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Byron Shire
May 15, 2021

Broken promises and ‘dumb insolence’: the death of Kwementyaye Briscoe

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Kwementyaye Briscoe and an Aboriginal deaths in custody protest in Alice Springs. Photos Treaty Nation


Crikey’s Bob Gosford reports

For Kwementyaye ‘Terrance’ Briscoe, Wednesday 4 January was just another too-hot day in a too-short life.

Kwementyaye spent a few hours with family cooling off at the local pool before heading down to the bed of the Todd River to have a few drinks with friends in the sandy shade of its massive river red gums. During the day the temperature had topped 40°C and a light sprinkle of rain hadn’t done much to take heat out of the day. Later his group moved a few kilometres away to a suburban park as the sun fell from the sky.

Just another bleary day for an habitual drunk, who, at just 27 years old, had been in police protective custody — aka the drunk tank — 31 times. So there was nothing unusual when just after 9 o’clock that night a Northern Territory Police paddy-wagon pulled up and took Kwementyaye and others in his party into protective custody for his 32nd time.

Then the whole day went to shit.

Shit for Kwementyaye, his friends and family. Shit for the 10 NT Police officers that dealt with him before he was found dead in a cell in the Alice Springs Police Station watchhouse just before 2 o’clock on the morning of Thursday 5 January.

Somehow one of Kwementyaye’s cousins had smuggled a 750ml bottle of rum — ‘hot stuff’ – into the back of the paddy-wagon, which they promptly consumed in the 20-minute ride to the watchhouse. According to evidence given at Kwementyaye’s inquest in Alice Springs last month, he skolled better than half of that bottle and by the time they arrived at the watchhouse he was, as we say here, ‘full-drunk’. This half-bottle of hot stuff may have added up to 0.23 per cent of Kwementyaye’s 0.375 per cent blood alcohol content — a level that would have most of us unconscious or close to death.

By the time they got to the watchhouse Kwementyaye was so shickered that he couldn’t walk unaided from the paddy-wagon and was dragged face-down into the watchhouse, where he lay unresponsive for a few minutes, prompting one officer to push a pen into his fingernail to test his responses. This may have sparked Kwementyaye into action because, as Constable Gareth Evans told Coroner Greg Cavanagh, he then became unco-operative and argumentative.

Constable Evans slung Kwementyaye across the watchhouse reception area, his head and arm hitting the reception desk before he fell bleeding to the watchhouse floor. After processing, Kwementyaye was carried groaning and gasping to a cell, where he was placed in an awkward position, his body askew on a cell mattress, his neck and head twisted against a concrete block.

Police cleaned Kwementyaye’s blood from the watchhouse floor. No-one saw fit to have Kwementyaye checked by a nurse or taken to hospital five minutes up the road, preferring instead to follow OiC Sergeant William McDonnell’s instructions to let him ‘sleep it off’.

Whether Kwementyaye was asleep or unconscious is unclear but his condition was of such concern to his fellow prisoners that they made repeated attempts to alert watchhouse police to Kwementyaye’s condition, using alarm buttons connected to the watchhouse desk phone.

There is no doubt that all of the police officers who had dealings with Kwementyaye that night are now very sorry for their failings. Each has given their heartfelt apologies to Kwementyaye’s family. Sergeant McDonnell told the inquest that he would carry Kwementyaye’s death for the rest of his career. He told the inquest that he and other police had become ‘complacent’ about drunks turning up to the watchhouse with head wounds.

At 11pm the graveyard shift came on duty.

Probationary Constable David O’Keefe told the inquest that, despite instructions from Acting Sergeant Andrew Barram that he make regular observations of Kwementyaye, he didn’t make a single check from the time he came on duty at 11pm until Kwementyaye was found dead in his cell by Sergeant Barram when he returned to the watchhouse almost three hours later. Instead O’Keefe spent some of that time on the net and playing with his iPod.

O’Keefe ignored the attempts of prisoners to alert him to Kwementyaye’s condition, saying that he was ‘distracted’, ‘lazy’ and ‘tired’. He admitted to lying to ambulance officers that he had conducted regular cell checks on Kwementyaye when he had done none. O’Keefe also lied to Sergeant Andrew Barram.

O’Keefe’s duty partner that night was Probationary Constable Janice Kershaw, who agreed with Cavanagh’s assertion that she had been ‘completely derelict’ and ‘complacent’ that night. She had forgotten relevant parts of her custody training and made no observations of Kwementyaye’s condition.

In the days after Kwementyaye’s body was found in the cell, his family was quick to claim foul play by the police. On 6 January the ABC’s Michael Coggan reported these comments by Kwementyaye’s aunt Patricia Morton-Thomas:

PATRICIA MORTON-THOMAS: What the police had told us originally was that Terrance had been in lockup and he’d fallen over and sustained an injury to his head. They went to check on him a while over and he wasn’t breathing, so they tried emergency CPR but it wasn’t successful.

MICHAEL COGGAN: Patricia Morton-Thomas says there’s confusion about what happened in the watchhouse, but she alleges two other young men taken into custody at the same time as Mr Briscoe have told the family they witnessed Mr Briscoe being beaten by five police officers.

PATRICIA MORTON-THOMAS: Then we went and spoke to the two young men who were locked up with him and they claimed that Terrance was beaten by five officers, four of whom were male and one female officer. That’s their version of it. So we’re still confused. There’s a lot of rumours flying around, from people saying that he had been tasered or… it’s distressing. We just want the truth of it.

The job of finding the truth as to how and why Kwementyaye died falls to Northern Territory Coroner Greg Cavanagh. Cavanagh was ably assisted by Sydney-based barrister Peggy Dwyer, no stranger to the criminal law and coronial inquests in the NT. Cavanagh’s inquest into Kwementyaye’s death ran for nine days in mid-June.

From the first day of the inquest it was apparent that this would be a very different death in custody inquest from any held before in the NT. The court heard of the terrible circumstances of Kwementyaye’s death and viewed CCTV footage from inside the watchhouse – which was later released to the media. On the first day an affidavit from a senior NT Police officer was tendered apologising to Kwementyaye’s family for not providing him the care he should have received.

Peggy Dwyer’s closing submissions to the inquest, as reported by The Australian’s Rebecca Puddy, may give some clues as to how Coroner Cavanagh might approach his report into Kwementyaye’s death and who he might look to for responsibility:

Police were negligent, sloppy and excessive in their use of force against Kwementyaye Briscoe on the night he died in the Alice Springs police watchhouse, a court has heard. In her closing submissions, counsel assisting Coroner Peggy Dwyer described the death of the 27-year-old Anmatyerre man in January as ‘a shameful chapter of policing in the Northern Territory’. She said it was ‘painfully obvious’ he was helplessly intoxicated. ‘(He was) manhandled in a way that was somewhat excessive. Kwementyaye’s treatment in the watchhouse was shocking.’ She said probationary constables and Aboriginal community police officers had been left unsupervised, breaking custody guidelines and a promise made to Coroner Greg Cavanagh after three previous deaths in custody.

Peggy Dwyer’s reference to the earlier promises made to Coroner Cavanagh by NT Police relates to a 2009 death in custody with uncanny similarities to Kwementyaye’s. These are the first lines from Coroner Cavanagh’s findings in the Inquest into the death of Cedric Trigger in early January 2009:

Mr Cedric Trigger was arrested by Northern Territory Police members some time after midnight on Friday 9 January 2009 and conveyed to the Alice Springs watchhouse. Less than two hours later, he was found not breathing on the floor of a police cell within the Alice Springs watchhouse, and formally pronounced deceased at Alice Springs Hospital at 3:40am after all appropriate resuscitation efforts had proved unsuccessful.

These words from paragraph 19 of Cedric Trigger’s inquest report must surely ring down the years:

What I saw on the recording was the deceased falling from the tailgate of the police vehicle on to the concrete, and lying there for a few minutes seemingly making a few unsuccessful attempts to sit up. The officers were not assisting him at this time. They then dragged the deceased, face down, still handcuffed, for several metres to the holding cell. Those few minutes captured on the video demonstrated treatment of the deceased – or any person taken into the custody of the police – which was undignified and inappropriate.

As must these:

39. … the deceased should not have died face down in a police cell in circumstances where no risk assessment had been carried out to assess his health or well being, and no considered decision had been made by any officer as to whether it was appropriate for him to be brought into, or remain in, the watchhouse in the non-responsive state he was in.

40. Approximately ten years ago I held inquests into the deaths of two men in Alice Springs watchhouse: Gardner (1997) and Ross (1998). It was as a result of those matters that the Alice Springs Watchhouse Standard Operating Procedures were amended to define and emphasise the role of the watchhouse keeper as quoted above. The circumstances of those deaths highlighted the onerous responsibilities of police concerning the many hundreds of people taken into ‘protective custody’ each year. I commented then about the unexciting yet unrelenting task which falls to junior police to ‘pick up drunks’ and take them into their custody in large numbers every day and every night of the year in Alice Springs. That situation has not changed.

The ‘promises’ that Peggy Dwyer referred to in her closing submissions came from (then) Commander Anne-Marie Murphy. Cavanagh recorded her comments:

42. … once she reviewed the details of this particular matter, she immediately realised that the role of watch-house keeper was not being appropriately formalised in Alice Springs. She has implemented changes to ensure that on each shift there is now a designated watchhouse keeper. With regard to the specifics of this case, Commander Murphy said that it was a ‘rare occurrence’ that a person needs to be dragged into a cell and that if a person is in such a state, he should be taken to hospital. Further, she confirmed that the period of time the deceased was in the holding cell without a risk assessment was too long. The absence of a watchhouse keeper contributed to this occurring in the way that I have already discussed.

43. There was evidence of some inconsistencies between the Custody Manual and the Alice Springs Watchhouse Standard Operating Procedures, as well as a lack of clarity in the latter document which has not been updated for some time. I am pleased to hear that it is intended that the Standard Operating Procedures will be amended into a clear and concise document which simply forms a short supplement to the Custody Manual, emphasising matters which are of particular relevance to the Alice Springs watchhouse, rather than a lengthy restatement of principles and policy.

44. Commander Murphy said (T 202):

‘Since I’ve read this file I’ve had a few conversations with some of my management team about the way the watchhouse has been functioning or not functioning in accordance with the Custody Manual, particularly in terms of the watchhouse keeper, and the assessment of people that come in to make sure that they really clearly understand that we do not want people at risk in the watchhouse unless we absolutely have to. I intend to meet with all the watch commanders in their next forthcoming meeting that they have prior to their rosters coming out, to reinforce these assessments and their responsibility in terms of the watchhouse. And it’s up to them to reinforce that with their various members on their patrols: their supervisors and their patrols which includes their watchhouse staff.’

45. But for Commander Murphy’s evidence, I would have made recommendations pursuant to section 26 of the Coroners Act centred around watchhouse procedures. However, it is not necessary to do so when I am confident that measures have already been put in place to address these matters.

Two years later Cavanagh has again been given assurances by senior NT Police officers that what has gone so very wrong in the Alice Springs watchhouse will be fixed; police will get ‘more rigorous training’; posters on prisoner care will be displayed in the watchhouse; nurses are now on duty four nights out of seven; there has been a ‘full review’ of custody operations and procedures since Kwementyaye’s death, and a ‘senior officer’ will be stationed at the watchhouse at all times.

Whether those steps will address the apparently systematic concerns identified by Superintendent Delcene Jones of the NT Police Governance and Accountability Unit remains to be seen. As the ABC’s Allyson Horn reported, Superintendent Jones told Cavanagh that she had:

… raised watchhouse staffing concerns with several senior officials but was ignored… she was distressed about the watchhouse being manned by only junior, inexperienced staff and by the constant rotation of staff through the facility. Superintendent Jones told the inquiry her recommendations to change staffing conditions had been met with reactions ranging from ‘dumb insolence’ to outright refusal.

In 1991 Commissioner Elliott Johnstone QC handed down the report of the Royal Commission into Aboriginal Deaths in Custody. Speaking hopefully about progress in relations between Aboriginal people and the police in the Northern Territory, the report noted in regard to the death in custody of a man known as Jabanardi, the report said that while his death represented:

… in a particularly dramatic way, the very great problems which can occur between Aboriginal people and police, there is evidence that much has been done since 1980 to address the apparent gulf which can separate Aboriginal people from the broader community, whereby interaction with the police gains a particular focus and is an indicator of the nature of relations between the Aboriginal and non-Aboriginal community…

I believe that there is much to be learned from the Northern Territory experience which will be helpful in other places throughout Australia.

Coroner Cavanagh is expected to hand down his findings in a few weeks.

You can watch CCTV footage from the Alice Springs watchhouse in both Kwementyaye Briscoe and Cedric Trigger’s matters in this report by ABC NT’s Alice Springs-based reporter Allyson Horn.

http://www.abc.net.au/news/2012-06-22/death-in-custody-sparks-calls-for-royal-commission/4087522?section=nt


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