As always, court excuses authorities over Eric Whittaker’s death in custody

A protest to demand justice for Eric Whittaker, outside NSW parliament on December 6, 2017. Photo: Pip Hinman

Parklea Correctional Centre officers dismissed inmate Eric Whittaker’s ongoing cries for help in the early hours of July 2, 2017. The 35-year-old Gamilaraay man’s pleas first drew their attention at 4.50am. He subsequently made 20 distress calls over the emergency intercom.

The clearly disoriented and frightened man was told to wait for morning staff and treated as if he was putting it on. When staff finally entered his cell at 8.08am, Whittaker was found in a terribly distressed state.

After the three hours-plus delay, Whittaker was taken to hospital and shackled to a bed for 16 hours, unconscious, where he eventually died of a ruptured cerebral aneurysm: a condition that about two-thirds of sufferers survive. 

Two days later, at 4.55pm, Whittaker’s family were advised the father-of-four’s life support should be switched off.

As is required with all Aboriginal deaths in custody, a coronial inquest was held into Whittaker’s death. From the outset, it was insisted that no criminal prosecutions would be considered. On completion of the inquest on February 28, the NSW Coroner’s Court determined no recommendations would be made.

The Indigenous Social Justice Association (ISJA) says a pattern has emerged in successive First Nations coronial inquests, whereby authorities are excused of any wrongdoings, despite the court’s supposedly neutral stance.

Extreme prejudice

Whittaker’s great aunt Daisy Fernando told Sydney Criminal Lawyers: “It's up the shit the way they treat the Black kids. And it's only the Aboriginal boys that they treat like dirt.”

“We’ve asked them if they do that to the white boys, but they never answer you. You never hear of white boys getting killed in jail. If you did, it would be different.

“But we never hear of it. So, it's more or less saying that it's only the Aboriginal boys that are getting killed in there.”

Whittaker’s family requested criminal prosecutions be pursued under the provisions of section 78 of the Coroner’s Act 2009 (NSW), which stipulates the coroner can forward matters to the Director of Public Prosecutions when a likely indictable offence has occurred.

However, the Coroner’s Court dismissed the request, stating the purpose of the inquest was not “to attribute blame to individuals”, but merely to understand how the death occurred.

Aunty Daisy is adamant the court’s decision was wrong. 

"Everybody that was there would say it was wrong," she made clear. "It really breaks your heart to see that it's only Aboriginal boys that are getting treated like this, even by the judge."

Nothing to see

The Coroner’s Court made no recommendations and asserted that Corrective Services NSW and then-prison operator GEO Group have since made policy changes to ensure another dying First Nations man will not be left calling for help in his cell.

But Aboriginal rights activists are not satisfied with the finding. They are calling for an overhaul of the way coronial inquests are handled, insisting the court is simply providing absolution to police officers and prison guards.

Dunghutti man David Dungay died on December 29, 2015, while being restrained in the prone position by six prison guards. The Coroner’s Court ruled he died of cardiac arrhythmia. No attempts were made to bring criminal charges against the officers.

Wiradjuri woman Rebecca Maher died in a Maitland police cell on July 19, 2016, after being left alone in what appeared to be a heavily intoxicated state and without required checks being carried out. The court found “her death occurred accidentally”. No further action was taken.

Wakka Wakka man Patrick Fisher fell to his death from a balcony on February 17, 2018, as five police officers were kicking at the door of the unit he was in. The coroner made no judgement as to the police’s approach to the situation or any recommendations.

Gamilaraay teen TJ Hickey died on February 14, 2004,as a result of being impaled on a fence while a police vehicle followed his bike. The Coroner’s Court agreed the officer driving did not have to testify on the grounds he might have incriminated himself.

Justice denied

ISJA secretary Raul Bassi told SCL: “No police officer, prison officer or health officer connected to an Aboriginal death in custody has ever — I repeat — ever been convicted of any crime.”

Regarding the coronial findings into Whittaker’ death, he said you cannot let someone off after making a mistake simply because they have made some changes to stop them doing it again. “The mistake was made and someone was killed”. 

The other point he made was that the Coroner’s Court ruled out the option of considering criminal charges from the beginning of the inquiry. Bassi said this is at odds with the purpose of the inquest, because if an offence has been committed, it should be dealt with.

The long-term activist pointed out that the 2012 coronial inquest into the death of Brazilian man Roberto Curti — who was tasered to death by police — recommended that the Police Integrity Commission investigate the officers involved, resulting in several being prosecuted.

Racism pervades

In 1991, the Royal Commission into Aboriginal Deaths in Custody delivered its final report. In it, the commission made 333 recommendations, including that state coroners investigate deaths in custody and “make such recommendations as are deemed appropriate with a view to preventing further custodial deaths”. 

Yet, since that time there have been more than 420 deaths — and that is with coronial inquests being carried out.

Bassi said if you look at all the inquests together, there is a very clear pattern of the court’s ruling these deaths as an accident, while overlooking that these accidents are being caused by officers — whether police or correctional. 

Underlying this equation, according to Bassi, is systemic racism. And without acknowledgement of that, change cannot occur.

As for Aunty Daisy, she sees little hope for improvement. “It's not going to change for Aboriginal people. They're not going to change their ways or their attitude,” she concluded. 

“We will still be treated like dirt, no matter which way it goes.”

[Paul Gregoire is a Sydney-based journalist and writer for Sydney Criminal Lawyers.]