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By Poppy Morandin.


Following recent weeks in which Indigenous deaths in custody have been at the forefront of discussion, an inquest has heard that a treating nurse of an Indigenous man who died in his cell at Tamworth Correctional Centre was not informed of his seizures.

In September 2017, Tane Chatfield died following being held on remand for two years.

On the 19th of September Mr Chatfield had two seizures before being taken to Tamworth Hospital.

Following this visit, he was returned to the correctional centre and evaluated by Nurse Unit Manager Janeen Adams. She sent Chatfield back into this cell to rest alone after deeming he was well enough to “be ‘sick in cell’ to rest until he could be reviewed.”

She maintained that neither corrections officer nor Mr Chatfield informed her of the seizures.

That morning Mr Chatfield was found unconscious and died following two days at Tamworth Base Hospital on 22 September. NSW Corrective Services at the time of the incident had informed Mr Chatfield’s family that his death was a suicide.

This inquest is ongoing.

NSW deputy state coroner Harriet Grahame may make recommendations in regard to preventing similar deaths in custody, in addition to determining Mr Chatfield’s cause of death.

Since 1991 Royal Commission into Aboriginal Deaths in Custody, there have been 432 further deaths in custody, with no convictions recorded.

The death of George Floyd in America inspired activists, such as Raul Bassi, to hold protests in Australia to bring attention to Australia’s own issues with systematic racism in the criminal justice system including Indigenous deaths in custody.

Floyd died under the knee of white police officer Derek Chauvin whilst continually calling out “I can’t breathe.”

In an emotional Four Corners episode Stan Grant, an esteemed Indigenous journalist, explored this issue.

“There in that moment he became every black life… every nameless, faceless person who was told their lives did not matter.

“In death George Floyd gives his name to those nameless, in his cries we hear the cries of hundreds of years of history…We have heard George Floyd’s words here in Australian prisons.”

Grant refers to the tragic death of David Dungay, who died in Sydney’s Long Bay Jail after guards rushed into his cell, forcefully grabbing him, and taking him into another cell before holding him down and injecting him with a sedative.

This occurred in efforts to stop Mr Dungay, a diabetic, eating biscuits. In footage of the incident, Dungay is heard yelling “I can’t breathe” around 12 times.

Early last month the ‘Stop All Black Deaths in Custody: Vigil for George Floyd’ also known as the Black Lives Matter Protestreceived massive amounts of support and attention, after a last-minute appeal led to its authorisation.

Raul Bassi, the organiser, and long-term activist had lodged an application with police, a week out from the planned date of the protest, as is required under Part 4 of the Summary Offences Act. If you serve the police a week out from a protest an application and they do not obtain an order deauthorising the protest from the Supreme Court, then it is deemed to be an authorised public assembly.

Authorisation of a public assembly will provide immunity from prosecution to participants, for breaches related to participating in the public assembly including offences related to obstruction of traffic, move-on directions or in this case social distancing rules, if it is held substantially in accordance with the particulars furnished.

However, inside of the week Mr Bassi had another meeting with police due to the event becoming bigger than initially thought, after over 5,000 people responded ‘going’ to the Facebook event, leading the event to be moved from out the front of Department of Corrective Services to Town Hall.

Due to Mr Bassi’s busy schedule, the police amended the application for him with the new particulars.

Despite this, the police ‘backflipped’ on their decision and decided to go to the Supreme Court for an order to deauthorise the protest, a day out. The police succeeded in this application, with Justice Fagan ruling that the protest could not go ahead.

On the day of the protest, barristers Stephen Lawrence and Felicity Graham were called in for a last-minute appeal to authorise the protest.

Criminal Defence Lawyers Australia spoke to Stephen Lawrence, to reflect on the decision, the protest itself, and its purpose.

Can you take us through the events on the day of the protest?

“I was home in Dubbo that weekend and Felicity Graham an old colleague of mine from the Aboriginal Legal Service was visiting. We spoke early on Saturday to Emmanuel Kerkyasharian and Peter O’Brien who had appeared before Justice Fagan the day before and a decision was made to file an appeal in the Court of Appeal against the decision of Justice Fagan.

“Felicity and I appeared on the AVL [Audio Visual Link] from Dubbo, which we wouldn’t previously have been able to do but thanks to the technological advances to the court systems in light of COVID-19 pandemic.”

With the appeal lodged at 10am, the protest to begin at 3pm and the court convening at 1:45pm the race with time was on.

“The hearing took about half an hour or so and the judges briefly adjourned to make their decision, they came back on the bench at 2:45 and ruled that Justice Fagan had erred,

“The fundamental error they found in Justice Fagan’s decision was that he had found that the subsequent application that the police had drafted from Mr Bassi was a new application and therefore Mr Bassi hadn’t served the police more than 7 days out.

“The appeal judges held that it was in fact an amendment of the application that had been lodged with the police 7 days out. The effect of that was that Mr Bassi had filed an application 7 days out and there was no contrary order from the Supreme Court because Justice Fagan’s order was in error. Therefore, as a matter of law, the protest was an authorised public assembly.

“It certainly wasn’t a case of the three judges deciding on the merits that the protest should go ahead, balancing public health concerns and other matters – rather it was a technical legal point.

“We started to get the feeling in the course of the hearing, that we were going to win and we immediately turned our minds to the need to make sure thousands of people assembling at Town Hall knew the result…we lined up all of these messages on text message, Facebook and all forms of social media and then we waited nervously for the judges to come back with their decision and as soon as they said the words authorised public assembly…we hit send on the messages and post on Facebook.”

In response to an iconic viral selfie that later went viral, Lawrence laughed explaining: “I stupidly posted a selfie of Felicity and I with a big dumb grin on my face and not realising it would get thousands of shares on Twitter and stuff so, I would have picked a better picture if I had more state of mind.”

How did you feel when you saw the footage of David Dungay’s nephew proclaiming that the appeal was successful?

“Very moved….What I respect and find very inspiring about the Black Lives Matter movement in Australia is how grass roots it is, I spent a lot of years working at the Aboriginal Legal Service in Western NSW, and involved in the Aboriginal communities in Dubbo and other places. It’s inspiring to see Aboriginal communities and families standing up for their rights and politically advocating in such a way for their causes.”

Noting that 20,000 people rocked up under the pretence it was unauthorised – what do you think could have occurred if the appeal had not been granted?

“I’m told it changed the mood of the protest, people were very happy it had happened and I suppose people thought the system had vindicated their rights and their decision to attend.

“I suppose in the most immediate sense, the police had a difficult situation on their hands because no police officer likes to stand by while there’s wide spread violation of the law…I could imagine there would have been attempts to arrest people, to give tickets, and in the heightened state of emotions given the issues people were focused on there might well have been violence.”

What is your response to those who insist on linking outbreaks to the protest?

“The Murdoch media has been extremely pernicious in this respect and there was a story in the last couple of days deliberately misleading people, suggesting there was a link between the outbreak in Melbourne and the BLM protests there.

“There’s a particular type of person in the community who so fundamentally objects to Aboriginal people politically advocating for themselves that they just can’t tolerate them protesting at this time and that says more about the values and attitudes of those people than it does about any real public Health equation. I noticed they didn’t seem as concerned about the large 5G protest event that took place before the BLM protests”

Why was it so important for the protest to occur at that time?

“There was a suggestion in Justice Fagan’s decision that the right to protest was not being abrogated it was just being postponed, but anyone who understands anything about politics knows that politics is very significantly about timing. I find the idea that the current public health situation warrants banning all protests to be a radical and extreme proposition. It is troubling how untroubled some seem by it. It is also inconsistent with the other activities that are allowed. I found Justice Adamson’s recent decision allowing a BLM protest to proceed in the case of Commissioner of Police v Gray to be extremely coherent and persuasive”

What connections did you draw between the situation in America and Australia?

“In both America and Australia you have mass incarceration and mass overrepresentation of racial minorities so in both places you see a disproportionate amount of deaths in custody and a disproportionate amount of violent interactions with police and that’s why these protests are so valuable, because we need to deal with the underlying social circumstances that drive that mass incarceration in order to stop it because that mass incarceration is so harmful to individuals, families and communities.”

Following the protests, justice targets will now be included in the ‘Closing the Gap’ initiative, do you see this as providing positive impacts?

“Targets aren’t a bad thing but I’m more concerned with adequate resources being put on the ground in to combating the underlying causes of crime and social disadvantage. It is estimated in NSW we have half the level of drug treatment services that we need.

“This problem of aboriginal overrepresentation in the criminal justice system is very significantly a question of social factors like drug use, mental illness, intergenerational poverty and trauma. All of these problems are able to be dealt with by the proper allocation of social resources.

“For example the community where I live and where I am deputy mayor, Dubbo, we don’t even have a drug and alcohol rehabilitation and detox centre,

“The state government is quite happy to continue sending countless young men and women to be brutalised in Wellington jail and elsewhere, and sure some people have to be incarcerated everyone knows that, but a lot of people don’t have to be and the reason they are going into custody is completely because of completely inadequate expenditure on what stops crimes occurring.”

What changes in the criminal justice system would you like to see employed?

“I’d like to be very serious consideration being given to the punitive operation of our drug laws. We need to stop criminalising and punishing addicts and other users. We need to focus our policing resources and on the Mr Bigs of the drug trade, we need to stop pouring unnecessary and counterproductive resources into street drug offences.

“We need to reconceptualise what community safety is and how you achieve community safety through the criminal justice system. A structural assumption of the system is that you achieve community safety through incapacitation and I think we need to meet head on, the reality that our criminal justice system has produced a racially defined and criminal underclass and our criminal justice system in its operation ensures it stays like that and that is socially harmful. The system itself is socially harmful.

“We need to reconceptualise our system in fundamental ways, but we also need to make those legislative and policy changes around drug treatment and drug decriminalisation to tackle it at both ends.”

The Wigs: Hosted by Practising Barristers

The Wigs is a popular growing podcast, hosted by Jim Minns, and presented by NSW barristers, Stephen Lawrence, Felicity Graham and Emmanuel Kerkyasharian.

Click here to listen to The Wigs Podcast.

Each of these experienced barristers provide a monthly podcast presentation exploring and interrogating contemporary legal issues. It’s aim is to provide public insight of the criminal justice system. It encourages public discussion and was ranked as the nation’s #1 podcast following the Black Lives Matter appeal.

Have a question? Get in touch with our Sydney based criminal lawyers today.

Published on 19/07/2020

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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