The inquest into Day’s death, beginning on Monday, will be the first to examine whether systemic racism contributed to death in police custody

Before Tanya Day sustained a fatal injury while in police custody, she fell asleep on a train.

The Yorta Yorta woman, 55, was catching the V/Line service from Echuca to Melbourne on 5 December 2017 to see her family. Day had been drinking. Just past Bendigo, about two hours into her journey, she started to nod off. By Castlemaine she was asleep, her legs allegedly blocking the aisle.

As the train pulled in to Castlemaine, the conductor told her to move. He had called the police to request help with an “unruly” drunk passenger who could not find her ticket.

The police arrived at 3.10pm and shook Day awake. They decided to arrest her and take her to the police station under an archaic but well-used offence: being found drunk in a public place. Shortly after 8pm, when police would have been preparing to release Day from custody after a four-hour spell to sober up, they realised something was wrong. An ambulance was called, but did not arrive for almost an hour.

Indigenous deaths in custody worsen in year of tracking by Deaths Inside project Read more

By the time Day arrived at Bendigo hospital she had been bleeding in her brain for almost five hours as a result of a traumatic injury sustained when she fell, unnoticed, in the cell. A large black bruise covered her forehead.

She did not wake between then and 22 December, when she died in Melbourne’s St Vincent’s hospital.

A three-week inquest into her death in custody will begin in Melbourne on Monday. The coroner, Caitlin English, has already made two significant findings.

The first was that Victoria should abolish the offence of being drunk in public. On Thursday the Andrews government announced it would do so, and set up an expert panel to consider options.

The second was unprecedented: that the inquest would consider whether systemic racism contributed to her death.

Day’s daughter Apryl Watson, 27, says it did. Day’s children – Watson, and her sister Belinda Stevens, 38, their brother Warren Stevens, 37, and youngest sister Kimberly Watson, 22 – have been leading the campaign to get justice for their mother.

“You see plenty of times on V/Line [that] people are on the train intoxicated, or they are asleep, [or] are actually making a scene, and they are unruly, and they are being aggressive, but the police do not get called,” Watson says. “And here’s mum, an Aboriginal woman asleep on the train, and she’s deemed unruly? That speaks volumes to us.”

An outdated law

Victoria and Queensland are the only states in Australia where being drunk in public is still a crime, pending the new Andrews government legislation.

Stevens says abolishing the offence is not enough. There must be systemic change to reframe intoxication as a health issue so police do not get involved.

“It’s all good and well to say we’ll remove this law but they can’t then introduce something that will target vulnerable people again,” she says. She cites Western Australia, which no longer has a crime of public drunkenness but does have a crime of drinking in public. Three Indigenous people have died after being arrested while drunk in WA since 2008.

“We are after systemic change and we want a health-based approach and response to the removal of that law,” she says.

The Crime Statistics Agency of Victoria says 6,424 people were charged under section 13 of the Summary Offences Act in the 12 months to March this year, more than six times the number of people charged with being drunk and disorderly in public. It is a 40% decrease from the average annual number of public drunkenness charges issued in the past decade.

The maximum penalty is a $1,321 fine but most are issued with an infringement notice which sets the penalty at half the maximum fine if paid within 28 days.

That is not always possible. Harrison Day, Tanya Day’s uncle, died in police custody in Echuca in 1982 after being arrested for a $10 unpaid fine for a charge of being drunk and disorderly.

An analysis by the Human Rights Law Centre, which is representing Day’s family at the inquest, found that in 2017 Aboriginal women were 10 times more likely to be charged for being drunk in public.

The other high-risk group are people who are homeless or sleeping rough.

Indigenous people continue to die in custody in jurisdictions without public drunkenness laws but where detention remains an acceptable policy response.

Cases in Guardian Australia’s Deaths Inside investigation include the death of a 24-year-old Aboriginal man who was charged with assault and, like Day, died of a brain hemorrhage that worsened while he was left to sleep off the drink in a cell in Broome police station; a 51-year-old man who died in the Kalgoorlie police cells; and Ms Mandijarra, who died in Broome police station in 2012 after being arrested for drinking in public.

In the Northern Territory, Kwementyaye Briscoe died in the Alice Springs police station in 2012 after being placed in “protective custody” because he was drunk. Three years later, a Tiwi Island woman died on the footpath outside the Nightcliff sobering-up centre in Darwin. The police who took her to the centre did not check their own records which showed she had a high-risk heart condition.

In NSW, Wiradjuri woman Rebecca Maher died in Maitland police station in 2016 after being placed in protective custody under part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002, which states that an intoxicated person can be held by police if they are given a reasonable opportunity to contact a responsible person to come collect them. Maher was deemed too intoxicated to nominate a responsible person.

Victoria police did attempt to contact one of Day’s daughters to collect her but they were unable to get to Castlemaine.

Deaths inside: every Indigenous death in custody since 2008 tracked – interactive Read more

Stevens says that if Day had been taken to hospital she would “100% be alive today”.

“It’s clear to us that from the moment that she had the first interaction with V/Line, the fact that she was an Aboriginal woman and had been drinking were the two main factors that led to the decision making,” she says. “If she was that intoxicated, and you were concerned about her wellbeing, why wasn’t she ever [given a health assessment]?”

Facebook Twitter Pinterest Yorta Yorta woman Tanya Day, with her daughter Apryl Watson. Photograph: Supplied by family

It was easier, says Stevens, for authorities to dismiss Day as another drunk Aboriginal woman and make her the scapegoat in her own story. The real Tanya Day, she says, was a woman who was born on Moonacullah mission, who cooked for everyone in Naidoc week, who wore high heels to her granddaughter’s birthday party, and who was so moved by the death in custody of Tane Chatfield that she began fundraising for a family she had never met.

Stevens blames that narrow focus for one of the biggest issues in the upcoming inquest: the missing CCTV.

‘Pieces we will never know’

Shortly after Day was airlifted to hospital, when it became clear she might not wake, Victoria police began an internal investigation. Detective senior constable Scott Riley, an investigator from the coronial support unit, requested copies of all the CCTV tapes that showed Day in the station as well as some showing the corridor outside the cell on the occasions when police walked to the cell to check on her through the door. He did not request CCTV of the charge room, where the custody officer on duty would watch a live feed from the cells, and therefore that footage will not be available in the inquest.

The footage from the cell shows Day hit her head a number of times. At 4.20pm she hit the back of her head on the wall. At 4.44pm she stumbled. At 4.50pm she hit her forehead on the wall. In a summary of evidence read at a directions hearing in court last December, the counsel assisting the coroner described it as “a significant impact”. It is this impact that is believed to have caused the fatal haemorrhage.

Without footage from the charge room, it is not possible to independently verify what police were doing when these impacts occurred. It is apparent they did not see them on CCTV. When Day was taken to hospital, no mention was made of the significant impact at 4.50pm. If it had been, doctors might have been able to diagnose the bleed more quickly.

Day’s family, through their lawyers, have raised concerns about the adequacy of the investigation and the independence of the police investigator.

“I’d feel a lot more confident if there wasn’t a police officer investigating my mum’s death and if that police officer had actually obtained all the footage, which hasn’t happened,” Watson says. “There are pieces of the truth that we will never know.”

The issue of police investigating police was addressed at the 1989 royal commission into Aboriginal deaths in custody and at every coronial inquest since.

“I would love us to be the last family to have to deal with this,” Stevens says. “But let’s be honest. The system hasn’t changed in 30-odd years. It’s not going to change overnight, but we want to do our best.”

The legal director of the Human Rights Law Centre, Ruth Barson, says racism and police independence remain at the heart of the case.

“Police should not be investigating other police particularly when, as in this case, it involves a person dying in police custody,” Barson says. “It is absolutely critical that coronial investigations both are and are seen to be independent.”

Barson says the coroner’s decision to consider systemic racism as a factor in the case was “incredibly significant”.

“Rather than ignoring the fact that Tanya Day was an Aboriginal woman, the coroner’s court will squarely ask whether Tanya was treated differently and worse because of her Aboriginality,” Barson says.

Day’s children are doubtful the inquest will effect real change, but they are determined to fight.

They know the coroner can make recommendations but cannot change the law.

“No one is going to lose their job, no one is going to get demoted,” Watson says. “We don’t have a mum, and they are not even going to be fired for her losing her life.”