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‘I want to break that cycle’: the relatives still fighting for justice over deaths in custody

Lorena Allam and Calla Wahlquist
·12-min read

One year after the coronial report into her mother’s death in a police cell, Apryl Day was leading another protest. It was a national day of action marking the 30th anniversary of the royal commission into Aboriginal deaths in custody. As Day stood on stage her mother’s face looked back at her from placards, along with the faces of some of the other 474 Aboriginal and Torres Strait Islander people who have died in custody since 1991.

Tanya Day died from an injury sustained in a police cell after she was arrested for being drunk on a train, under a law the royal commission recommended be appealed 30 years ago. The Victorian government finally agreed to repeal the law in 2019, two years after the Yorta Yorta woman’s death, following the sustained activism of her children.

The high profile coronial inquest thrust her children into the role of activists and public commentators. In the past week alone Day has made a string of media appearances. Strangers recognise her in public. The worst thing that ever happened to her, her mother’s death in police custody, is now her public identifier.

Tanya Day’s family members, including Apryl Day (centre), march to the coroner’s court in August 2019 after a smoking ceremony.
Tanya Day’s family members, including Apryl Day (centre), march to the coroner’s court in August 2019 after a smoking ceremony. Photograph: David Crosling/AAP

“When [families] take on that public role and the advocacy, your family and your name and image is everywhere,” Day says.

That public profile is essential to create the political will required to repeal an outdated law, and Day says she’s grateful for it. But the cost of achieving change is high. Aboriginal families must remain perfect in the public eye to maintain media support, Day says. Journalists are quick to let Black anger become the story.

“You need to be careful in the way you conduct yourselves because the media often pick out what they want about our mob and paints that to be something that’s negative,” Day says. “We’re going through something that’s extremely traumatic, and we need to hold ourselves in a certain way. But the police that are involved and responsible for our loved one’s death, or the prison guard, or the medical officer, doesn’t have to do that in the same way because there are never any consequences for their actions. But there are consequences for the way that the families grieve publicly.”

‘To watch your family member beg for their life’

Dunghutti man Paul Silva, whose uncle, David Dungay Jr, died in Sydney’s Long Bay Jail in 2015, understands this all too well.

“I felt like we was the criminals, and we was attending court, and we was in a criminal trial,” Silva says of the inquest into Dungay’s death.

“Corrective officers attended via video link for the whole duration of the inquiry, due to they was scared to attend the court proceedings, because they was afraid of the family going to attack them. But my response to that is, they’re the reason we’re in this position.”

As the family heard witnesses discuss Dungay’s death in clinical detail, and saw the footage of it played over and over, Silva often had to leave the courtroom to walk off his anger and grief.

“The coronial process is one of the main traumatising parts of these events,” he says.

“You go into those courtrooms and you’ll see videos the public hasn’t seen, and you see evidence that no one else may have seen, and it is a traumatic situation. There needs to be more support on the frontline at those courts, approaching the family members and explaining. It would be good to have an Indigenous agency set up to do counselling with First Nations people when they suffer from these events.”

Silva says the CCTV footage of his uncle dying while being held face down by five prison guards is burned into his brain. He first saw it six years ago, sitting in his grandmother’s loungeroom with his family. They had to wait three years for it to be made public. Then they had to sit through it again while it was played repeatedly to the coroner, and broadcast around the world.

“It’s a traumatic event when you lose someone to natural causes at home, like having a heart attack at home in their sleep. That is traumatic enough. But to watch your family member beg for their life, and continuously plead and say that they can’t breathe, and five people not listening, and they die as a result, and you see everything that had happened in that event, it’s that much more traumatic,” Silva says.

Like Day, Silva has become a leader in the movement against Aboriginal deaths in custody.

“I can remember attending rallies with 30-odd people. And that grew over the five years, when we had the big Black Lives Matter rally at [Sydney] town hall, we had over 40,000 people.

“It’s affected me in a tremendous way, I would say. I’m not a very good public speaker, but once I’m there in the moment, I believe that my uncle just grabs me and guides me – just as he would fight for justice, if it was to happen to someone that he knew.”

Silva says it’s the least he can do for “Uncle Junior”.

“It’s been a bit of a battle, attending these rallies. They are sad events, and they bring back so many traumatic memories, not just for our family, but many other families as well.”

Paul Silva with friends and relatives outside Long Bay jail in December 2017, on the second anniversary of David Dungay’s death.
Paul Silva with friends and relatives outside Long Bay jail in December 2017, on the second anniversary of David Dungay’s death. Photograph: Brendan Esposito/AAP

The Dungay family waited three years for the inquest and then another three years for the coroner to find that none of the guards who restrained David should face disciplinary action. NSW deputy coroner Derek Lee said their conduct was “limited by systemic inefficiencies in training”.

In April 2020, the coroner in the Tanya Day case, Caitlin English, asked the Victorian director of public prosecutions to investigate whether police officers may have been criminally negligent in their treatment of the 55-year-old woman.

But the outcome was no different: in August the DPP told Victoria police, on the basis of the initial police investigation into Day’s death, that no charges would be laid.

There is a tendency, Apryl Day says, for the advocacy around a death in custody to focus on getting the coroner to make the right recommendations, but “that doesn’t mean nothing to us if it’s not actually implemented”.

“You go through a coronial inquest, you listen to all those witnesses, the majority of the time they’re victim-blaming,” she says. “They blame the families. They play footage that you can never un-see. There is no emotional or mental health support while you’re in that. You have the people that are responsible for your loved ones’ death smirking and laughing and making jokes nearby.

“We gave everything for three years, we put absolutely everything into it. We are completely depleted in all areas of our lives, and it just means nothing to them … It does make you think, what am I doing? What have we done? But then the dust settles and you see that you still have made an impact and at least it wasn’t because you didn’t give it your all.”

Even when recommendations are adopted, there is a lack of urgency. Tanya Day’s uncle, Harrison Day, died in custody in 1982 after being arrested for public drunkenness. His death was examined by the royal commission, which then recommended the crime be abolished. In 2018, after Tanya Day died, the coroner foreshadowed that she would recommend a change to the law. It took nine more months for the Victorian government to commit to the change. The legislation passed parliament in February, but won’t take effect until 2022.

“We want to set it up so it’s going to succeed in the best way possible to keep our mob and our people safe, so they don’t suffer the same fate as our mum,” Apryl Day says. “But theres’s always a waiting game about when they’re going to do it and it’s always a political game.

“If that had been implemented when they first said it [in the royal commission] mum could still be here.

The Day family – Apryl and her siblings Belinda, Warren and Kimberley – had the support of activists and the Victorian Aboriginal community, a strong legal team, and the fortitude of having a mother who taught them to speak up. They were united as a family. It’s more than many have, Day says.

“It’s difficult to see other families that aren’t as lucky and their stories aren’t being told at all … It’s really difficult for those families because they’re not receiving any acknowledgment or any justice.”

‘I tell my family we’re going to be strong’

Bernadette Clarke comes from such a family.

JC, as Clarke requested her little sister be called, died in a police shooting in Geraldton on 17 September 2019. A police officer has been charged with her murder and pleaded not guilty. It is the first charge laid against a police officer for a death in custody in Western Australia since the death of teenager John Pat in Roebourne in 1983, and the first time an officer has been charged with murder.

Clarke is fighting to be recognised as JC’s senior next of kin while trying to secure stable housing. Clarke and her three children have been homeless, bouncing from relative to relative, since 2018.

“I’m meant to be on the emergency housing priority list,” Clarke says. “It can’t be too much of an emergency when I’ve been waiting three years now.”

Clarke’s mother was a victim of family violence, unable to care for her children due to health issues caused by repeated assaults. Clarke and JC spent much of their childhood in separate homes. JC lost custody of her own son when she was imprisoned. Clarke links her sister’s severe mental health issues to the trauma of that childhood separation, and says JC’s worst moments were triggered by fear and anger over losing her son, exacerbated by drug use.

“She was never allowed to be a mum to her own child,” she says.

Clarke moved from Geraldton in 2018 and is now estranged from much of her family in that region.

Clarke fought for the trial to be held in Perth, closer to where she and her brother are based, rather than in Geraldton, but the police officer, who has pleaded not guilty, applied for it to be moved to Geraldton.

The trial will be “a tough one”, Clarke says.

“It’s going to be just more opening up, being traumatised as well as being questioned about everything,” she says. “It’s going to be hard but I tell my family we’re going to be strong and we can do this, because we’re her voice. She told me, you can hear me? And I said yes. Well, I hear you. And I said I always will, on Earth my baby I’m going to be your voice, and you hear me loud and clear.”

After the trial will come the inquest – another year’s worth of court hearings and public dissection of intergenerational trauma. Clarke worries for JC’s eight-year-old son.

“I want to break that cycle. I want to hurt that cycle. I want to turn it around and make it into something lovely, special, memories. I want him to know that his mum passed away in a proper way, a respectful way. He is only eight or nine years of age and he is being traumatised.”

What justice looks like

This month Day launched a not-for-profit organisation called the Dhadjowa Foundation to help families through the coronial process following a death in custody.

The coronial inquest is “not a kind process”, Day says. Families are told they “can’t gasp or can’t be shocked” in response to evidence or footage of their loved one receiving fatal injuries.

“It’s not set up in a culturally safe manner … some families go in there and leave with nothing. They leave more devastated because they receive nothing besides cover-ups and lies and ‘I do not recall’.”

Against that background, the minor considerations afforded the Day family — a smoking ceremony and acknowledgement of country; the clapsticks, possum skin cloak and a picture of Tanya Day at the front of the court; the gumleaves in the aisles; the photo wall in the foyer – felt like major victories.

“We had to really push for it and we were lucky that our coroner allowed for those things,” Day says. “But some families don’t get that, they are not even allowed to wear the T-shirts [showing] their loved ones … And some families never recover, they never ever recover after they experience a death in custody.”

Silva says many Aboriginal families feel that any post-death investigation must be independent of corrections or police, with greater transparency.

“Our main aim is to get an independent body – an independent Aboriginal body – to investigate future Aboriginal deaths in custody. That ought to reassure the family members that these events and cases are being investigated adequately at an early stage,” he says. “I’m not the only person that believes that it is unacceptable – like, how is it acceptable for police to investigate police?”

Silva is clear about what justice looks like for the Dungay family.

“Justice means accountability. Our family won’t rest until they’re held accountable for their actions. They continue to live in society, celebrate their birthdays, celebrate Christmas, they’ve just celebrated Easter. But one week after Easter, our family had to attend a rally and fight for the justice that our loved one deserves.

“They enjoy life, while our loved one is in the ground.”