Thread by @callapilla

I am wearing pink lipstick today because Tanya Day loved pink, and always dressed the part.

You can read a minute-by-minute account of Tanya's time in the Castlemaine police cells here, as told through the CCTV footage. theguardian.com/australia-news…

A warning: that footage is very distressing.

The livestream of the finding in the inquest into the death of Yorta Yorta woman Tanya Day have begun. You can watch here: streaming.scvwebcast1.com/coronerscourt1…

Coroner Caitlin English has taken her seat.

She begins by explaining why the findings are being livestreamed, due to Covid-19.

The livestream is published on a 15-minute delay.

Among those few people in court is Koori liaison, @williamson_troy

English says she will not read the entirety of her findings, but will go through many of the key topics.

She begins by running through the timeline of Ms Day's arrest and death.

English notes that the coroner's role is confined to circumstances which are "sufficiently proximate and causally related to the death," and says it is not her role to cast legal or moral judgement.

She says the act specifically states that a coroner is prohibited from finding a person was guilty of an offence, but if a coroner believes an indictable offence has occurred they are obliged by law to refer that to police/DPP.

English is now summarising the royal commission into the Aboriginal deaths in custody, and noting that Tanya Day's uncle, Harrison Day, was among the 99 deaths investigated in RCIADIC.

"A number of recommendations made by the royal commission are relevant to this inquest."

Among the relevant recommendations, she says, is the recommendation that custody be a last resort and recommendation 79, which recommended the abolition of the crime of public drunkenness.

The coroner recommended this on 5-12-18, and the Andrews government has said it'll do it.

English says she also considered recommendations 6-40 of the royal commission, which concern the investigation of deaths in custody.

She says that she will consider the "care, treatment and supervision" of Ms Day in her finding — that's recommendation 12, it's not in the Vic Act

English says she is not confined to considering the medical circumstances of Ms Day's death.

"I have considered the preventability of Ms Day's death in accordance with the whole of the circumstances of the 5th of December 2017."

She says the question in this inquest is not WHAT happened, by why?

Why was Ms Day taken off the train? Why were police called?

"Why was she lodged in a cell? Why was that not a safe environment for her?"

English says the inclusion of systemic racism in the inquest scope goes not just to the law of public drunkness, but the impact of unconscious bias on all of the decisions made with regard to Ms Day on 5-12-17.

English: "Unsurprisingly, no witnesses admitted to holding racist beliefs and the impact of Ms Days Aboriginality in their actions on 5-12-18."

English said this line of questioning "yielded denials" from witnesses.

English said "the aspect of systemic racism which relates to unconscious bias and the differential application of discretion" was particularly applicable to police.

"Police discretion as it applies to the office of public drunkenness is very broad"

English says she has adopted the reasoning processes on systemic racism outlined by Mortimer J in Wotton v State of Qld fedcourt.gov.au/services/acces…

English says that as a coroner her standard of proof is the balance of probabilities.

"I am aware of the gravitas of my findings to all parties, whether reputationally or as regards the death of a loved one."

English, says she has considered whether systemic racism was a factor in Ms Day's death at each point — so there won't be a big overall finding of yes/no on racism.

English begins by discussing the cause of death.

She says the cause of death was"left cerebral hemorrhage of traumatic origin in a woman with liver cirrhosis."

The change from this and the earlier listed cause of death is the insertion of "traumatic origin".

A/Prof Laidlaw was asked if Ms Day would have survived if she had presented at Bendigo Hospital at 6pm, after her fall at 4.51pm, and been in surgery at St Vincent's at 9pm.

Laidlaw said he modelled this and found that "even under ideal circumstances it is not probably she would have survived."

English: "The best scenario gave Ms Day a 20% chance of survival, albeit with a severe disability."

English noted that had welfare checks been conducted at the 30 minute intervals specified in the police manual, she would have been checked at 5pm — less than 10 minutes after her fall. She was not in fact checked until 40 minutes later.

English is now commenting on the decision of VLIne train conductor Shaun Irvine to determine Ms Day was "unruly" and to contact police.

Irvine did not believe Ms Day required medical attention or an ambulance. He also said it was common to see passengers sleeping on the train.

"Mr Irvine agreed this was the first time he had removed someone when they were simply lying asleep on their seat."

Irvine said that when he had removed people from the train in the past, "on all occasions they had been abusive, aggressive, or annoying".

Irvine agreed under questioning that Ms Day had not been "unruly" in the sense meaning aggressive or abusive.

English said the evidence supports the view that by calling the train driver to call police, Irvine was making the decision to kick her off the train.

"I reject his evidence he did not have a preference either way."

Irvine said at inquest that his concern was for Ms Day's safety moving around the train statement. He suggested she might fall off a platform at an unmanned station, and that was why he had called police.

English is now questioning Irvine's evidence that he "could not recall if he noticed Ms Day was Indigenous when he first saw her".

(He described her as such to police.)

English says the direct evidence is Irvine referred to Ms Day as Aboriginal in his statement, and to police.

"It is unclear why he was vague in his evidence about this. I find his equivocation as to whether he noticed her features as Aboriginal as unconvincing."

English: "I find Mr Irvine made rapid decisions in less than a minute. He made a snap decision that Ms Day was an unruly customer, a danger to herself, and required police to remove her from the train. He could also have made a decision she was a passenger not in control."

English: "She was the only sleeping passenger he has ever called police to remove from the train, although he comes across three sleeping passengers a week."

English: "He was reluctant to own that his intent or preference was for Ms Day to be removed form the train. This suggests he treated her differently to other passengers."

She said Irvine did not consider calling for medical assistance or an ambulance.

"The combination of this evidence suggests it is open to me to draw the inference that Mr Irvine's decision making was influenced by unconscious bias."

"I find the decision to consider her unruly and to call police in preference to other options was influenced by her Aboriginality."

*I am not sure I got this quote exactly right.

English is going through the actions of the two police who arrested Ms Day, particularly the comment from one officer that he noted the "looks of disgust" on the faces of other passengers."

"I am not satisfied that those observations are sufficient for me to draw an inference."

English finds systemic racism was not a factor in the decision of police to arrest Ms Day, saying that although arrest for public drunkenness is supposed to be a matter of last resort, once police were called they decided they could not leave her "for her safety".

English: "I accept the decision to arrest was made in the operational context under the pressure of time."

later: "I am not satisfied there is any evidence to support a finding that Ms Day's Aboriginality played a role in this decision making."

The decision not to seek medical assistance after Ms Day was arrested, or call an ambulance.

One police officer considered calling an ambulance but then said she was improving. No one else considered seeking medical attention.

She's referring to the police coma scale. The recommendation for police for someone at a coma scale 3, which is a person who is unintelligible, is to send a person to a hospital or seek medical advice.

English: "Ms Day's presentation on the train appeared to meet coma scale three, requiring she be taken to hospital or seek medical advice."

Said police believed that because Ms Days condition was due to intoxication "it was not medical and did not require a medical response."

English said there was "minimal compliance with the medical checklist" by police.

English said "the lack of alternative options to custody for Ms Day is not surprising".

She says that having removed her from the train at Castlemaine - halfway through her journey from Echuca to Melbourne - it's not surprising she had no family or other options nearby.

However she says there is "no such thing as a minor deprivation of liberty," however common it may become to police.

She says the decision of police not to handcuff Ms Day was a "small but sensitive act".

English says there was "little in the way of community or medical options" explored for Ms Day, unlike another intoxicated woman seen by the same officers later that shift.

"It's hard not to compare Ms Day's
treatment with that of the. woman from the Cumberland Hotel."

That woman was not arrested or issued with a penalty, she was driven home.

That "suggests a clear inference of differential treatment for Ms Day," English said.

"She wasn't given the option of friendly community policing."

English quotes from the royal commission on Harrison Day: "Officers often exercised the discretion to drive drunks home, but not Harrison Day."

English said the decision of police to put Day in custody showed an "absence of problem solving".

"I am not of the view there is evidence to make a finding the differential treatment was due to Ms Day's Aboriginality."

English is now talking about the assessment of Ms Day as being fit to be in custody.

Police did not consider her risk of falls, as is required in part of the medical check.

She says that under the police operational guidelines, police were required to conduct a physical cell check every 30 minutes and speak to her with "active engagement" in response.

Police initially instituted 20 minute checks, then alternated physical and CCTV checks.

English finds that Danny Wolters, not Sgt Neale, was the one who decided to change the checks to a pattern that was not compliant with SOP.

However she notes that Neale was the officer in charge.

English quotes evidence police gave at inquest about why they didn't check on Ms Day when they saw her on the cell floor.

"Lots of people have a preference to sleep on the floor, and we have had people who are in custody who aren't intoxicated who prefer to sleep on the floor."

Apologies, trying to write a story at the same time so break in tweets.

English said Sgt Neale and LSC Wolters "demonstrated a cultural complacency toward people who were drunk."

She said: “I find that as a result of their non-compliance, neither Sgt Neale or LSC Wolters took proper care and supervision of Ms Day."

English:"I do not find LSC Wolters to be a credible witness. He was unable to acknowledge the inherent contradiction in saying in a triple-0 call 'I seen her slip over an hour ago' when he had not… I do not accept he was trying to be helpful."

English said she did not accept that deficiencies in the cell checks were "cured, explained or ameliorated" by Wolters' stated reliance on respecting Ms Day's human rights particularly dignity, privacy and gender.

English said both Neale and Wolters said they believed Ms Day's behaviour was as expected of a drunk person in a cell.

"This illustrates the power of stereotype and its resistance to correction."

English: "If the required physical checks had been conducted every 20 minutes or every 30 minutes… it may well be that Ms Day's deterioration was detected earlier."

English said Ms Day was "not treated with dignity and humanity" as detained persons are required to be under the Victorian Charter of Human Rights.

She recommended a human rights review of the Victorian Police Manual.

English says Ms Day's family asked her to consider whether police were guilty of criminal negligence manslaughter.

She said because of Laidlaw's finding that Day had a low chance of surviving that fall, "any inadequacies of their care of Ms Day was not causative of her death."

But she says the issue of whether Ms Day's death was preventable is broader than just whether medical intervention post-fall would have ensured her survival.

English: "Ms Day's death was clearly preventable had she not been arrested and taken into custody."

English says it's not her role to say whether a criminal offence may have occurred, only to establish the facts.

BREAKING: Coroner Caitlin English recommends the DPP investigate whether there is a case for criminal negligent manslaughter in the death of Ms Day. She said the totality of the evidence suggests that "an indictable offence may have been affected."

And with that the broadcast was cut on my end. It's come back, but I might have missed a bit.

And English just said she would recommend that the coroner's act be amended to allow the coroner to direct the police investigation, rather than just rely on police to conduct it as they see fit.

THIS IS QUITE THE FINDING.

And she's adjourned. Story on @GuardianAus shortly.

More to come but here's the main bit: Tanya Day inquest: coroner refers death in custody of Aboriginal woman for possible prosecution theguardian.com/australia-news…