Officers tell coroners court how they dealt with the Yorta Yorta woman who died 17 days after falling asleep on a train

Tanya Day inquest: how police responded to questions about the role of racism in her death

Tanya Day died in hospital on 22 December 2017 from a brain haemorrhage caused by a “significant fall” in the cells of Castlemaine police station 17 days earlier.

Her family and supporters filled the coroners court in South Melbourne this week, split down the aisle from police officers and teams of lawyers, to hear the first week of evidence at an inquest into her death.

This is what was said.

What happened?

Day, a 55-year-old Yorta Yorta woman, purchased a V/Line ticket to Melbourne at Echuca train station about midday on 5 December 2017, caught a bus to Bendigo, and then changed to a train to Melbourne.

Tanya Day died 17 days after falling asleep on a train. Now her family want answers Read more

The train conductor, Shaun Irvine, radioed for police after finding Day asleep and once roused unable to respond “meaningfully” to his questions. She was described in the radio calls as “unruly”.

Police met the train at Castlemaine at 3.05pm and took Day off the train. They later wrote her up for being drunk in public. Her blood alcohol level at the station was estimated to be 0.30.

She was taken to the police cells to “sober up” and fell five times in the cell, including a “significant” fall at 4.50pm. The inquest was told police failed to conduct the required cell checks. The ambulance was called at 8pm.

Did racism cause her death?

This is the first inquest in Australia to consider whether systemic racism was a contributing factor to a death in custody.

Counsel for the Day family, Peter Morrissey SC, asked a set of questions of the four police officers involved in Day’s arrest for public drunkenness. Did they treat Day differently because she was Aboriginal? Did they consider the particular vulnerabilities she may have as an Aboriginal woman before placing her in custody?

“No one is suggesting you are a bigot,” he reassured each witness, but is it possible you could have been influenced by unconscious bias?

Snr const Matthew Fitzgibbon said he was aware that unconscious bias could affect they way some people treated others, but “not the way I treat people”.

He had signed on to be a police Aboriginal liaison officer the week before but later decided it was inappropriate, given Day’s death.

Asked if he could explain why, in 2017, Aboriginal women were 10 times more likely to be arrested for the crime of public drunkenness, Fitzgibbon said he “couldn’t give an answer to that”.

The witness box is directly in front of the seats occupied by Day’s children. Under their direct gaze, some witnesses hesitated before answering questions about racism.

After Morrissey’s questioning, Rachel Ellyard, lawyer for police, asked each officer if they would have treated Day differently if she was not an Aboriginal person. All said no.

Tanya Day inquest shown footage taken hour before death in custody Read more

“We try to treat everyone equally but tried to treat her better than equally,” snr const Kristian Hurford said. “She wasn’t your everyday drunk person.”

Two of the police drove another drunk woman home immediately after taking Day off the train. They first let that woman wait, unsupervised, at a hotel. When questioned, they said that woman was less intoxicated than Day and was able to provide an address that was only five minutes from Castlemaine. That woman was not Indigenous.

Sandra Owen, from the Aboriginal Community Justice Partnership, said that in her experience Aboriginal people were discriminated against on public transport. The ACJP is a volunteer network that performs 24/7 welfare checks and justice advocacy work.

Owen said police called her about Day’s arrest and she told them to call back when Day was sober. Police told Owen that Day “did not want to speak with ACJP at that time”.

Owen rejected a suggestion, made by police, that she said she would not help because Day was unknown to her, telling the inquest: “We help everyone.”

The ACJP for the Dja Dja Wurrung area was at that time staffed by three volunteers, and Owens said that picking up a drunk person they did not know personally “put them at risk” because they could not anticipate their behaviour.

Facebook Twitter Pinterest A screen grab from CCTV footage of Tanya Day’s arrest at Castlemaine police station on 5 December 2017. Photograph: Vic Police

Since Day’s death, she said, volunteers have been told to insist on talking to the arrested person directly, regardless of what police say.

Arrest powers and the four-hour rule

None of the four police officers who interacted with Day at the train station, before she was taken to the police station, told her she was under arrest, cautioned her, or told her she would be placed in police cells.

Each said they independently determined that she would be arrested for being drunk in a public place.

Fitzgibbon said the process of arresting someone for being drunk in public had changed from charging and bailing them to issuing an infringement notice. The infringement notice was written up at the station.

Snr const Stephen Thomas said his powers of arrest were the basis for compelling Day to leave the train. Fitzgibbon and Hurford said that arrest was continuing when they took her in the van to the station.

They had the discretion not to take her into custody, but all said they felt, for her own safety, they had no choice.

Hurford told Day’s daughter, Kimberley Watson, that her mother would be held for four hours. That call took place before they left the train station.

All four officers said it was their practice to take an intoxicated person into custody for four hours or until they sobered up. They could not cite the origin of that rule.

“I don’t know if it’s written anywhere,” Fitzgibbon said. “I’ve been in the police force for 13 years and it’s just always been four hours.”

Play Video 1:32 CCTV shows Tanya Day taken into custody before sustaining a fatal brain injury – video

Hurford said Day was held for four hours “as per our procedure with any drunk”.

If they had been able to organise for a friend or relative to collect her, they would have released Day into their custody, they said. Day’s daughters were unable to attend but her son was driving down from Echuca when she was sent to hospital.

Why didn’t police send her to hospital?

The Victoria police manual states that officers must conduct an assessment against a medical checklist when placing someone under arrest, and can transport someone only after undertaking a medical and risk assessment.

The four police involved in Day’s arrest said they were familiar with the guidelines and the medical checklist, which includes the coma scale test.

The coma scale is ranked from one to five. A person who is giving “meaningless, unintelligible” responses is a three and the action specified is “Send to hospital or seek urgent medical advice.”

All four said Day was at some points unintelligible but became more lucid as time went on. They said they did not consider calling an ambulance or seeking medical advice.

What happens next?

The police officers charged with supervising Day in custody are scheduled to give evidence early next week.

Day’s family have argued for all the footage of her in the cells to be released in full, but the coroner is yet to announce her decision.

