24 May 2019

Yorta Yorta woman Ms Day died in hospital on 22 December 2017. Around 3pm on 5 December 2017, she was arrested for allegedly being intoxicated on a train in Castlemaine, Victoria. There is conflicting evidence about the charge. The conductor said Ms Day was unruly, and called police, further alleging she did not have a ticket. The Guardian reported that Ms Day did have a ticket. Other witnesses said Ms Day did not appear intoxicated, though CCTV suggested Ms Day was slightly unsteady on her feet.

Ms Day was arrested and taken into custody. She was charged with public drunkenness, and given four hours in custody to sober up. In her cell, Ms Day fell and hit her head at least four times between 3:56pm and 4:50pm. Though police were obliged to check on her every 30 minutes under their own guidelines, they failed to do so. Ms Day’s condition deteriorated, and she was not checked on until 8:03pm. After they finally did so, the police called an ambulance which took Ms Day to hospital. She died about 17 days later from significant bleeding on her brain.

The coroner’s preliminary finding recommended abolishing Victoria’s laws against public drunkenness. Studies have shown such laws disproportionately target Aboriginal people. For example, a study by the Human Rights Law Centre found that Aboriginal women were 10 times more likely to be arrested for public intoxication than non-Indigenous women. The Royal Commission into Aboriginal Deaths in Custody also recommended abolishing this offence. The Royal Commission also examined the death of Ms Day’s late uncle, Harrison Day, who also died in custody.

Lawyers representing Ms Day’s family have also argued that the coroner should examine the role of systemic racism in Ms Day’s death. Though there were 147 deaths in custody between 2008 and 2018, no coroner has found systemic racism to be a factor in an Aboriginal death in custody. Victorian police have argued that whilst there may have been “indirect discrimination” on the basis of Ms Day’s race, they do not accept the submission that Ms Day’s death was due in part to systemic racism. If the coroner does accept systemic racism is a factor in Ms Day’s death, she may consider the role of systemic racism in police decisions to arrest Ms Day and other Aboriginal people for public drunkenness, and whether Ms Day’s Aboriginality was connected to the lack of care she received whilst in police custody.

Michael Brull

Policy Lawyer