Coronial inquest into the death of Tanya Day – Apr 2020

The coronial inquest into the death of Yorta Yorta woman Tanya Day broke new ground as the first inquest to consider whether systemic racism contributed to the cause and circumstances of a death. The Coroner did this by interpreting her fact-finding function consistently with the rights to life and to equality in the Charter. She found that in order to discharge her duty to conduct a comprehensive, thorough, effective investigation, she would assess the evidence in this inquest through the lens of systemic racism.

This inquest demonstrates how Charter rights inform the content of a coronial process, including the Coroner’s decision on the scope of an inquest.

It also highlights the urgent need for all public authorities, whether they’re police, transport providers or hospitals, to provide culturally safe and trauma-informed care for Aboriginal people.

On 5 December 2017, Aboriginal woman Tanya Day was removed from a V/Line train and arrested for public drunkenness, an offence that has been abolished in most Australian states because of its discriminatory impact on Aboriginal and Torres Strait Islander people.

Tanya was taken into police custody, where she hit her head multiple times in the holding cell. The most significant fall resulted in a brain haemorrhage. Tanya was eventually transferred to hospital and underwent surgery but did not regain consciousness. She died in hospital on 22 December 2017.

Scope of inquest included consideration of systemic racism

Before the inquest, Tanya’s family requested that the Coroner consider whether systemic racism contributed to her death.

The Commission intervened, submitting that the Coroners Court is bound to act compatibly with the right to equality and the right to life, and to do so in this case it should investigate whether systemic racism was a cause or circumstance of Tanya’s death.

The Commission argued that as a public authority, the Coroner’s Court is bound by s 38(1) of the Charter to act compatibly with human rights and to consider human rights when making decisions. In order to give effect to the right to life in s 9 of the Charter, the coronial process must ensure a comprehensive, thorough, effective investigation into Tanya’s death. The Court should also interpret its fact-finding function, to determine “the circumstances in which the death occurred” (in s 67 of the Coroners Act), consistently with the requirement for an effective investigation, in this case by investigating whether systemic racism was a cause or circumstance of Tanya’s death. An effective investigation compatible with the right to life under the Charter must scrutinise not only the immediate causes of Tanya’s death but also the broader systemic causes at play.

On 25 July 2019, the Coroner accepted the Commission’s submissions, ruling that she would consider whether systemic racism played a part in Tanya’s death and, if necessary, make broader recommendations about how to address it. It was the first time the Victorian Coroner’s Court has ruled that all the evidence before it would be scrutinised through the lens of systemic racism. The inclusion of systemic racism in the scope of the coronial process is an important reminder for public authorities to interrogate their practices and ensure they are fulfilling their obligations under the Charter.

The Coroner also agreed to consider at the inquest whether Charter obligations were complied with, the extent to which Tanya’s Charter rights were engaged and if they were infringed.

Shining a light on the offence of public drunkenness

At the time Tanya died, Aboriginal women were 10 times more likely to be arrested for being drunk in public than non-Aboriginal women. Before the inquest began, Coroner English said she would be recommending that the offence of public drunkenness be abolished. In August 2019, just days before the start of the inquest, the Victorian government announced a plan to abolish this offence and replace it with a health-based approach that will promote therapeutic and culturally safe pathways to assist alcohol-affected people in public places.

The Coroner’s landmark findings

The coronial inquest ran over two weeks during August 2019. At the inquest, the Commission made submissions on the scope of human rights relevant to Tanya’s treatment, including her right to freedom of movement in s 12, the right to liberty in s 21 and the right to humane treatment when deprived of liberty in s 22(1) of the Charter.

On Thursday 9 April 2020, the Coroner made landmark findings, including that:

• The V/Line officer’s treatment of Tanya was influenced by her Aboriginality and affected by unconscious bias. The V/Line officer considered Tanya to be “unruly” despite her being asleep and it took him less than a minute to call for police. The Coroner confirmed that Tanya’s right to freedom of movement, protected under the Charter, was engaged by the V/Line officer’s decision to call for police.

• The police did not adequately check on Tanya in her cell, as required by their own Victoria Police Manual guidelines and standard operating procedures. The police officers did not treat Tanya humanely or with dignity in the cell as required under the Charter.
• The Coroner did not go so far as to find that the actions of Victoria Police were influenced by systemic racism but detailed a “culture of complacency regarding intoxicated detainees”. The Coroner concluded that the police officers “thought at all times they were looking at Ms Day as a conscious, breathing drunk doing what all drunks do. This illustrates the power of stereotype and its resistance to correction”.

• The Coroner referred two police officers to the Director of Public Prosecution for criminal investigation. This is significant, as no police officer has ever been held criminally responsible for an Aboriginal death in custody.
• In the Coroner’s ruling, she noted that many of the recommendations from the Royal Commission into Aboriginal Deaths in Custody more than 30 years ago were relevant to this inquest, providing a framework for relevant standards and a template of best practice in areas such as custodial health and safety. The Coroner also reflected on the fact that, tragically, Tanya was the second member of her family to have died in police custody. The death of her uncle, Harrison Day, in police custody in Echuca on 23 June 1982 was the subject of an investigation by Commissioner Wooten.

The Coroner made several important recommendations.

To the Attorney-General

• That the public drunkenness offence be repealed
• That the Coroners Act be amended so the Coroner in charge of the coronial investigation may give a police officer direction about an investigation

To Victoria Police

• Include a falls risk assessment as part of the detainee risk assessment in custody who anyone who appears to be affected by alcohol, drugs or illness
• Review training and education about the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody to ensure knowledge and compliance
• That training be implemented on rules, guidelines and operating procedures regarding the mandatory requirements applicable for the safe management of people in custody
• That training be implemented regarding medical risks of people affected by alcohol
• Request the Victorian Equal Opportunity and Human Rights Commission to conduct a s 41(c) review of the compatibility of its training materials with human rights set out in the Charter

To V/Line

• Review training materials to include input from the Aboriginal community about unconscious bias to train staff about how to remove unconscious bias in decision-making
• Request the Victorian Equal Opportunity and Human Rights Commission to conduct a s 41(c) review of the compatibility of its training materials with human rights set out in the Charter

To the Department of Justice and Community Safety

• Review the current volunteer model for the Aboriginal Community Justice Panel as its effectiveness in providing protection for Aboriginal people in custody