on CCTV.
She tried to sit up, but her right arm seemed unable to support her and she appeared to again hit her head.
These were among a number of falls that day.
Between then and 8.03pm, Ms Day was observed four times on the monitor and twice through the cell window - both times, the watch house keeper recorded that he had received a verbal response from her.
It was at 8.03pm that the watch house keeper and sergeant went to see Ms Day with the intention of releasing her.
They noticed a bruise on her forehead, and to some questions Ms Day only groaned.
Paramedics were called and Ms Day was taken to Bendigo Health, where it was discovered she had a bleed on the brain.
That night she was airlifted to St Vincent's Hospital and underwent surgery, but died on December 22.
Ms Day was the second person in her family to die in custody - the 1982 death of her uncle, Harrison Day, was examined in the Royal Commission into Aboriginal Deaths in Custody.
The coroner's conclusions
Ms English found the police officers in charge of custody that day, Sergeant Edwina Neale and Leading Senior Constable Danny Wolters, performed inadequate checks on Ms Day
The coroner said if physical checks had been conducted every 20 to 30 minutes in accordance with police rules, Ms Day's deteriorating condition might have been discovered earlier.
But there was a gap of 68 minutes between two physical checks at one point, she said, and an 81-minute gap between the last physical check and when police entered the cells at the end of the four hours Ms Day spent in custody.
The officers gave evidence they wanted Ms Day to "sleep it off".
Ms English found the conduct of the physical checks, which lasted seconds, were not up to standard.
The coroner said there was an opportunity lost for Ms Day's survival, but noted that even in optimal circumstances Ms Day's chances of survival following her injury would have been less than 20 per cent and she would have sustained significant impairment.
Sergeant Neale and Leading Senior Constable Wolters viewed Ms Day's behaviour in the cell as simply that of an intoxicated person, Ms English said.
She concluded this approach, consistent among police witnesses, "appears to be a systemic attitude and failure in both recognising the medical dangers of intoxication and complying with the mandatory terms of the governing policy and procedures regarding the management of person in care or custody".
Ms English also found that Ms Day, as a person deprived of her liberty who was reliant on police for her welfare, "was not treated with humanity and respect for the inherent dignity of a human person".
The coroner said there was minimal evidence that arresting officers had complied with Victoria Police's medical checklist guidelines, but they did make contact with Ms Day's family and other agencies on arrival at the police station.
Only one officer gave thought to seeking medical attention, she said, even though Ms Day's presentation on the train should have required urgent medical care.
Ms English said she was not satisfied Ms Day's Aboriginality played a role in the police decision to arrest her for public drunkenness, and determined this was instead done for her own safety and the liability of the officer.
But the coroner found unconscious racial bias played a part in the V/Line conductor's decision to call police and have the train make an unscheduled stop at Castlemaine.
Shaun Irvine told the court he made the decision to call for police intervention out of concern for Ms Day's safety, but also gave evidence he had never contacted police to remove a passenger who was asleep before.
Ms English rejected Mr Irvine's claims that he had "no preference either way" as to whether Ms Day was removed from the train, finding that when the conductor called for police, there was a strong prospect she would be taken off.
"I find the decision to define her unruly and to call for police rather than pursue other options has been influenced by her Aboriginality," Ms English said.
The coroner found Victoria Police responded quickly after Ms Day's hospitalisation for the police officers in contact with her to be interviewed, but did not review her time in custody nor draw learnings from it.
Ms English said the totality of evidence suggested an indictable offence might have been committed regarding Ms Day's death, and ordered the matter be referred to the Director of Public Prosecutions.
The coroner recommended public drunkenness be decriminalised, something the Victorian government has already committed to achieving.
Victoria and Queensland are the only states in which it remains an offence to be drunk in public.
Ms English also recommended the law be amended to allow coroners to direct the police in investigations for an inquest or probe into a death.
Ms English made a number of recommendations to Victoria Police, including the introduction of a falls risk assessment for people in custody who appear to be drug or alcohol-affected, a review of training regarding the Royal Commission into Aboriginal Deaths in Custody to ensure knowledge and compliance, and training for all custody staff on the mandatory rules for the safe management of people in custody.
She said V/Line should review its training materials regarding unconscious bias, with the input of Indigenous people.
The Aboriginal Community Justice Panel's volunteer model should also be reviewed, Ms English said, for its effectiveness in protecting Aboriginal people in custody.
Tanya Day's children respond
Ms Day's children have maintained the police officers who oversaw their mother's time in custody on December 5, 2017 were criminally negligent.
In a statement, they said the coroner's referral to the Director of Public Prosecutions was not "the end of the road, but it is the beginning of justice for our mum".
Ms Day's children said they were pleased the coroner found racial bias on the part of the V/Line conductor, but disappointed Victoria Police was not found to have been influenced by systemic racism, because they believed their mother would have been treated differently had she not been Aboriginal.
"We know that our mum died in custody because she was targeted for being an Aboriginal woman," they said.
"At the time our mum was arrested, Aboriginal women were close to 11 times more likely to be targeted by police for being drunk in public than non-Aboriginal women.
"All of us must reckon with this. At every step of the way, our mum was failed by a system that should have protected her. "
The family said there were "sparks of justice" in the coroner's determinations, but Australia still had a long way to go.
"For as long as Aboriginal people are targeted by police, are locked up and mistreated, and continue to die in police custody, the fight for true and complete justice for our people will be ongoing," they said.
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