When Coroner Ros Fogliani handed down her findings in the inquest into the death of Yamatji woman Ms Dhu, she released nearly three minutes of the footage of Ms Dhu’s final moments. Activists described Ms Dhu, like John Pat before her, as being dragged “like a dead kangaroo” from her cell, down the corridor, to the hospital. The Australian legal system was the last to carry her like this, when a coronial inquest failed to deliver the “damning criticism” her family hoped for since her death.
Fogliani described those who carried Ms Dhu as “inhumane” and “unprofessional”. CCTV vision of Ms Dhu being carried and dropped was “profoundly disturbing”. The coroner considered the matter “unfortunate” some 25 times. It was “regrettable” 11 times. “Sad”, 12 times.
Assessments like those delivered by Fogliani, addressing the conduct of third parties in deaths inside, are rare. More commonly, coroners blame ephemeral things like “disadvantage”. Even more commonly, they blame the deceased. Those who have died inside were “arrogant”, “verbally aggressive”, “difficult”, “drunk”, “brain damaged”, “impulsive”.
Outside of its pithiness and dehumanisation, the language coroners come to use about deaths inside is crucial. While coroners can’t impose any legal liability for the cases before them, they can and do use condemnatory language to express a sense of culpability – just like you and I might. That becomes important for advocates who seek justice for their loved ones.
The coroner’s court and its records are seen to achieve justice through storytelling and prevention. The inquest represents a crucial juncture in a case’s trajectory, between prosecution and the case’s end in the public record. Coroners are required to refer cases to prosecutors if they “form the opinion” that evidence points to a “known person” committing an offence in connection to the death, and that evidence could be “capable of satisfying a jury beyond reasonable doubt”.
Fogliani did not consider referring Ms Dhu’s case to prosecutors. Ms Dhu’s family fought for accountability in the coronial process to show that something “really happened” (a call they’ve since taken to the civil justice system), but were met with this in the inquest’s findings:
‘Unfortunately … the preponderance of … views’ that Ms Dhu was critically unwell ‘had the cumulative effect of obfuscating’ just how severely her life was ‘threaten[ed].’
Threatened by who? And how did that threat become her death?
To answer a common complaint of Indigenous families whose loved one has died inside – that they can find no justice in Australian law – I spent a year researching 134 cases to find out why prosecutions and civil actions for deaths inside were so uncommon. I concluded that the problem starts earlier than the discretion to prosecute or pursue civil action. It begins in the state’s coroner’s court.
Those courts produce an archive of death and public health data through which Guardian Australia combed to produce its Deaths Inside database. They can do so because, roughly since the royal commission into Aboriginal deaths in custody, they are mandated to hold inquests on every death inside and every death in connection with a police operation. The coroner’s court is also where most investigations conclude – “under-resourced” and “beset by delays” – with the production of findings and recommendations that are commonly unheeded.
Along with the legal structures I investigated (like heightened and inconsistent evidentiary standards, a glut of interested parties, a lack of impartial investigations), it was the coroner who ultimately directed the future of a case, decided if someone was blamed.
They had to see a “who”. And they had to see a “how”. In the 134 cases I researched, they saw both and then considered referring to prosecutors only 11 times. Of those 11, only five were referred to prosecutors. Of those, only two (the deaths of Mulrunji and Mr Jongmin) were taken up by prosecutors on the record. Mulrunji’s community “dragged … the government … every inch of the way” to that prosecution. Jongmin’s family “decided to leave it to white man’s law … but what did that give [us]? Nothing.” No one was convicted.
As the coroner’s courts grew more conscious of the dignity and wellbeing of the bereaved before them, they tried to humanise their deceased subjects or understand their contexts. Sometimes, coroners described the cultural strengths of the deceased, their talents, their passions, their families, their lives. More often, coroners would begin with the deceased’s first contact with police, their first alcoholic drink, first instance of abuse, first truancy. The attention was granular and humiliating.
While families whose loved ones died inside lamented that their loved one was on trial, coroners saw those dragged before them as tragic and deserving figures, fated to die of “natural causes”. Coroners, in their long careers examining death, are trained to look for biomedical models. It is unremarkable that they find that most deaths inside are from natural causes. What they and we often fail to see is how designating a death as natural commonly misrepresents how someone died inside, implying that nothing caused or contributed to it.
Pathology became a way to avoid blame – disguising violence as disadvantage or doom. Canadian Aboriginal scholars suggest that inquests see Indigenous bodies in custody as “already dead” and their suffering as nothing but sad, timely deaths – “the only thing we can expect from a disappearing race.” US scholars investigating police violence suggest that it “masks systemic harm”, turning “systemic government misconduct” into “anecdotes”.
When state actors and systems were blamed through anecdotes, it was for their failure to intervene in tragedies that apparently spiralled out from nowhere. They were not blamed for deliberately depriving people of care nor for weaponising indifference in circumstances of total control. Perhaps unsurprisingly, no one was blamed for the policies that entrapped Indigenous people inside in the first place. Coroners contributed to the same blameless fatalism that has long underscored Australia’s Indigenous policy. Indigenous death and suffering was naturalised, Indigenous people lived only by the benevolence of their gaolers.
When coroners blamed, they pointed to things going wrong in a system that routinely does Indigenous people wrong. Ms Dhu’s carceral control – which Amnesty International described as akin to torture – became a series of “missed opportunities” for benevolent intervention. In cases similar to Ms Dhu’s, conduct is “untimely”, “unnecessary”, “callous”, “bureaucratic”. In other cases, uses of force are “accidental”, “unfortunate”, “excessive”, “undignified”, “mild”, “justified”, “exacerbating an existing health issue”, but never causative.
Indigenous people were restrained and suffocated by crowds of bystanders, police, and healthcare professionals who coroners merely described as “overzealous”. Physical assaults by prison officers became “background stressors” in a man’s “decision” to take his own life.
Coroners used this kind of language as a shorthand to “reject” allegations of “brutality or inhumanity”. I cannot reject those allegations after I read that shorthand 134 times, about 149 people inside who can never come home. Australia’s legal processes after a death inside are brutal and inhumane in their own right. They drag those who die inside down their corridors like dead kangaroos.
Alison Whittaker is a Gomeroi poet and law scholar. She undertook this research at Harvard Law as a Fulbright and Roberta Sykes scholar