This month is the 7th anniversary of Mutiny Zine! Mutiny are an anarchist collective based in Sydney. The zine that they produce explores ideas about anarchist thought and practice, as well as different avenues of disobedience and resistance. Mutiny are also closely associated with Jura Books, which is well worth a visit if you ever happen to find yourself in Sydney-town.
The following piece – which is based on a previous post hereon – appears in the latest Issue of Mutiny Zine, # 69. Thank you to the Mutiny crew for the opportunity to share info and stories about Aboriginal Deaths in Custody and institutionalised racism, and congratulations on your 7th anniversary – keeping a radical project alive for this length of time is no small feat.
Imprisonment, Deaths in Custody and the NT Intervention
THE CENTRAL FINDING OF THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY WAS THAT ABORIGINAL PEOPLE DIE IN CUSTODY AT A RATE RELATIVE TO THEIR CUSTODIAL POPULATION. HOWEVER, ‘THE ABORIGINAL POPULATION IS GROSSLY OVER-REPRESENTED IN CUSTODY. TOO MANY ABORIGINAL PEOPLE ARE IN CUSTODY TOO OFTEN.
THE ROYAL COMMISSION FOUND THAT THERE WERE TWO WAYS OF TACKLING THE PROBLEM OF THE DISPROPORTIONATE NUMBER OF ABORIGINAL PEOPLE IN CUSTODY. THE FIRST WAS TO REFORM THE CRIMINAL JUSTICE SYSTEM; THE SECOND APPROACH WAS TO ADDRESS THE PROBLEM OF THE MORE FUNDAMENTAL SOCIAL AND ECONOMIC FACTORS WHICH BRING INDIGENOUS PEOPLE INTO CONTACT WITH THE CRIMINAL JUSTICE SYSTEM – THE UNDERLYING ISSUES RELATING TO OVER-REPRESENTATION. THE COMMISSION ARGUED THAT THE PRINCIPLE OF INDIGENOUS SELF-DETERMINATION MUST UNDERLIE BOTH AREAS OF REFORM. IN PARTICULAR THE RESOLUTION OF ABORIGINAL DISADVANTAGE COULD ONLY BE ACHIEVED THROUGH EMPOWERMENT AND SELF-DETERMINATION.
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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.
Constable Gareth Evans began walking towards the group, wanting “to see if they had any information about an alleged fight at the shops.” [i] When he was half way across the oval, however, one of the young women in the group shouted out to the others and they all began to disperse. Constable Evans called for back-up on his radio and began to pursue the group on foot. He 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.” When Kwementyaye got up, he had a 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.”
After this initial “fall” Kwementyaye got to his feet and allegedly started swearing. Constable Evans then allegedly gave him a direction to “take a step back” which Kwementyaye allegedly ignored. Constable Evans then “pushed him in the chest with an open left hand, causing him to stumble and fall into the gate, before falling forward.” Kwementyaye was then 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. Keep in mind that Kwementyaye was not even suspected of having committed a crime. He was taken into Protective Custody because he was deemed too intoxicated to look after himself.
Upon arrival Kwementyaye was placed in an observation cell with two other men. Approximately thirty minutes later he was ordered to come out from the cell to join four or five other detainees who were being processed in reception. 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. While Kwementyaye was being escorted his legs went out from under him and he fell forward onto the floor.”
Kwementyaye was then dragged by Constable Evans into the reception area where he was left sprawled out on the floor. A number of other detainees were being processed around him. Kwementyaye lay on the floor for several minutes before 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.” CCTV footage shows that Constable Evans left Kwementyaye lying face down on the ground as he walked away.
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IN UNDERSTANDING THE USE OF IMPRISONMENT, CUNNEEN WRITES, ONE OF THE MOST IMPORTANT POINTS TO GRASP IS THAT A RISING IMPRISONMENT RATE IS NOT DIRECTLY OR SIMPLY RELATED TO AN INCREASE IN CRIME. THE USE OF PRISON IS A FUNCTION OF GOVERNMENT: IT REFLECTS GOVERNMENT POLICY AND LEGISLATION, AS WELL AS JUDICIAL DECISION-MAKING. GOVERNMENTS MAKE CHOICES THAT EITHER DIRECTLY IMPACT ON THE USE OF IMPRISONMENT (FOR EXAMPLE, LEGISLATION COVERING SUCH MATTERS AS STANDARD NON-PAROLE PERIODS, MANDATORY SENTENCING, MAXIMUM PENALTIES FOR PARTICULAR OFFENCES, ETC) OR LESS INDIRECTLY (FOR EXAMPLE, AVAILABILITY OF NON-CUSTODIAL SENTENCING OPTIONS, PRESUMPTIONS IN FAVOUR OF BAIL, AVAILABILITY OF PAROLE, ETC). [ii]
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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 Kwementyaye lying on the floor for several minutes while several officers walk around him, concerning themselves with the other things. As he lay there, 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.
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.” Kwementyaye stood up again, but this time, “instead of firmly guiding him again or giving him a stern verbal direction, Constable Evans pushed him hard with an open hand and sent him sprawling backwards into the wall.”
After the push, Kwementyaye “looked upset and picked up a blue plastic property box that was between him and another prisoner. He did so in a 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 and motioned for Kwementyaye to put the box down. Kwementyaye stood up with a clenched fist, although his arm and fist stayed down by his side. 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.”
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THE CRIMINAL JUSTICE SYSTEM CONSTITUTES SOCIAL GROUPS AS THREATS,’ CUNNEEN WRITES, ‘AND REPRODUCES A SOCIETY BUILT ON RACIALISED BOUNDARIES. INDEED IT HAS BEEN ARGUED THAT THE PROCESS OF CRIMINALISATION ITSELF NOW CONSTITUTES A SIGNIFICANT RACIALISING DISCOURSE – THAT IS WE UNDERSTAND RACE THROUGH DISCOURSES ABOUT CRIME AND PUNISHMENT, AND WE UNDERSTAND CRIME AND PUNISHMENT THROUGH IMAGES OF RACE. THE NORTHERN TERRITORY INTERVENTION PROVIDES A PARTICULARLY GRAPHIC EXAMPLE OF THE CONSTRUCTION OF INDIGENOUS MEN IN PARTICULAR AS SEXUAL AND PHYSICAL ABUSERS OF WOMEN AND CHILDREN. SUCH ABUSE WAS ALSO LINKED TO TRADITIONAL ABORIGINAL CULTURE. AN INCREASED CRIMINAL JUSTICE RESPONSE WAS SEEN AS APPROPRIATE TO DEALING WITH THE PERCEIVED PROBLEM AND INDIGENOUS IMPRISONMENT RATES IN THE NORTHERN TERRITORY HAVE CONTINUED TO INCREASE DRAMATICALLY.
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Kwementyaye was then 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 then 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 next was 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 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.
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 Kwementyaye needed immediate medical care. In her own words, this was Prison officer Parker’s response: “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.”
At around 11pm the evening Watch House shift changed over to the overnight shift.
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.’ The officers also failed to respond to the distress calls made by prisoners in Cell 16, who could see and hear that Kwementyaye was in trouble.
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INCREASED POLICE NUMBERS IN ABORIGINAL COMMUNITIES WAS A KEY MEASURE OF THE NORTHERN TERRITORY INTERVENTION (2007). THIS HAS TRANSLATED INTO OVER-POLICING, RACIAL PROFILING AND A SIGNIFICANT INCREASE IN THE LEVEL OF ARRESTS. AS ALTMAN AND HINKSON NOTE OF CENTRAL AUSTRALIA, ‘MANY ARE FOR VEHICLE RELATED OFFENCES. MANY OTHERS RESULT FROM ANOTHER OF THE INTERVENTION’S MEASURES—THE OUTLAWING OF CUSTOMARY LAW, ESPECIALLY THE USE OF PAYBACK TO SETTLE DISPUTES. WHEN ABORIGINAL PEOPLE ATTEMPT TO USE THEIR OWN CUSTOMARY MEASURES TO RESOLVE SIGNIFICANT TRANSGRESSIONS, POLICE WHO ONCE TURNED A BLIND EYE ARE NOW LEGALLY OBLIGED NOT TO DO SO. [iii]’
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At 11.44pm, prisoner Warren McDonald activated the call button in his cell. It is clear from CCTV footage that he and other prisoners were looking across to Kwementyaye in Cell 9. The Coroner writes that, “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, however, he 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 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.”
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.”
In October 2012 Deputy Chief Minister Robyn Lambley ruled out taking disciplinary action against any of the Police officers involved. This is the story of so many Aboriginal Deaths in Custody. All the facts and figures in the world cannot account for this level of institutionalised racism. There is nothing post- about colonialism in Australia.
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ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE COMPRISE 2.5% OF THE TOTAL POPULATION IN AUSTRALIA, & YET THEY COMPRISE 26% OF THE TOTAL PRISON POPULATION.
ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE COMPRISE 32% OF THE TOTAL POPULATION IN THE NORTHERN TERRITORY, & YET THEY COMPRISE 82% OF THE NT PRISON POPULATION.
THE IMPRISONMENT RATE OF ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE HAS RISEN 46% IN THE NORTHERN TERRITORY IN THE PAST DECADE & CONTINUES TO RISE. [iv]
REST IN PEACE KWEMENTYAYE BRISCOE & ALL WHO HAVE DIED AT THE HANDS OF POLICE WHILE IN CUSTODY.
[ii] Chris Cunneen (2011)
[iii] Jon Altman & Melinda Hinkson (2012)
[iv] Bureau of Statistics (2011)