Rest in Peace Kwementyaye Briscoe

 

This is an especially long post. It details the circumstances surrounding, and leading up to the death in custody of Kwementyaye Briscoe. Kwementyaye Daniel Briscoe was only 27 years of age when he died on 4 January 2012, alone in a cell in the Alice Springs Watch House. At the time of his death, Kwementyaye was being detained in the Alice Springs Watch House. He had committed no crime.

I have chosen to reproduce large sections of the Coroner’s report in the text that follows, because I think much of the detail speaks for itself. (Aside from brief intermediary comments that I couldn’t help but include, there is little to no analysis.) In many ways, this is the story of how and why Aboriginal men continue to die in police custody.

The Coroner recorded the cause of death as, “airway obstruction due to a combination of positional asphyxia, aspiration and acute alcohol intoxication”. Based on the Coroner’s report, I suggest a more accurate cause of death would read something like, “racial-profiling, over-policing, abuse of power, failure to fulfill duty of care, excessive use of force, assault, and willful and/or criminal neglect.”

 

January 4th.

On the evening of January 4th, Kwementyaye joined a large group of friends in the vicinity of Flynn Oval, which is approximately 5kms from the centre of town in Alice Springs.

Police received a complaint from a member of the public about intoxicated persons “arguing and fighting near Flynn Drive Supermarket. Constable Evans and his partner Constable Blansjaar responded to the call.

When they arrived “in the vicinity of Flynn Drive” they noticed a man and a woman behind the school. The couple were not fighting. They were, however “heavily intoxicated.” Constable Evans and Constable Blansjaar detained them both in “protective custody.”

Constable Evans then noticed “a large group of people sitting along the tree line on the opposite end of the oval.” In his oral evidence, Constable Evans explains that “his initial intention was to see if they had any information about the alleged fighting at the shops.” (Sure.)

Constable Evans began walking towards the group, Constable Blansjaar drove towards them in the police van. When Constable Evans was half way across the oval, one of the young women in the group shouted out to the others, “in an Indigenous language Constable Evans could not understand.” Everyone in the group, including Kwementyaye, began to disperse:

“The group continued to move and some appeared to cross into Centralian Middle School to cross over into the vicinity of the School.”

At this point Constable Evans called for back up on his radio, and began pursuing Kwementyaye, among others, in earnest.

Why? Didn’t Constable Evans just state that his intention was simply to ask if they had any information about the alleged fighting at the shops?

Constable Evans is careful to note that he saw a number of [empty?] liquor bottles etc. on the ground, when the group began to disperse. This would have given him reason to believe that some members in the group had been drinking in a public place. This is not, however, the reason he cites; In his record of interview, Constable Evans explained the following to the investigating officer:

“Initially due to his aggressive manner towards myself, um, I feared that of that was the reaction he was going to take from me (sic) that he may go on to harm someone else, um, the feeling from Police and going into the school, um, which has been known to be a hot spot within the Gillen area, I feared that there was likeliness (sic) to offences being committed in there, drinking further or actually damaging the school itself’.”

What? That’s right, it doesn’t make any sense. The only possible justification for pursuing the group, and calling for backup – let alone what happened next – was the fact that there was evidence the group had been drinking in a public place. The Coroner doesn’t seem to have a problem with Constable Evans’ reasoning. In fact, the Coroner found that it was completely acceptable for Constable Evans to detain Kwementyaye, based on the following facts:

“There is little doubt that Kwementyaye had been drinking beer for much of the day and into the evening and his friends suggest that he had consumed a significant amount of the VB that was brought by the group from the take away outlets. Furthermore, he was drinking in a place that had been designated as a non-drinking area, where at least some members of the group had been fighting or arguing to an extent that prompted a phone call to police. I accept the assessment made by Constable Evans that it was appropriate to detain Kwementyaye pursuant to s129.”

Firstly, Constable Evans could not have known that Kwementyaye had been drinking earlier in the day, nor that he was intoxicated. Why has the Coroner granted these facts as reason and justification for what happened next? Secondly, yes there were liquor bottles on the ground when the group dispersed. Thirdly – and most surprisingly – why has the Coroner apparently taken it upon himself to assume that it was a member of Kwementyaye’s group who had been involved in the fight that prompted the initial phone call to police? There is absolutely no evidence to suggest that this was the case.

 

The first “fall.”

The Coroner notes that he only had one account to rely on as to “how [Constable Evans] finally caught up with Kwementyaye, and how he was taken to the ground.” That account was given by Constable Evans himself, and is recorded, in part, thus:

“Perhaps in response to the arrival of another police Unit, some members of the group doubled back and started running in the direction they had just come from. Constable Evans jumped a fence and began to jog after a smaller breakaway group of five or six. At the back of that group was Kwementyaye and when he got close to a large iron gate beside the school, he slipped on the bitumen or dirt and fell.

According to Constable Evans, when Kwementyaye got up after this first fall, he had a small cut above his left eye, described as a “laceration above his eyes that had . . . burst. There was fresh blood around the cut but it wasn’t gushing or dripping down his face” (Transcript, 18.6.12, at p 230).

 

The second “fall.”

Constable Evans gave evidence that after falling the first time, Kwementyaye got himself to his feet and started swearing. Constable Evans allegedly gave Kwementyaye a direction to “take a step back,” which Kwementyaye allegedly ignored. According to Constable Evans, Kwementyaye stepped forward, which prompted Constable Evans to “push” him over:

“He ignored a direction to take a step back and when he stepped forward again, Constable Evans pushed him in the chest with an open left hand, causing him to stumble and fall into the gate, before falling forward.”

Following this second fall, Kwementyaye was “secured on the ground” using a “three point hold position,” which involves placing one knee on the side of his shoulder and securing his right hand behind his back. At that point, other officers who had been called as back up, arrived on the scene. Kwementyaye was assisted to his feet by Constable Evans and Constable Ralph, and “he cooperated in walking to the police van and climbing up inside, without further incident.”

 

The ride to the Watch House.

Kwementyaye was detained along with three other men: Oscar White, Lance Dixon, and Caleeb Nipper, who were placed into “protective custody” alongside him in the van. I note that Caleeb Nipper had been “chased down by police and forcibly restrained, before being handcuffed and placed in the back of the van.” (Keeping in mind that these men were not even suspected of having committed any crime.)

Unbeknown to police, Oscar White had a 700 ml bottle of Rum in his pants. It was Constable Ralph’s responsibility to search all prisoners before they got into the van. He admits that he either neglected to search Oscar White, “or was not careful enough when he did so.” This is one of many apologies that the Coroner makes for the actions of the police involved that night:

“It is easy in hindsight to be critical of the failure to adequately search detainees . . . but I can well understand how it was neglected in that environment.”

The men shared the 700ml bottle of rum in the van on the way to the Watch House. Caleeb Nipper was handcuffed and could only drink small amounts at a time. According to the Coroner’s report, it was Kwementyaye who “drank a substantial amount.” The Coroner heard in oral evidence that Caleeb Nipper, Oscar White and Lance Dixon were sick and vomited in the back of the van on the way to the Watch House.

 

Why were they placed in a prison cell, not taken home or placed in a “sobering up” shelter?

The Custody Manual states that:

“A Watch House Keeper is not to accept a person into custody under section 128 . . . unless the apprehending member or members have made all reasonable efforts for the person to be cared for elsewhere while intoxicated.”

The Coroner is rather generous, and, once again adopts an apologetic tone:

“Although I am not convinced that Constable Evans gave the range of options much thought that night, I am not critical of him for taking Kwementyaye to the Watch House rather than home or to a sobering up shelter. The shelter was known to have limited places and would not accept customers who were highly agitated. Constable Evans was responding quickly to what could have become a volatile situation and it is not appropriate to second guess that decision so far removed from the event.”

THIS IS HOW DEATHS IN CUSTODY HAPPEN OVER AND OVER AGAIN. The issue of detaining intoxicated persons in police cells, rather than taking them home, or to a “sobering up shelter” was a key focus of the recommendations of The Royal Commission into Aboriginal Deaths in Custody (1987 – 1991).

It is worth noting official police procedure with regard to “protective custody,” because there was no one on Watch House Keeper duty this particular night, nor had there been “for some months.”

“The PAA allows police to exercise their discretion to take an intoxicated person home or to a sobering up shelter, rather than to the Watch House. Although the Act itself does not regulate that discretion, police should be aware of the relevant provision of the Custody Manual, which states, at S 21, that: Police cells should remain the least preferred option for the custody of intoxicated persons.”

If an intoxicated person is taken to the Watch House and placed in a cell, the procedure manual explicitly states that:

“Watch House staff must determine the reason why a prisoner to be held under s128 of the Police Administration Act was not taken to the sobering up shelter. The reason is to be recorded in the offender journal. If the Watch House keeper is not satisfied with the reason for the attendance of the person at the cells as opposed to the shelter, approval from the watch commander is to be obtained before detention continued” (italics original).

The Coroner was highly critical of the fact that there was no Watch House Keeper on duty that night. No Watch House Keeper effectively means no second-opinion and no second-guessing or questioning the decision to detain an intoxicated person or persons in a prison cell. It also means there is a lot less accountability as regards the decisions and actions of the police involved.

 

Arrival at the Watch House (and Constable Evans “dropping” a detainee).

“It was evident”, the report reads, “that there was a level of chaos in the unloading of both police vans, which set the tone for the processing of detainees that night.” What the Coroner is referring to here, is a series of “falls” and associated incidents.

For example, Mr. Williams was unloaded from the police van by Constable Evans, and then “let drop from standing height onto the hard floor below.” “To the lay observer watching the CCTV footage,” the report reads, “the actions of the officer appear careless and insensitive. When questioned about this, Constable Evans agreed that “it doesn’t look the best,” but explained that he was hurried “because he was concerned that there were other detainees who were now at loose in the sally port.” (Sure.)

The Coroner gives Constable Evans a slight rap over the knuckles in his response to this “fall”:

“I accept that Constable Evans was concerned about the potential danger of having numerous detainees in and around officers, when they were drunk and unrestrained. However it is unacceptable to drop someone from standing height, particularly when they are in protective custody unable to properly care for themselves.”

That’s right Constable Evans, “protective custody” is when police detain a person or persons because they cannot take care of themselves. When a police officer takes a person or persons into “protective custody,” it is to care for and protect them because they are unable to do so themselves.

 

The Observation Cell and a further “incident.”

Kwementyaye was placed in an observation cell with Lance Dixon and Oscar White for approximately 20 minutes while Watch House staff and the four general duties police processed other “custodies.” The first to be “processed” was the detainee who Constable Evans had just “let drop” onto the hard floor from standing height – Mr. Williams. According to police,

“Mr. Williams was “particularly challenging in the reception area – he feigned illness, spat at police and shaped up to officers, eventually prompting Constables Evans and Blansjaar to use a ‘take down manoeuvre’ to contain his aggressive behaviour.”

Not only does this sound *slightly* suspicious given what happened immediately prior, but this piece of evidence was later used to partially explain Constable Evans’ mistreatment of Kwementyaye.

 

Kwementyaye’s third “fall.”

Around seven minutes later (in the observation cell), Kwementyaye’s behaviour appeared to change; CCTV footage shows him “obviously agitated.” The Coroner’s report notes that “his behaviour wasn’t violent, but it did suggest that he was unpredictable and upset.”

A few minutes later Kwementyaye was ordered to come out from the cell, to join four or five other detainees who were being ‘processed’ in reception. What happened next is worth quoting directly from the report at length:

“On the way into the corridor towards reception, Kwementyaye swayed slightly, turned back and grabbed the door handle, appearing then to lean in to get his shirt that was left on a bench. Constable Evans noticed that Kwementyaye wasn’t following behind the others and he took him by his wrist to escort him to reception. What happened next was the focus of some interest during the inquest and I have carefully reviewed the CCTV footage and listened to the arguments of counsel. While Kwementyaye was being escorted his legs went out from under him and he fell forward onto the floor.

I am satisfied that Constable Evans did not intend Kwementyaye to fall to the ground and he could do little to stop him when he did. The last time Constable Evans had seen Kwementyaye he was capable of walking unaided into the Watch House, and he had just seen and heard him being active in Cell 1. He had no idea that Kwementyaye had drunk the rum in the back of the police van and there was no reason to assume that he could not support himself. I reject the suggestion made by counsel for the family that Constable Evans allowed Kwementyaye to fall.

Once Kwementyaye fell on the floor, he was dragged by Constable Evans, (assisted by Constable Ralph once the dragging had commenced) into the reception area and left sprawling on the floor. Although I have no doubt that Constable Evans had to think quickly to get Kwementyaye into reception as soon as possible, it was not acceptable to drag him along the floor by his limbs. As his Counsel, Dr Freckelton SC, conceded in his closing submission, it was a poor exercise of judgement by Constable Evans and there was no sufficient urgency to justify the dragging.”

How we are supposed to believe this version of events, I don’t know. And even if we did, – this was a man who had been detained in “protective custody”! who was clearly in need of immediate medical attention! who was shoved and dragged around like an animal!

The Coroner berates the police for dragging Kwementyaye and notes that, in the inquest into the death in custody of Cedric Trigger, when footage revealed that Mr Trigger was dragged from the sally port into reception, “senior officers had then agreed that dragging was unacceptable and must not continue.” What IS this?? Moral play-school for police?!?

When Kwementyaye was dragged into the middle of the reception area, a number of other detainees were being processed around him. Kwementyaye lay on the floor for several minutes. The Coroner notes that, “It should have been obvious to anyone paying attention to Kwementyaye at that stage that he was extremely intoxicated . . . he was patently incapacitated by the time he was dragged in and left lying on the floor in reception.” What did Constable Evans do, after observing that Kwementyaye had not moved for several minutes?

“Constable Evans took a pen and applied pressure to his fingernail to see if he would respond to a pain stimulus, a technique he learnt while working as a security officer at a Hospital.”

How about first aid (you bastard). CCTV footage shows that Constable Evans left Kwementyaye lying face down on the ground throughout this entire ordeal; he did not even turn Kwementyaye on his side, let alone check that his airways were unobstructed – basic, basic, basic first aid.

“At one stage Kwementyaye was clearly emotionally distressed and can be seen on the CCTV footage to be sobbing and groaning. . . . He was incapable of taking his own shoes off and he lay on the floor barely moving while another detainee took them off for him at the request of police. The CCTV shows an unedifying spectacle of Kwementyaye lying on the floor for minutes, hopelessly inebriated, while several officers walk around him concerning themselves with the processing of other detainees. . . .

While he lay on the floor, police were joined by Sergeant William McDonell, who was performing the role of Watch House Commander. He appeared untroubled by Kwementyaye’s state, in spite of observing a smear of blood on the reception floor caused by a laceration above Kwementyaye’s right eye. Sergeant McDonnell merely cleaned up the blood smear, asked who Kwementyaye was and ordered him to get up. Kwementyaye did not respond, but Sen Sgt McDonnell was then distracted by another detainee and he left the area without concerning himself about first aid or giving junior staff any guidance on how to proceed.”

How this is not willful neglect (if nothing else), I have no idea.

 

It gets worse.

“After repeated commands from Constable Evans to get up, Kwementyaye managed with some difficulty to lift his weight up onto the bench seat, but he was obviously unsteady and lacked control of his faculties. Soon after he sat down on the bench, he got up and leant against the wall. He was then sat back down, firmly but fairly by Constable Evans, who was busy with another task. Kwementyaye stood up again, and this time, instead of firmly guiding him again or giving him a stern verbal direction, Constable 1/C Evans pushed him hard (Dr Freckelton SC did not demure from use of the term “shove”) with an open hand and sent him sprawling backwards into the wall.”

Once again, the Coroner gives Constable Evans more than the benefit of the doubt:

“Presumably Constable Evans was trying to contain and control the situation, but that pushing motion was an inappropriate response to someone so intoxicated and it had the opposite affect to the one the Constable intended.”

The report goes on:

“Up until that point Kwementyaye had displayed no aggression in the reception area. After the push, he looked upset and picked up a blue plastic property box that was between him and another prisoner. He did so in a pathetically drunken manner, and the plastic box was easily taken from him by an older man seated beside him who was being processed as a protective custody. Constable Evans looked relatively unperturbed at that stage and put his foot up motioning for Kwementyaye to put the box down.

What happened next was an unfortunate escalation of that incident. Kwementyaye stood up with a clenched fist, and although it stayed down by his side, he did move it behind him a few inches and may have been about to ‘shape up’. In response, Constable Evans grabbed him by the arm and slung him towards the reception counter with undue vigour, causing Kwementyaye to hit his arm and head on that surface. It was submitted on behalf of Constable Evans that his objective was to move Kwementyaye firmly to the reception counter to be propped up and searched, but instead Kwementyaye’s legs went out from under him and Constable Evans could not react quickly enough to break the fall.”

How does the Coroner respond to this “incident”? Again, in the most generous of apologetic tones toward Constable Evans and officers involved:

“I accept the motivations of Constable Evans, but the manoeuvre he used was inappropriate to deal with a detainee who was so obviously disabled by the effects of alcohol. I am conscious of the need to see these actions in the context of the evening and to understand them from the perspective of Constable Evans. To that end, I remind myself of the following factors:

First, this was a busy shift in the middle of a hot summer and the Watch House was a testing place to be;

Second, the officer had already had a challenging shift and around half an hour earlier he had assisted Constable Blansjaar with a take down manoeuvre on an aggressive Mr Williams;

Third, Mr Williams had been feigning illness in front of police;

Fourth, Kwementyaye had been agitated at the time of detention near Flynn park and was agitated again in the observation Cell, so the behaviour in the reception area was a stark deterioration, and;

Fifth, Constable Evans had no knowledge that Kwementyaye had consumed the rum in the back of the police van and so was not expecting his level of intoxication to be significantly altered.”

COME ON! Do police officers not have a certain level of RESPONSIBILITY and DUTY OF CARE towards those they FORCIBLY DETAIN in “PROTECTIVE CUSTODY!??”

At this stage of the report the Coroner introduces the concept of cognitive dissonance to explain away the less pleasant aspects of Constable Evans’ conduct toward the detainees. That’s right – cognitive dissonance:

“Dr. Freckelton SC reminded me of the phenomenon of  ‘cognitive dissonance,’ which is caused by conflicting cognitions (thoughts or perceptions) . . . . That may help to explain why, even though Constable Evans observed Kwementyaye’s hopeless state in the reception area, he did not immediately appreciate how incapacitated he was because he could not reconcile that with Kwementyaye’s earlier ability to walk and run on the oval, walk unassisted through the sally port, and be animated in the observation cell. He may also have been affected by having recently dealt with Mr Williams who was feigning illness and exaggerating old injuries.”

There is so much wrong with this. Not only has the Coroner misunderstood and/or misused the concept of cognitive dissonance, but it is hard to ignore the fact that he seems to be going out of his way to apologise for (and ‘explain away’) Constable Evans’ actions.

Furthermore, how dare he use “having just recently dealt with Mr. Williams” when it was Constable Evans who ‘let Mr. Williams drop from standing height,’ and then, minutes later used a “take down manouvre” on him.

Finally, “feigning illness and exaggerating old injuries”? I find it almost unbelievable that the Coroner accepted these statements or claims as evidence, and even more so that he then uses them to explain and justify the actions of the Constable involved. This is a death in custody case! and these men were in protective custody!

 

Removal to Cell 9.

“After Kwementyaye was swung and hit the reception desk, he was spread out on the ground and searched by Constable Evans, assisted by Constable Blansjaar and Constable Grey. It is apparent from the CCTV footage that where his head was positioned, a small pool of blood formed from the leaking wound above his eye brow.

Kwementyaye was carried face down to Cell 9 by the three officers, with one on each arm and one picking up his legs. Prison officer  Parker hurriedly threw a mattress into the cell on an awkward angle which stretched diagonally across the two concrete slabs in the room, and Kwementyaye was placed faced down at the same angle without anyone moving the mattress into a more comfortable position.

When Kwementyaye was carried along the corridor, blood from the head wound fell in droplets on the floor. That drew the attention of four or five sober prisoners in cell 16 who saw the blood and called out to the officers, telling them that the man they saw should be taken to hospital. . . .

After being placed on his mattress Kwementyaye was left alone in Cell 9. What happened for the next few minutes was not observed by police, but it was captured on CCTV and it is harrowing to watch Kwementyaye’s pathetic attempts to move into a comfortable position. 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 onto 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 and the rest of his body on the floor. Any one of these actions had the potential to cause him harm.”

Soon after Kwementyaye was placed into Cell 9, Prison officer Parker began a series of brief but regular checks, which involved her standing in the corridor and looking in to confirm that he was breathing. Prisoners in Cell 16 were watching from their vantage point and, once again, expressed their concern that the detainee needed medical care. This was Parker’s response, in her own words:

“I just turned around and I might have been out of line when I said it but I just turned and said,’Well, youse all carry on like this when youse are drunk,’ and you know, ‘And when youse are sober you just want to be nice to us,’ then I – I think I’ve walked off.'”

 

The change over shift.

At around 11pm the afternoon/evening Watch House shift changed over to the evening/overnight shift. There was no medical assessment made, and thus no such information handed from one shift to the next. There were, however, a number of conversations that took place between the officers changing shift. This is one of those conversations, as recorded in the Coroner’s report:

O’Keefe:  Sarge, can you do an assessment of the guy in 9?

Barram:  What for?

O’Keefe:  He’s only a PC. He came in, fell over coming in, he’s cracked his head open. He’s alive, he’s breathing. He just looks … he just looks funny.

Barram:  Alright

O’Keefe:  Have you seen him?

Barram:  (inaudible)

O’Keefe:  You should go down and have a look he’ll have one hell of a kink in his neck when he wakes up.”

Over the next two hours, the two officers on duty rarely left their desks; only three cell checks were done by Constables O’Keefe and Kershaw. In evidence they admitted being distracted from their duties “by various things, including an iphone, an ipod and the internet.” Not only did Probationary Constables Kershaw and O’Keefe fail to conduct cell checks in accordance with their responsibilities, but they made no record of the few that they did do, in further breach of Custody Manual. Worst of all, the officers failed to respond to the distress calls made by prisoners in Cell 16, who could see and hear that  Kwementyaye was in trouble.

At 11.44pm, prisoner Warren McDonald activated the call button in his cell. It is clear from CCTV footage that around that time, he and fellow prisoners, Anslem Impu and Kyle McDonald, were looking across to Cell 9:

“It is likely that the prisoners in Cell 16 were seeing Kwementyaye in the last moments he was alive and at the last opportunity police had to save his life. I heard from Warren and Kyle McDonald and from Mr Impu that they could hear distressing noises from Cell 9, described by the men as coughing, gasping and choking. A review of CCTV footage shows that the last movement of Kwementyaye’s body was a very slight twitching of his limbs, at 11.42pm, just two minutes before the call button was activated.”

The call rang three times over several minutes. Constable O’Keefe answered the call a few minutes later. Instead of trying to speak to the prisoners over the telephone, or attending to their cell Constable O’Keefe hung up the receiver, because when “he glanced up at the CCTV screen in front of
him and could see that the prisoners in cell 16 were seated back on their
mattresses.” (??)

The prisoners in Cell 16 gave evidence that they also tried to get the attention of police on more than one occasion, by calling out. The report notes that, Officer Kershaw had “shut the door between the corridor and reception area, in order to block out the noise of a prisoner who was at the end of the row of cells where Kwementyaye was housed.”

 

Kwementyaye is not breathing.

When Sen. Sgt Barram returned to the Watch House at 1.30am, he commenced a round of cell checks and at 1.41 am, he noticed that Kwementyaye had not moved from the position he had last seen him in at 11pm. The Watch House Commander moved straight to Cell 9, entered it and found that Kwementyaye was not breathing. He yelled for an ambulance to be called and commenced CPR, but his body was cold. According to the Coroner’s report, “he had probably passed away around two hours earlier.”

 

 

 

Rest in Peace Kwementyaye.

 

 

 

 

†NB: There were no charges laid against any of the police officers involved, nor did they lose their jobs. To be honest, I’m not even sure they were officially disciplined.

†I have written about entrenched, institutionalised racism in Australia previously hereon, e.g. dhuwala.

†The Coroner’s report is available online, here.

†This article offers broader context, re: the issue of Aboriginal deaths in custody in Australia.