In October last year, Jonathon Hunyor, principal solicitor at the North Australian Aboriginal Justice Agency (NAAJA) made a prediction that he hoped would never be realised. He told CAAMA TV in Alice Springs that new NT government laws [the “paperless arrest” regime] effectively allowed police to impose a sentence of four hours without a charge even being laid, noting that the lessons of the Royal Commission into Aboriginal Deaths in Custody were being ignored.

Earlier this month Hunyor’s worst fears were realised. While appearing at a coronial inquest for the family of an Aboriginal man who earlier this year died while in police custody pursuant to that new law he reminded the NT Coroner, Greg Cavanagh, of the following words of Justice Deane in Donaldson v Broomby nearly thirty-five years ago.

Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. The police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. Donaldson v Broomby (1981) A Crim R 160.

Coroner Cavanagh noted that Justice Deane’s words were an “important reminder of the indignity and shame felt by people being arrested.” Noting the occasional necessity of arrest in the criminal justice system he observed that “a civilised society does not object its citizens to that mortification unless there are no other reasonable options open.”

Coroner Cavanagh made these comments in his report on the inquest into the death of Kumunjayi Langdon, a 59 year old Warlpiri man who had travelled 1800 kilometres from his home at Yuendumu for an angioplasty at the Darwin hospital. He never attended for his tests, staying with family in the “long grass” for a week until his death on 21 May 2015. On 15 and 19 May he was taken into police protective custody and each time taken to Darwin hospital and discharged.

On 21 May, following the receipt of intelligence from officers in an unmarked car as part of Operation Ascari, Kumunjayi was arrested again in Spillett Park in central Darwin and taken back to the watch-house. Coroner Cavenagh says of Kumunjayi’s arrest that:

It is relevant to emphasise that before and during his arrest at this public park Kumunjayi was not violent, was not uttering threats and not swearing or being offensive in any way. He continued to be quiet and cooperative at all times during his dealings with the police officers. That is to say there was nothing to indicate he was going to cause “social disorder” in the sense that the Attorney-General used … in his second reading speech. [Kumunjayi] was an old man minding his own business, enjoying the company of family and friends in an early evening of the dry season.

In the second reading speech for the introduction of the Police Administration Amendment Bill on 26 November 2014, the only specific reference by Attorney-General John Elferink to the kind of “social disorder” at which the paperless arrest regime is targeted was:

… in the practical, real world of Mitchell Street when people are standing on street corners with their pants around their ankles blaring out expletives or baring their buttocks to passing cars, expectorating, fornicating, urinating, defecating and doing all the other things they do when they have a skin full of juba juice, we can now say to the police, ‘Go out, lift them, pull them out of circulation’ … That is basically what this power will be for the police: to quickly and efficiently deal with individuals who present themselves as offending generally against the Summary Offences Act.

Coroner Cavanagh said of Mitchell Street that it has:

… a host of pubs and bars extending down Mitchell Street in the Darwin CBD … [that] have al fresco drinking areas that are popular with the non-indigenous locals and tourists, many of whom imbibe large amounts of alcohol.

Coroner Cavanagh was scathing of the street-level ironies arising the paperless arrest regime:

The new laws create a system where a large proportion of the population drinks freely in pubs and taverns using sections of the public footpath that have been fenced off for outdoor drinking. Just one street away, Aboriginal people … are being detained for drinking in a designated public space, even if they are enjoying peaceful quiet time with family and friends. That deprivation of liberty and the differential treatment it results in is unacceptable.

After his arrival at the watch-house just after 6.30 pm, Kumunjayi was processed and placed in a cell. Of that process Coroner Cavanagh says that arresting Kumunjayi was “not the last resort,” there being at least seven options available to police–ranging from taking him to a sobering-up shelter to just “leaving him in peace.”

Notwithstanding those options, Coroner Cavanagh did not criticise the arresting officer, whom he said was a “sincere and conscientious police officer … trying to achieve the goals promoted by the paperless arrest scheme and Operation Ascari.”

The implicit message from the Government and senior police command was that Aboriginal people drinking in designated public places could and should be taken off the streets and detained for up to four hours.

Cavanagh also stressed his extreme gratification at the conduct of police and nursing staff at the Darwin watch-house, noting the:

… enormous improvements that have been made to watch-house procedures since the tragic death of Kwementyaye Briscoe in the Alice Springs watch-house. I was impressed by the professional and courteous way that Kumujayi was dealt with by Police who were captured on CCTV, not knowing that the footage would be viewed by this Court. I witnessed significant improvements in watch-house etiquette, attention to detail, seniority of staffing and the wearing of obvious arm bands identifying key positions … I was impressed by the professional, frank way in which Police witnesses gave evidence in these proceedings and the obvious concern they demonstrated for the task of caring for detainees for whom they assume a duty of care.

Notwithstanding those dramatic and welcome improvements in watch-house procedures, Coroner Cavanagh was told of the increased pressures placed upon watch-house staff since the introduction of the paperless arrest regime. Noting evidence from the Custody Sergeant on duty the night of Kumunjayi’s death that police were “inundated by the usual section 133ABs and protective custodies and were really “under the pump,” Coroner Cavanagh reports that:

It is clear from this and other police evidence that the frenetic pace of the shift on 31 May is not unusual since the paperless arrest scheme came into operation … numbers through the watch-house have “dramatically increased”, but there has been no corresponding increase in watch-house staff.

After noting manifest deficiencies in record-keeping so as to prevent any meaningful statistical evaluation of the effects of the paperless arrest regime, that the Court had heard evidence that at least 95% of those detained in police cells were indigenous and noting that police powers and processes of arrest and detention involve “a serious infringement of personal liberties” tolerable only where absolutely necessary, Coroner Cavanagh noted the differential treatment for those detained under the paperless arrest scheme and “serious criminals” detained under normal police procedures, who are afforded rights to legal representation, a bail application and being bought before a court in a timely manner.

Kumanjayi Langdon, a sick, middle-aged Aboriginal man, was treated like a criminal and incarcerated like a criminal; he died in a police cell which was built to house criminals … he was always likely to die suddenly due to chronic and serious heart disease, but he was entitled to die as a free man.

It is highly unusual, and as Coroner Cavanagh notes, “not appropriate for a judicial officer to criticise laws passed by a democratically elected government”, however in this case he felt “compelled to do so” under his powers contained in the Coroners Act:

Indeed, the breadth of my recommendations power obliges me to do so where, as here, there is so clear a link between the introduction of that law and an increase in the incarceration of Aboriginal people … (the paperless arrest scheme) in my view, perpetuates and entrenches Aboriginal disadvantage … In my view, unless those paperless arrest laws are struck from the Statute books, more and more disadvantaged Aboriginal people are at risk of dying in custody, and unnecessarily so.

Attorney-General John Elferink responded in his usual forthright manner to the criticisms of the paperless arrests regime made by the Coroner.

In comments reported in the Sunday Territorian, the Attorney said that Kumunjayi Langdon “would have died a free man in the gutter” and criticised Coroner Cavanagh for failing to “offer a solution to the underlying problem”, despite the Coroner’s recommendations that the paperless arrest regime be repealed and that an independent expert inquiry be established into responses to alcohol misuse in the NT. Absent any evidence, other than that Kumunjayi travelled to Darwin by bus on a patient travel warrant, the Attorney said that he went on a “taxpayer funded binge.”

Jonathon Hunyor from NAAJA provided The Northern Myth with this response to the Attorney-General’s comments as reported:

The Attorney-General’s insulting personal remarks about the deceased both lack decency and fail to address the substance of the Coroner’s findings.

The Coroner in the Langdon case identified this crucial issue: why was this old Aboriginal man treated like a criminal for nothing more than having a drink in a park? Rather than answer this question, the Attorney-General has chosen to denigrate the deceased.

Kumanjayi Langdon should not have died in custody for the simple reason that he should not have been in custody.

Image: Veeplaas, RightNow.org.au