Indigenous Australians Keep Dying in Police Custody

WARNING: Aboriginal and Torres Strait Islander readers are advised that the following article contains names, images and descriptions of people who have died. Some people’s full names have not been used for cultural reasons and out of respect for their families. Honorifics have been used in certain cases for the same reason.

Ms Wynne lost consciousness for the last time while lying flat on her stomach. It was the morning of April 4, 2019. A police sergeant’s knee was pressed against her back.

Officers first approached the 26-year-old, Noongar-Yamatji mother of three earlier that morning, after they spotted her walking along the roadside in East Victoria Park, Perth. During an inquest into her death last month, one of them told a court that they suspected she had committed, or was about to commit, a crime. What they didn’t know was that Ms Wynne, who had a history of severe mental illness and traces of methamphetamine in her system, had escaped from a mental health facility just over a week earlier. When the patrol car pulled up alongside her, she ran.

“She was afraid,” Ms Wynne’s paternal grandmother, Jenny Clayton, tells VICE World News. “Because the stigma that comes a lot with Aboriginal people is when they see a police officer, they’re frightened that they’re going to arrest them for nothing.”

According to Clayton and various news reports, police pursued Ms Wynne and found her inside her mother’s apartment, whereupon they handcuffed her and forced her to the floor. She urinated on herself and started to have what her mother would later describe as an anxiety attack. It wasn’t until they’d interviewed her, confirmed her identity and ran a background check that officers removed the handcuffs and released her. Briefly.

Later that morning, Ms Wynne was picked up again in a nearby street after reports that she had self-harmed and was experiencing a severe mental health episode. She was put into an ambulance, where she became agitated and eventually absconded, slipping out through the vehicle’s front door. Police gave chase. They grabbed her, took her to the roadside and wrestled her down into what’s known in police training as the prone restraint position – flat on her stomach.

WA Police Force Sgt. Jace Williams, who weighed 115 kilograms at the time, said he placed his leg across both Ms Wynne’s shoulder blades while other officers cuffed her hands behind her back. He continued holding his leg there for up to two minutes. By the time officers finally stood her up, Ms Wynne’s eyes were rolled back, her lips were blue, and foam was collecting around the corners of her mouth. She’d suffered a cardiac arrest. Paramedics arrived, performed CPR and took her to Royal Perth hospital, where she was placed on life support and put into an induced coma. 

“She had brain damage because of lack of oxygen to her brain for too long,” Clayton explains. “Not once did [the police officers] consider checking whether my granddaughter was breathing.”

Ms Wynne died five days later. It was the second time Clayton had to turn off a family member’s life support after they’d had an encounter with police.

“My granddaughter hadn’t committed a crime, yet she was treated as a criminal,” she says. “She must have been so terrified, and was running for her life, seeking help and support, which she didn’t get from anybody. Thoughts might’ve flashed through her mind: ‘They’re going to catch me and they’re going to do the same thing they did to my father 20 years ago.’”

Ms Wynne’s father, Warren Cooper, died in 1999 after being found unresponsive in a police watch-house in Albany. Like Ms Wynne, Cooper was just 26 years old. But the father and daughter also fit into a much larger trend. They are two of at least 474 Indigenous Australians to have died while interacting with authorities, or as the result of that interaction, in the past 30 years, since the handing down of the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC).

That’s close to 500 deaths for which no one has ever been criminally charged.

“We need to have change,” says Clayton. “We’ve got to stop the cops from killing our Aboriginal people. And I feel for all those Aboriginal people who have lost their loved ones too – for different reasons, but similar situations: all by police involvement.”

“And you wonder why Aboriginal people don’t like people in uniform.”

Indigenous Australians are the most incarcerated people on Earth. Despite representing just over 3 percent of the national population, they make up about 29 percent of the Australian prison population and 18 percent of all deaths in custody.

The causal factors for this are myriad – dispossession, systemic inequality, economic disadvantage, intergenerational trauma – and so, too, are the culprits. Police blame the prisons; prisons blame police; members of the public blame politicians; and politicians blame a decades-old social crisis they inherited; a gap that needs to be closed; reconciliation that needs to be achieved.

It’s a murky issue, and the waters are only muddied further by the eagerness of all parties to avoid accountability, while the incarceration rate continues to rise. What’s clear, though, is that Indigenous Australians are at least six times more likely to die in police custody than their non-Indigenous counterparts. 

Part of the reason is that they’re significantly more likely to end up in custody in the first place. Mark Speakman, state attorney general of New South Wales, told VICE World News that socioeconomic factors – a lack of education, housing and economic opportunity, and generational trauma and mental health issues – contribute to a higher rate of offending in Indigenous communities, and in turn a higher rate of arrests and incarceration. Which is true: Indigenous Australians fall far behind the rest of the Australian population with regards to standard of living, and many individuals break the law as a way of counteracting systemic disadvantage. 

But placing the blame on social inequality, and suggesting that high rates of incarceration are the direct result of high crime, doesn’t account for the fact that police in certain states have been found to systematically target Indigenous children at 18 times the rate of non-Indigenous children. Nor does it explain why Indigenous people are twice as likely to be given a prison sentence than non-Indigenous people when facing court for similar offences. They are also more likely to be charged for relatively minor offences, like cannabis possession or riding a bike without a helmet. 

“Australian policing is racism par excellence. A textbook exemplar of racist policing.”

In 2014, 22-year-old Yamatji woman Ms Dhu was arrested over unpaid fines and died in custody following “unprofessional and inhumane” treatment by WA police. In 2017, 55-year-old Yorta Yorta woman Tanya Day was arrested for being drunk in public and died after falling and hitting her head against the wall of a police holding cell – a death that the coroner said “was clearly preventable had she not been arrested and taken into custody.” And in 2019, 37-year-old Yorta Yorta woman Veronica Marie Nelson Walker was arrested for shoplifting, denied bail, and remanded at a maximum security women’s prison. She was found dead in her cell less than two days later.

As Wayne Martin AC, former chief justice of WA, pointed out in a 2015 speech to the state Law Society: “Over-representation amongst those who commit crime is … plainly not the entire cause of over-representation of Aboriginal people. The system itself must take part of the blame.”

Such systemic disadvantage goes far deeper than the thin blue line. The entire legal apparatus is stacked against Indigenous Australians, and courts, juries and legislators have all contributed to the crisis. But nowhere is the power imbalance more acute than in the relationship between Indigenous Australians and their entry point to the judicial system: the police. 

This isn’t a recent phenomenon. Racist, hard-fisted policing is baked into the origins of the Australian settler state, a Commonwealth nation that was forged as both a penal colony and a link in the long iron chain of British imperialism. In the early days of colonisation, before federation, mounted police – often Indigenous troopers under the command of a single white officer – were sent to the frontier to conduct punitive missions against resisting local Aboriginal groups and entrench the authority of white settlers. Violent oppression of Indigenous Australians by police is older than the nation of Australia itself. 

“We haven’t had a Derek Chauvin moment here. There have been plenty of cases, but no public display of one police officer ever being held accountable. Ever.”

But according to Dr Amanda Porter, senior fellow of Indigenous Programs at Melbourne Law School, things are getting worse. Over the course of several conversations with VICE World News, Porter says that in her view, Australia’s police institutions are the world’s worst in terms of racial profiling, overpolicing and brutality.

“Australian policing is racism par excellence,” she says. “A textbook exemplar of racist policing.”

This, Porter claims, is one of several reasons why Indigenous Australians are still ending up behind bars and dying in custody at such a disturbing rate.

“Because Black, Indigenous and poor people always bear the brunt of populist law-and-order policy and draconian laws. Because Indigenous people are targeted through police operations and strategies. 

“Because,” she adds, “we haven’t had a Derek Chauvin moment here. There have been plenty of cases, but no public display of one police officer ever being held accountable. Ever.”

Australian history is blotted with what might be called “George Floyd moments.” Floyd, a Black American, died on May 25, 2020 while lying face down in the street with a Minneapolis police officer’s knee pressed to his neck, in an incident that inflamed the Black Lives Matter movement and triggered a series of mass protests against police brutality around the world. By that time, many Australians had already heard about the case of David Dungay Jr, who died after yelling “I can’t breathe” while prison officers knelt on his back; the case of Mulrunji Doomadgee, who was fatally bashed in a police cell to such a degree that his injuries were compared to those of plane crash victims; or the case of Ms Wynne, who died following what her family believe was an instance of racial profiling and mistaken identity.

And yet, in the 120 years since Australian federation, there hasn’t been a single Australian equivalent for Chauvin, who was found guilty of Floyd’s murder on April 20, 2021. No Australian police officer has ever been criminally convicted over an Indigenous death in custody.

Police seem unwilling to say why that is, or even discuss the matter. VICE World News approached the police jurisdictions from each of Australia’s eight states and territories, and none answered the question of whether a police officer had ever been disciplined, in any way, in relation to an Aboriginal or Torres Strait Islander person dying in their custody. Most responded by outlining their commitment to keeping Indigenous Australians out of the criminal justice system, or avoided the question altogether.

“There are various societal reasons separate to policing which contribute to the high incarceration rates of First Nations persons in the community,” said a spokesperson for Queensland Police Service. “The QPS has a range of community programs dedicated towards crime prevention, early intervention and diverting First Nations people away from the criminal justice system.”

NSW Police emphasised a similar point, saying in an email: “The answer to reducing the levels of Aboriginal people in custody lies less in the criminal justice system than in the conditions of life that result in Aboriginal people being incarcerated for serious criminal offences. The NSW Police Force is heavily involved in working with Aboriginal communities throughout NSW to improve quality of life.”

“Researchers have observed,” they added, “that systemic racism is not part of the criminal justice system or the NSW Police Force.” VICE World News asked to see this research but did not receive it and instead received a reply saying it was “ongoing.”

Perhaps the closest Australia has ever come to a “Derek Chauvin moment” was last week, as a WA police officer faced court over the alleged murder of a 29-year-old Yamatji woman, known for cultural reasons only by her initials JC. The first-class constable, whose name has been suppressed, shot JC dead in a suburban street of Geraldton, 420 kilometres north of Perth, on September 17, 2019. The young mother of one was known to have mental health issues, and was approached by police after she was seen in the area carrying a large knife, according to news reports. The court heard that JC ignored requests by the officers to drop the knife, as well as a pair of scissors, and the accused shot her in the abdomen from close range in what prosecutors claimed was an unlawful and “wholly unnecessary” use of force. She was taken to hospital and died from internal bleeding shortly thereafter.

By the time the constable faced the WA Supreme Court earlier this month, his trial was already a historic event: he was the first police officer in the state in almost 100 years to be charged with murder in the line of duty. By the time the trial concluded on Friday, however, it hadn’t turned out to be as historic as many had hoped. After a little more than three hours of deliberation, the jury found the accused not guilty of both murder and manslaughter.

Devastated by the verdict, members of Geraldton’s Indigenous community took to the streets in protest.

“How long is this going to go on for? The next 20 years? It’ll go on forever,” JC’s sister told the media after the verdict was handed down. Standing on the steps of Perth’s Supreme Court, she echoed the words of Clayton: “You wonder why Aboriginal people are so angry and disillusioned with the police and the system. We have laws for white and laws for Black.”

JC’s death at the hands of police isn’t the only one to be compared to the case of Floyd and Chauvin in recent months. In the Northern Territory, another police officer is currently waiting to face court over the shooting death of 18-year-old Yuendumu man Kumanjayi Walker, in what has been described as perhaps the most significant murder trial in Australia this century. 

Zachary Rolfe, 30, shot Walker dead in a bedroom of his family home on November 9, 2019. The teenager had breached his suspended sentence just over a week earlier, allegedly removing his electronic monitoring bracelet before returning to Yuendumu, a remote community some 300 kilometres northwest of Alice Springs. When police officers went to arrest him on November 6, he allegedly armed himself with a small axe, threatened them and fled. Rolfe and his colleagues found him at his family home three days later. From there, things quickly escalated.

These are the assumed facts, as told to a Northern Territory court. Rolfe fired three shots at close range after Walker stabbed him in the shoulder with scissors. The second shot was fired 2.6 seconds after the first, the third was fired 0.53 seconds after the second, and both the second and third shot were fired at a distance of no more than 5 centimetres from Walker. Walker was handcuffed a minute after being shot, and then taken to the community police station, where he died. Six days later, Rolfe was charged with murder, granted bail and suspended with pay.

“It’s really hard to convict a cop on civil or criminal charges.”

In the two years since, Walker’s death, like JC’s, has become a symbol for countless other families, communities and activists who are advocating for change. It has fomented the #JusticeForWalker movement, which rallies not just against the arrest and alleged murder of this one man, but Indigenous incarceration rates and custodial deaths in general. Meanwhile, from the other side of the line, the case has spurred a different hashtag in support of cops on duty: #BlueLivesMatter.

For both sides, the stakes are high. Rolfe has pleaded not guilty, and if he’s acquitted, Walker’s family and the community at large will be left without closure over yet another Indigenous death in custody. On the other hand, one person with deep connections through the NT’s central desert region has told the Sydney Morning Herald that “If he’s convicted, the police force is f—–.”

As usual, the system may be predictably stacked in favour of the police. After all, as Dr Porter put it to VICE World News, “It’s really hard to convict a cop on civil or criminal charges.”

One “big, underreported and underacknowledged” reason for this is what she describes as the “insidious” influence of police unions – the organisations that represent the rights and interests of police officers throughout Australia’s states and territories, and are stridently committed to protecting officers from criminal convictions.

“Since the time of the establishment of the RCIADIC in 1987 the police union has been involved in efforts to define certain Aboriginal deaths in custody as beyond the scope of inquiry,” says Porter, pointing by way of example to the 1989 death of David Gundy, who was shot dead by NSW Police Force’s Special Weapons and Operations Section during an unlawful raid of his family home in Marrickville, Sydney.

“The reason the union is a significant player, apart from lobbying for the expansion of police powers and resources during populist law and order crises, is because they’re the body that pay for the very best legal defence that money can buy and actually are there to in any way suppress and look out for police officers who have been implicated in these deaths in custody,” she explains. “That’s a history as old as the police union itself … We’re talking about a whole industry here of just operating to make sure that no police officer is ever held accountable for any death in custody. And that’s the crux of the issue.”

It remains to be seen where the hammer will fall: whether the court’s final verdict will further cement the status quo, or crack it. Rolfe’s trial has been delayed, following a series of postponements, and may not even commence until some time next year. Until then, families, communities and the Australian nation will have to wait a little longer to hear the final verdict. In Porter’s words: “Only time will tell.”

Across state lines, in the Western Australian coroner’s court, Clayton has witnessed firsthand what she feels is the Australian police’s inclination to serve and protect themselves.

“They’re sticking up for each other,” she says. “I mean, no matter how much you try, the police look after their own. When there’s an internal affairs investigation, the police conduct that; they interview their police officers, they take their statements. That needs to be changed.”

“Why can’t we see a situation where there’s some independent investigation into a death in custody and not the system looking after itself?”

Clayton’s lawyer, George Newhouse, told VICE World News that one of the major community objections to the current system is precisely this: the fact that, problematically, it is self-regulating, that police always end up investigating police.

“[Indigenous Australians] don’t trust the system. Why would you? Look at the results that you get,” he said. “Why can’t we see a situation where there’s some independent investigation into a death in custody and not the system looking after itself? 

“The sooner governments around Australia bring in an independent, First Nations–led investigation into Black deaths in custody,” he added, “the sooner you might be seeing justice and profound recommendations that will change lives forever.”

There are other changes Clayton wants to see. For a start, she wants the prone restraint abolished, “so that our people are not dying because of asphyxiation.” In the ten years from 2008 to 2018, the controversial restraint technique was implicated in the deaths of at least 24 people in Australia – more than half of whom were Indigenous, affected by methamphetamines, or struggling with mental health problems. 

“It is dangerous,” said Newhouse. “It should be banned.”

Sergeant Williams, however, told the court he acted in accordance with WA Police training when restraining Ms Wynne, and does not believe his actions contributed to her death. If he found himself in the same situation today, he added, he would not act any differently.

Clayton also wants the CCTV footage of Ms Wynne’s arrest and restraint – a “vital piece of evidence” – released to the media and the public, so that they can see for themselves the “excessive force” that she believes caused her granddaughter’s death. The coroner, who is expected to deliver his findings in the next few months, has thus far declined that request.

“Aboriginal people have been dying like this for years … Nothing’s changed.”

Newhouse told VICE World News that “Quite frankly, the coroner’s reasons for refusing release are a mystery to us and the family of Ms Wynne. We don’t understand the coroner’s refusal to release the CCTV footage when the family of Ms Wynne has specifically asked for the CCTV footage to be released.”

Finally, Clayton wants Sgt. Williams to be fined, sacked and potentially face criminal charges. More broadly, though, she wants to see significant reform within Australia’s police culture; an overhaul that addresses any influence of institutional racism and aims at preventing officers from targeting, overpolicing and killing Aboriginal and Torres Strait Islander people. 

“It’s their brutality. When they arrest our people, it’s the brutality and the force they do it with,” she says. “I find that a lot of policemen are prejudiced against Aboriginal people. Don’t get me wrong: There are a lot that are good police officers … [But] it’s racial profiling. We’re all painted with the same brush.”

Clayton does hold some hope for retribution. That’s what she says “keeps her alive.” But it is only a sliver of hope.

“Aboriginal people have been dying like this for years. I mean, since the Royal Commission into deaths in custody, nothing’s changed. After this happened to my son Warren, they put all these recommendations down – well, they’re all still sitting on paper and haven’t been acted upon. And now what? The coroner is going to put recommendations down for my granddaughter? Nothing’s changed.”

On September 17, the final day of the coronial inquest, some 40 demonstrators lay face-down on the road outside Perth Central Law Courts, imitating the prone position in which Ms Wynne lost consciousness for the last time: flat on their stomachs, hands behind their backs. Among them was Ms Wynne’s daughter.

As a teenager, Ms Wynne attended rallies calling for action on deaths in custody following the passing of her own father. Now it’s her face on the placards, her name on the flags, her blood on the hands of a system that failed her and so many others. 

Later that day, wearing a T-shirt collaged with photos of Ms Wynne and lofting a sign that read “Mummy Deena my Angel,” a 4-year-old girl who has now lost both her mother and grandfather to police brutality leant her quiet voice to a rousing chorus.

“What do we want?” she yelled. “Jus-tice.”

CORRECTION: This article previously stated that Ms Wynne was held down on the roadside in Albany, Western Australia, less than a week after escaping from a mental health facility. She was in fact held down on the side of the Albany Highway in Perth just over a week after escaping from a mental health facility. We regret the error.

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