Hollow promises: an enduring tragedy

John Pat and Kwementyaye Briscoe lived and died 2000 kilometres and three decades apart, but the two young Aboriginal men share a terrible bond: the fate of each has become a shameful landmark in the continuing chronic abuse of indigenous Australians in the nation's police cells and prisons.

John Pat and Kwementyaye Briscoe lived and died 2000 kilometres and three decades apart, but the two young Aboriginal men share a terrible bond: the fate of each has become a shameful landmark in the continuing chronic abuse of indigenous Australians in the nation's police cells and prisons.

Both Pat and Briscoe were arrested and detained for alleged offences that were unlikely to have led to a conviction, let alone a custodial sentence. Both were assaulted and suffered serious injuries during and after their arrests. Both died alone and most likely in agony in grim police cells, denied the basic medical treatment that could have saved their lives.

John Pat was just 16 when he was arrested after a brawl started by an off-duty policeman in the main street of Roebourne, in Western Australia's Pilbara region, in 1983. Witnesses later told a coroner that he had been punched to the ground by a drunken policeman before being dragged unconscious by the hair and thrown "like a dead kangaroo" into a police van.

There was further evidence that Pat was assaulted by several other police as he was roughly bundled into the cell where he died a few hours later. An autopsy found he had a fractured skull, broken ribs, a torn aorta and severe bruising across much his body.

Kwementyaye Briscoe - known before his death as Terrance - had been drinking with other Aborigines in a park in Alice Springs when he was arrested in early January last year. At the Alice Springs watchhouse, the 27-year-old Briscoe - whose autopsy would reveal a potentially lethal blood alcohol level of 0.35 - fell as he was being taken out of a holding cell. Police then dragged him to a reception area where he was left "sprawling on the floor" while other detainees were processed.

The only response to his obvious injuries, including a gash above his eye, was when watchhouse commander Sergeant William McDonell - who, the Coroner would observe, "appeared untroubled by Kwementyaye's state" - mopped a smear of his blood from the floor.

After being forced to his feet, Briscoe was shoved roughly against a wall and slung forward, hitting his arm and head on the reception counter. He was then carried, trailing more blood, to a cell where he was dumped face down on a mattress on the floor.

The Coroner's report describes the next "harrowing" scene captured on CCTV: "Seconds after being placed on the mattress, he rolled onto his back and hit his head on the concrete bench. A minute later he attempted to stand up but fell hard into the bench, hitting his head again. At 10.14pm, he attempted to sit up but fell and landed face down with his head and chest on the bench ... "

Prisoners in an adjacent cell heard Briscoe "choking and gasping for breath" but their cries for help were ignored. He died shortly before midnight but his body was not found until two hours later, during which time the two duty police left on the night shift had been checking emails and surfing the internet.

John Pat's death was to be the catalyst for the Royal Commission into Aboriginal Deaths in Custody. Begun in 1987, the inquiry spent almost four years and more than $40 million investigating 99 deaths, 32 of them in Western Australia.

Twenty-five years later, Kwementyaye Briscoe's death was to prove that, far from breaking the vicious cycle of indigenous abuse and neglect in detention, the problem is fundamentally unchanged and the royal commission appears to have achieved little beyond a raft of more than 300 worthy recommendations. Those recommendations have been largely ignored.

A report by the Australian Institute of Criminology released yesterday confirms that another 325 indigenous Australians died in custody in the two decades since the royal commission delivered its findings, and that the numbers of deaths have risen significantly in the past few years.

The report argues that "significant improvements" have been made to prevent deaths in some areas, including measures that have seen a marked reduction in suicides by hanging. "While the number of indigenous deaths in recent years is high, the total is lower than would be expected based on the proportion of the prison population that is indigenous," it says.

But this attempt at positive spin simply underscores a more alarming fact: the rates of Aboriginal imprisonment across Australia are exploding. As the report notes, in 1991, when the royal commission's final report was handed down, one in seven Australian prisoners was an indigenous person. Now the ratio is more than one in four.

Indigenous people comprise 2.5 per cent of the total Australian population but they now account for more than a quarter (26.1 per cent) of the adult prison population and almost half (46.2 per cent) of youths in juvenile detention.

The situation has continued to deteriorate over the past decade, with indigenous people 11 times more likely to be imprisoned than non-indigenous people across mainland Australia, and 18 times more likely to be imprisoned in Western Australia. ANU law professor and former Australian of the Year Mick Dodson describes the imprisonment rate for indigenous Australians as "absolutely shocking" and says the increasing numbers of juveniles and women being locked up is particularly alarming.

Dodson believes the findings and recommendations of the royal commission are being ignored in most parts of Australia. "I don't think you will find one death in custody since the royal commission that has not involved some breach of the recommendations. Twenty years later, we are still saying that. It is a disgrace," he says.

Professor Larissa Behrendt of the University of Technology, Sydney, says the Briscoe case highlights the urgent need for an independent body to investigate deaths in custody. "This would eliminate a lot of the problems and the suspicions when you have police investigating police," she says.

Behrendt objects to attempts to excuse the continuing incidence of deaths in custody with rising imprisonment rates. "It is madness and a very serious problem when it is being argued that the situation is better because there are fewer deaths compared to the total prison population. We continue to have cases as bad as those investigated by the royal commission," she says.

While the problem of deaths in custody is exacerbated by many indigenous prisoners' chronic health problems and a high suicide rate - one in five deaths - Behrendt says there is ample evidence that abuse and neglect are contributing. She compares the treatment of Kwementyaye Briscoe with other cases such as that of Mr Ward, the Aboriginal elder who died in 2008 after being driven hundreds of kilometres in searing heat through the WA outback in a prison van.

"We could have improved things a lot more than we have, given all the work that has been done and all the recommendations that have been made," says Behrendt. "The royal commission provided a great blueprint. There is no mystery about what works. It has all been laid out. That's the most frustrating thing: this can be fixed."

In the Northern Territory there has been a marked deterioration since the federal government launched its emergency intervention in early 2007 in response to an alarming report on child abuse in indigenous communities. While there has still not been one successful prosecution for child abuse, the big "law and order" crackdown and a jump in police numbers in the territory has triggered an 82 per cent increase in the number of indigenous prisoners between March 2007 and last December.

Researchers at the University of Technology, Sydney, have noted that if the Northern Territory were a country, it would now rate second only to the United States for rates of incarceration, with 0.67 per cent of the NT population in detention compared with 0.73 per cent of Americans. And 83 per cent of the NT prison population is black.

The royal commission said that one of the main factors contributing to deaths in custody was that "too many Aboriginal people are in custody, too often". In 1991, there were 2140 indigenous people in prison across Australia. In the first quarter of last year there were 7873 black prisoners - a 268 per cent jump in two decades.

While there is ample evidence of callous if not criminal behaviour by police and prison staff, it is also true that they have become front-line forces in a losing battle with social disintegration in many indigenous communities. Territory Police Association president Vince Kelly said last year it was a miracle there were not more deaths in custody. "There are thousands churning through the watchhouse each year in poor health ... No government of any stripe has done anything to help police deal with the problem in any way," he said.

In his finding on the Briscoe death, Coroner Greg Cavanagh said the case highlighted the pressures on police who were expected to detain and accommodate large numbers of heavily intoxicated men and women every night in inadequate facilities. "The numbers of indigenous Australians taken into protective custody in the NT each month is a national shame, as are the disgracefully high levels of chronic ill health and early death related to excess alcohol consumption."

After noting that police had failed to honour their assurances that "systemic failures" in procedures identified in the death of another young Aboriginal man, Cedric Trigger, in the Alice Springs watchhouse in 2009 would be rectified, Cavanagh said of the Briscoe case: "The only positive thing to come out of this sad death is that it appears to have been a catalyst for profound and positive change."

That profound change seems to have been as hollow a promise as those made after the death of John Pat and the royal commission. Chronic overcrowding is worsening conditions in prisons and police watchhouses across the territory, as it is in Western Australia. An NT government promise to put nursing staff in watchhouses looks like failing for lack of trained staff.

Meanwhile, cuts in Legal Aid funding mean many juveniles are going before the courts without representation. "People who should be contesting charges are told to just plead guilty," says Larissa Behrendt. "This is creating long-term damage by sending young accused on pathways they shouldn't be on."

The 1983 inquest into John Pat's death ended with five police committed to stand trial for his manslaughter. A year later, the five were acquitted by an all-white jury. They returned to active duty and were later promoted. The royal commission led to no charges over the 33 deaths in custody that it examined.

None of the 12 police who dealt with Kewmentyaye Briscoe on the night of his death in Alice Springs last year has been prosecuted, despite the Coroner finding "multiple failings on the part of individual police officers and senior management that allowed Kwementyaye's death to take place".

Against these odds, Briscoe's family remains determined to fight for an official acknowledgment of culpability in his death.

The NT government reneged on an initial offer last year by former chief minister Terry Mills to discuss possible compensation. Human rights lawyer George Newhouse says the family is now exploring a claim under the territory's Worksafe laws as a last resort before launching possible civil action.

"We have attempted to avoid litigation because of the traumatic effect on the family and the police involved, but the Northern Territory government seems hell bent on forcing the family to sue everyone from the lowliest police officer involved to the government before they will consider an ex-gratia payment," he says.

Newhouse believes there is far more at stake than redressing the terrible wrong done to one young man. "There will not be cultural change in the Northern Territory until someone is held responsible for their actions in these tragic deaths. The reluctance of the Northern Territory Director of Public Prosecutions to even consider charges against culpable officers indicates the depth of the cultural change that is required."

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