Terrorism in our own backyards: Calling for justice in deaths in custody

The Head On Festival Memorial in May. Photo: Rachel B. Haubi

No one ever wishes to witness a 17-year-old boy impaled on an iron fence. “A freak accident,” the coroner declared, exempting NSW police who denied chasing the teenager.

But civilians had seen a police van clip the boy’s bicycle. Against all protocols, the officers removed the body from the spikes and sent the rescue vehicle away.

The rider was Thomas James Hickey, more commonly known as TJ, a Kamilaroi boy returning from his mother’s house on February 14, 2004.

Earlier that morning, a bag was snatched in Redfern station. Four police cars were sent to “The Block” to locate a suspect whose bulky and mature features contrast TJ’s boyish stature. A police car spots TJ. The radio crackles as a new order is sent out.

As TJ notices a police wagon coming up the street, he crosses the adjacent car park and enters Renwick Street. When the menacing wagon reappears, it becomes clear that he is being followed.

When you are born Aboriginal in a land ruled by white supremacy, you learn to fear the coppers. Facts teach you that if you are caught, you might never come back. And the justice system will not care.

So you may as well run. And that’s exactly what TJ did.

TJ Hickey died the following day at Royal Prince Alfred Hospital.

Constable Michael Hollingsworth, the vehicle’s driver, gave three conflicting versions of the incident. The officer was later excused from giving evidence at a coronial inquiry into TJ’s death on the grounds he could incriminate himself.

The bicycle disappeared and the scene was hosed down before any investigation was undertaken.

Indigenous Social Justice Association (ISJA) secretary Raul Bassi said: “Deaths in custody are not treated as crime scenes.”

The evidence is washed away, the blood drained down the Sydney gutters, hushed by the abusive stream of power. A case closed for some, while wounds remain open for others. Justice waits.

Many deaths, no justice

More than 15 years after the incident, Bassi still recalls the Redfern riots that followed the Kamilaroi boy’s tragic death. “There was fire everywhere, no one was expecting that, especially not the police.”

“That’s when I met Ray Jackson,” an Aboriginal activist, part of the Stolen Generations, and regarded by many as the father of the Deaths in Custody campaign.

The Wiradjuri elder founded ISJA to pursue the work of the Deaths in Custody Watch Committee, after it had its funding cut by the John Howard government in 1997. Jackson and ISJA were awarded a Human Rights medal by the French government in 2013, two years before he passed away in his Waterloo flat.

“My involvement began with TJ Hickey and has never ended since,” Raul says as we arrive at a memorial for victims of deaths in custody.

A black wall rises before us with a patchwork of pinned photographs. As I glance at it, it becomes clear that I am being stared back at. Countless faces of fathers, brothers, daughters smile.

A handsome man’s eyes twinkle as his new-born child rests in his arms. “Tane Chatfield,” Raul says, “he died at 22, the day before his release in 2017.

“The police called it a ‘suicide’... The parents are still waiting for answers.”

It seems that many are still waiting, I think as I stare at TJ Hickey’s and David Dungay’s portraits. Many have witnessed the CCTV footage of Dungay, a Dunghutti man, choking out “I can’t breathe” 12 times while prison guards restrain him in an asphyxiating position.

Rebecca Maher, Eric Whittaker and Patrick Fischer are also present, immortalised.

“This is Ms Dhu,” Raul says as he points to the photo of a 22-year-old woman. “She called the police for domestic violence and was arrested for unpaid fines.”

“Her ribs were broken; the officers said she was ‘faking it’ and dragged her on the floor...”

A darker-skinned Aboriginal man in a cowboy hat observes us under the Western Australian sun. “Mr Ward,” Raul begins, “they put him in the back of a van for 300 kilometres with temperatures of 43oC and no air-conditioning…

“He was dead before he reached the prison”.

The list goes on. Some cases dating back only weeks. “Cherdeena Wynne, April 2019”, I read under the portrait of a 26-year-old woman.

“Eight officers came into her home calling her by another name and held her to the ground without checking her ID — they had the wrong person!” says Raul.

“She lost consciousness and died in hospital five days later, 20 years after her father died in custody at the same age...”

The truth might be inconvenient, but it is clear. TJ Hickey’s death is not an isolated case, but part of a far greater pattern.

Aboriginal and Torres Strait Islander peoples represent nearly 3% of the Australian population, yet they make up 28% of the country’s prison population. Australia’s First Nations peoples are 10 times more likely to end up in jail than non-Indigenous peoples and are the most incarcerated population in the world, with higher rates than African-Americans.

This stark overrepresentation of Indigenous Australians’ incarceration was raised by the 1991 Royal Commission into Aboriginal Deaths in Custody, which issued 339 recommendations.

“Only a handful have been implemented,” declares Bassi. During the 30 years that followed the royal commission’s findings, more than 400 Indigenous people have died in police custody.

Stewart  Levitt, a lawyer regarded by many as a human rights champion, said at a Head On forum in Paddington, Sydney, in May, “only a fraction of the time are they guilty for what they go to jail for.”

A recent The Guardian investigation reveals that more than half of the Indigenous Australians who died in custody since 2008 had not been found guilty.

“We need to stop jailing people unless they have committed a violent crime,” Bassi asserts, underlining the unequal majority of Aboriginal individuals detained without proof of guilt.

“Eighty percent of Aboriginal defendants are refused bail and sent to remand custody while 80% of non-Aboriginal defendants are released on bail … If we stop remand, we stop many deaths.”

Unanswered questions

Tane Chatfield had been on remand for two years at Tamworth Correctional Centre when he asked his mother to bring his red shirt for his final court appearance. “Ma’, I’m coming home!” he told her. His lawyer was confident the young father would be released.

Less than 24 hours after providing evidence proving his innocence, the Gumbaynggirr and Gomeroi man was found unresponsive in his cell.

“I walked into ICU to find my 22-year-old boy completely naked with only a pair of hospital socks on,” Nioka Chatfield says at the forum as she trembles, describing the blood found on her son’s chest and the skin under his fingernails.

Ice containers encircled the young man’s body while the fan was running. No social workers consulted the distressed parents who were pressured into giving their son’s organs up.

Chatfield’s death was not suspicious according to NSW Corrective Services, deeming that he had taken his own life.

“Then why didn’t he have his clothes on?” His family’s questions remain unanswered two years after their loss.

“No one ever called me to tell me that my son was deceased,” Leetona Dungay, David’s mother, disclosed at the forum.

David died of asphyxiation in 2015 after being restrained face down by five correctional officers, weeks before his release. The 26-year-old diabetic had been caught eating a packet of biscuits.

The coronial inquest revealed that, while the Immediate Action Team had been pressuring nurses to raid David’s cell, they had never received their consent.

“This should be treated and investigated as a crime,” affirmed Paddy Gibson, a senior researcher at the Jumbunna Institute for Indigenous Research and Education, who also spoke at the forum.

Systemic racism

Deaths in custody are but the tip of the iceberg. Levitt said: “There is a terrible inequality within the justice system.

“Aboriginal people are not protected properly and prosecuted unduly.

“This systemic racism has effects that permeate all the way down…”

The truth is that when talking about deaths in custody, we are talking about the symptoms, not the causes.

Despite Bassi battling these systemic injustices for more than 15 years, he makes it clear that we cannot wait to change the system. “First we have to stop deaths in custody — the first thing is to keep the people alive.

ISJA has submitted a declaration to state parliament. Among other demands, it calls to abolish the Suspect Target Management Plan, which racially targets First Nations peoples 18 times more than non-Indigenous peoples and 33 times more for those under 15 years old.

They demand that police and prison officers be held accountable to the same laws as the rest of society and that any death in custody be treated as a crime scene.

As many lawyers encourage innocent Aboriginal defendants to accept a lower charge by pleading guilty, ISJA is also requesting a review of all current prisoners and that remand for non-violent crimes be stopped.

“We’ll find a way to get independent investigations for all deaths in custody,” Bassi says.

Until then, families that have suffered a terrible loss will remain shunned from the grieving process. “We have to help heal,” Tane’s mother shared at the forum.

We can only heal together. Bassi once said: “to change the country we need the rest of the country”, adding, “We will never be free until all Aboriginal peoples are free.”

[This is an edited and abridged version of a longer article that can be found at links.org.au.]

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