In the wake of the Black Lives Matter protests, footage of police punching Aboriginal man Noel Henry in the head during an arrest has prompted outrage, while experts express concern about transparency in Australia’s private prisons following another death in custody in Western Australia. By Amy McQuire.

Failure of justice for Indigenous people

A still from video footage of Noel Henry’s arrest.
A still from video footage of Noel Henry’s arrest.
Credit: Facebook

It was about 10.30pm on Monday when Wiradjuri activist and social worker Latoya Rule saw the video. Only an hour after it had been shot, the mobile phone footage had been uploaded on social media and was already circulating around the Aboriginal community in Adelaide.

The distressing video shows an Aboriginal man – Noel Henry – being held down by three police officers in the Adelaide suburb of Kilburn. His face is pressed against a concrete ledge. Witnesses in the background can be heard yelling: “Get off his head! Let him get up!” As the footage continues, a cop repeatedly strikes him.

That night, Rule was immediately concerned about the man’s welfare: “I thought, this is not okay,” they told The Saturday Paper.

And then they thought: “Where is this man now?”

Concerned about Henry’s welfare, Rule began making inquiries and found out he had been taken into the Port Adelaide watch house.

The Aboriginal Legal Rights Movement (South Australia) was unable to visit him that night, reportedly due to visitor restrictions under Covid-19. In the meantime, Rule sent a Twitter message to SA Premier Steven Marshall urging him to take action. Witnesses at the scene told Rule that night Henry had simply been riding his bike without a helmet.

The next morning, Rule went down to the station to visit Henry. He had minor injuries to his face, legs and body but was sore and tired, and Rule was concerned enough to call an ambulance.

“Noel told me that he was saying to them ‘I couldn’t breathe’ while they were on top of him and he wanted to see a doctor,” Rule told The Saturday Paper. Rule said there had been no medical support given to Henry while he was in the cell.

That morning, the premier sent a message back to Rule saying he would look into it, and later told media that the footage was “confronting” and “concerning”.

South Australia Police in a statement claimed officers had been alerted to Henry while responding to an unrelated alleged domestic violence incident. They said Henry had been approached over “suspicions concerning him being in possession of illicit drugs”, but the 28-year-old was not charged with this offence and there was no evidence he had drugs on him. Instead, he was taken into custody on charges of hindering and resisting police and property damage.

By the next morning, while Rule was still at the watch house, those charges were dropped. “[Henry] had no charges for why he was even attacked in the first place,” Rule says.

An internal police investigation is under way, and two police officers have been placed on administrative duties.

Rule says there was no time to wait when an Aboriginal man could have potentially become the next statistic, the next death in custody. In the present moment, with attention sharply focused on the brutality of the police against black bodies, stoked by our own protests against Aboriginal deaths in custody, there is a recognition in the power of video footage.

“It seems like justice could be had because injustice is being seen,” Rule says.

However, not all violence is recorded, and not all injustice is seen, especially when it is not in public space.

As protesters came out in their tens of thousands in capital cities for the historic Black Lives Matter protests across Australia, news emerged of another black death in custody. An Aboriginal man had died at age 40 while locked up in Western Australia’s Acacia Prison, near Perth.

The facility is a private prison run by multinational security firm Serco, which holds contracts for several onshore detention centres as well as Christmas Island and has the multibillion-dollar contract to run the Clarence Correctional Centre near Grafton, New South Wales, Australia’s largest prison, due to house its first inmates next month.

Few details have been released into this man’s death. And the absence of information has led to an absence of attention, even with the eyes of the country keenly on the issue of black deaths in custody.

WA Police told the media that the death did not “appear to be suspicious”, even before any investigation has been finalised or a coronial inquest has been conducted.

University of Technology Sydney law professor Thalia Anthony told The Saturday Paper that in cases of prison deaths, or deaths where there is no video footage, there is an assumption from the general public that the justice system is largely fair.

“If it happens in prison, or if it’s not filmed, there’s a denial or concealing of that brutality,” says Anthony. “I’d even say there is an attempt to conceal it. The onus of proof is on people to capture the evidence or the footage and present it to the court, rather than an assumption that our institutions are not working.”

Anthony says the brutality shown in the justice system is still seen as an “aberration”, rather than a fundamental problem with the institution: “Unless there’s something explicit we assume that otherwise everything is happening according to procedural fairness.

“I think what is happening in prisons is that there is never that transparency, so it doesn’t capture the attention of politicians or the media.”

The presumption this was a “natural death” could narrow the focus of any inquest, she says.

“Before an inquest, there should never be an assumption that a person died of natural causes. There needs to be the question, why did that person die in prison? Why did that prison make that person die?

“… If a person dies of natural causes, that person is [seen as] responsible for their own life. That consequently prevents questions being asked about the responsibility of the system.”

The fact this death occurred in a private prison raises even greater questions about accountability, Anthony says.

“Government institutions like prisons are still subject to administrative review. Although it’s limited, there is still a layer of oversight and accountability. Whereas private prisons don’t have that … It means that when someone is harmed or when conditions are not safe, there are very few rights that the person inside or their family can have.

“It’s really concerning. Given the harms in private prisons in the US – and also the fact these are profit-making institutions – I think it’s inevitable that with a move towards a greater private-prison model there will be less attention paid to the wellbeing of people in prison. Simply because it’s not profitable to look after people and their lives. The harms would be greater and the oversight would be reduced. It’s the perfect storm.”

In Queensland, a 2018 report into the state’s corrections system by the Crime and Corruption Commission found that the state’s two privately run prisons “create challenges for the state in ensuring prisoners … are treated humanely”. The Queensland government announced it would take over the operation of its two privately owned prisons in 2019 following the report. But the Grafton mega-prison, run by Serco, shows this is not a trend nationally. According to a University of Sydney report in 2016, Australia has the highest rate of private incarceration per capita in the world.

Latoya Rule knows what it’s like to fight for transparency about black deaths behind bars. In the case of their brother, Wayne “Fella” Morrison, the fight for the truth has stretched out for four years.

Mr Morrison died in custody in hospital while on remand at the Yatala Labour Prison in Adelaide in 2016.

In CCTV footage that was revealed last year during the inquest into his death, 12 to 15 guards are shown restraining Mr Morrison and pushing him to the ground. But there are gaps in the footage from when Mr Morrison became unresponsive in the prison van.

In April, the Supreme Court of South Australia determined that the guards involved could not be compelled to testify at the inquest. While some have already given evidence, this week the Coroners Court heard that none of the guards present in the van would be testifying – another setback to Rule and their family’s attempts to find out what happened. The inquest will continue in September.

With avenues for justice so limited through the white justice system, Rule says there is a need to consider new forms of what justice means.

“I don’t see justice being had here in our lifetime,” they say. “We have to start looking at creating safe black spaces for our people, for trauma, for safety, because I don’t know where justice lies except within ourselves, with each other, with ancestors, in spaces they can’t touch.”

The Saturday Paper submitted questions to the WA Department of Justice regarding the death in custody at Acacia Prison. By time of press, the department had not replied.

This article was first published in the print edition of The Saturday Paper on Jun 20, 2020 as "Undue force".

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Amy McQuire is a Darumbal/South Sea Islander journalist.

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