Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 79-92
The town of Roebourne, Western Australia, is hardly a major tourist attraction. Situated 1200 km north of Perth in the Pilbara Region, it lies in the traditional lands of the Ngarluma people. White settlement dates back to the arrival of pastoralists in 1864. Roebourne remained an obscure country town, with modest economic links to nearby pearling and mining industries. It was substantially effected by the mining boom of the 1960s, which saw the town of Karratha, some 40 km distant, become the regional centre. By the early 1980s Roebourne had a population of some 1200, of whom approximately two-thirds were of Aboriginal descent.
The Aboriginal community of Roebourne was afflicted by the social disorganisation which characterises many Aboriginal towns. Mining development in the Pilbara brought an influx to the area of hard-drinking single white men. In the words of one observer:
Many Aboriginal men lost the women they had been destined to marry since birth; ancient Aboriginal laws and customs were shattered by conflict and alcohol.
Though they proudly called themselves Aboriginal, many of the young people in Roebourne are the unacknowledged children of white mine workers (Mayman 1984).
There is little gainful employment or recreational opportunity for young people in Roebourne. The centre of the town's cultural life is the Victoria Hotel. Its two bars are traditionally segregated by race - the saloon bar for whites, the 4 armpit' for blacks. It would be an understatement to characterise either place as anything less than rough; the Victoria Hotel is not the place to go for a quiet drink.
On 28 September 1983, four police officers and an Aboriginal police aide returned to Roebourne from a police union meeting at Karratha. They were off duty, and had each drunk six or seven glasses of beer at the Karratha Golf Club. Upon their return to Roebourne, they called in at the Victoria.
One local Aboriginal, Ashley James, claims he was threatened by one of the off-duty police when he sought to make a purchase at the hotel's bottle shop. A hotel barmaid later testified that police swore at James and threatened to get him when he left the hotel: '"We'll get you, you black cunt ..s. " and they just started yelling and acting like idiots' (Western Australia 1984, p. 498). James himself later testified that one of the police subsequently accosted him outside on the footpath, and told him to 'get fucked'. James then claimed that he fought back, and was then attacked by the other police (Western Australia 1984, pp. 682-6). A general melee ensued, with Aborigines and police trading punches. A sixteen-year-old Aboriginal youth, John Pat, joined the fray, and according to witnesses, was struck in the face by a policeman and fell backward, striking his head hard on the roadway (Western Australia 1984, p. 883).
According to witnesses, one of the off-duty police went over to Pat and kicked him in the head. Pat was then allegedly dragged to a waiting police van, kicked in the face, and thrown in 'like a dead kangaroo' (Western Australia 1984, p. 875).
Pat and three other Aborigines were driven to the Roebourne police station. Observers across the street from the station alleged that the Aborigines were systematically beaten as they were taken from the police van. One after another, the prisoners were dragged from the van and dropped on the cement pathway. Each was picked up, punched to the ground, and kicked. According to one observer, none of the prisoners fought back or resisted (Western Australia 1984, pp. 51-7 and pp. 120-3).
One of the prisoners described his experience in response to a barrister's questions:
Who grabbed you by the arms?...... Constable Jock.
Were you still in the van or were you out of the van when you were grabbed by the arms?...... Out.
Did anything happen after Constable Jock grabbed you by the arms?...... Yeah.
What happened?...... Constable Steve started punching me in the guts.
Where was he when he did that?...... At the police station.
Where was he in relation to you? Was he side, front, back, or what?...... Back.
Who else was with you when Constable Steve started punching you in the guts?...... Constable Jock.
You told us that he had hold of you by the arms. Can you tell us, please, whether he still had hold of you by the arms when you were punched in the guts, or not?...... Yeah.
What effect did that have on you?...... Pardon?
What happened to you when you were punched in the guts?...... I fell down on the ground.
Did anything else happen after you were down on the ground?...... I just seen the boot, boots, coming up to my eyes.
You saw what? Boots.
Coming up to your eyes? Yeah.
Did you see who was wearing the boots? No.
You saw the boots coming up to your eyes. What happened? They kicked me in the eye and the guts (Western Australia 1984, pp. 192-3).
One witness from across the street said she could hear the sound of loud blows, and 'come on, fight, you bastard'. 'I thought the police had gone mad' she was later quoted as saying (Lang 1984).
One of the prisoners said he had spent a week in hospital as a result of his injuries. Another said his head had been slammed repeatedly on the concrete until he passed out. John Pat, however, was less fortunate.
He was taken to the police lockup, and a little over an hour later, when police sought to check on him, he was dead. A subsequent autopsy revealed a fractured skull, haemorrhage and swelling as well as bruising and tearing, of the brain. Pat had sustained a number of massive blows to the head. One bruise at the back of his head was the size of the palm of one's hand; another, above his right ear, was perhaps half that size. Five other bruises were visible on the right side of the head. In addition to the head injuries, he had two broken ribs and a torn aorta, the major blood vessel leading from the heart. The autopsy also showed that the dead youth had had a blood alcohol reading of .222.
The death of John Pat was but a recent chapter in the history of bad relations between police and Aborigines in Western Australia. Controlling the Aboriginal population was perhaps the central task of the Western Australian Police during the early colonial period. Indeed, enforcing the system of indentured servitude which prevailed during the mid-19th century was an important function. To this end, police were vested with wide powers of arrest without warrant (Bolton 1981).
Increasing contact between the races, and growing availability of alcohol to Aboriginal people increased white authorities' inclination to control the behaviour of natives. Today, no less than in earlier years, Aborigines, who constitute less than 3 per cent of Western Australia's population, comprise one-third of the state's prisoners. One recent census of prisoners showed that on a given day, one out of every twelve male Aborigines in Western Australia between the ages of 19 and 29 was in prison (Mukherjee & Scandia 1988).
Police are traditionally loath to discuss the specific considerations which underlie the allocation of their resources. The fact that they respond more vigorously to public drunkenness by Aborigines than to domestic violence in white society suggests something about their priorities. Roebourne, by any standard, appears to have been characterised by saturation policing. In 1983 eight officers and two police aides were stationed in the town. The nearby 'white' town of Wickham had half as many police for twice the population. Indeed, the regional centre, Karratha, with a population of over 8,000 had only fourteen officers.
Nor were Roebourne police content to sit idly by. There was an almost constant police presence in and around the Aboriginal bar at the Victoria Hotel. The power of arrest for public drunkenness was exercised freely - recent years' totals approached 2,000 annually - nearly three arrests for every Aboriginal man, woman and child in the town.
Even if such scrutiny arises from the noblest of motives (a very questionable assumption) there can be little doubt that this style of policing is counterproductive. For 150 years, police were regarded as agents of oppression. They had come to be perceived as upholding one law for whites and one for blacks. In such a setting, the overbearing presence of police can contribute to an offence where none is imminent. Relatively minor incidents may escalate as a result of police involvement.
Tne history of abysmal relations between police and Aborigines in Western Australia is long and bleak. Punitive expeditions involving what amounted to summary execution have been documented well into the twentieth century (Western Australia 1927). In January 1975, a group of Western Desert people en route to ceremonies sought to travel through the town of Laverton. At Skull Creek, on the outskirts of town, they were intercepted by police who arrested most if not all of the able-bodied men in the group. A Royal Commission concluded that the arrests were unjustified and that much of the evidence given by police in subsequent court proceedings had been fabricated (Western Australia 1975-76).
Discriminatory treatment in the arrest and prosecution of Aboriginal Western Australians has also been documented (Eggleston 1976). At Roebourne, in contrast to the nightly arrests at the Aboriginal bar of the Victoria Hotel, a former barmaid related that despite occasional fights involving flying jugs, tables and chairs in the saloon bar, she recalled only one arrest of a white customer.
It is hardly original to suggest that traditionally, police in Australia had been recruited more on the basis of their physical bulk than on their skills in human relations. Whatever the case in Western Australia, serious questions were raised about the adequacy of police training in Aboriginal affairs and in their relations with indigenous peoples. A formal training program began in 1975, and involved police recruits attending lectures by anthropologists, officers of the Department of Aboriginal Affairs, and senior police. When it was established, the program involved ten lectures in the course of a thirteen-week curriculum. At the time of John Pat's death, recruits received four lectures during a fifteen-week course. A survey of Roebourne police after the incident revealed that their knowledge of local history was limited (Roberts et al. 1986, p. 118).
Another difficulty which may have contributed to the hostility between Aboriginal residents and police at Roebourne concerned the suitability of those officers posted to the town. Police work in contemporary Australia has become extraordinarily diverse and often highly specialised. Whilst most police are expected to acquire a broad base of experience in the course of their career, they themselves admit that not all police are suitable for working with Aborigines. Some harbour strong prejudice against and deep dislike of Aboriginal people.
Although recruitment interviews seek to identify racist sentiments, racial prejudice is not grounds per se for disqualification from recruitment to the Western Australian Police. Screening of officers for posting to areas where they are likely to have significant contact with Aboriginal people also appeared to be inadequate (Roberts et al. 1986, p. 112). Compounding this were the procedures for selecting senior officers to serve in towns with significant Aboriginal populations. Seniority, rather than interpersonal skills or previous experience in Aboriginal communities, appeared to be the governing principle.
Poor leadership can transform bad police-community relations into overt hostility. Some indication as to the quality of leadership by senior police at Roebourne may be gleaned from comments attributed to a sergeant who appeared at the inquest into John Pat's death. He approved of grabbing Aborigines by the hair because 'when Aborigines get stirred up and looking for a fight, they tend to get very greasy and slippery'.
Senior police were quickly notified of John Pat's death; an inspector and detective sergeant arrived from Karratha within two hours. Two others flew from Perth the following day. One was told that the deceased had fallen heavily from the police van at the lockup.
A coroner's inquest began on 31 October 1983. The four officers and the police aide who were involved in the events leading to Pat's death drafted prepared statements denying that they had used excessive force on the night in question. Beyond this, they were disinclined to assist the coroner in his inquiry; each declined to answer questions or to give evidence. Also perhaps indicative of some lack of enthusiasm to cooperate in the investigation was the fact that the jeans and shirts worn by the arresting officers were not made available for forensic tests until one month had elapsed. By this time the clothing in question had been washed, and it was no longer possible to conduct analyses of any previous stains.
The inquest heard evidence from seventy witnesses over twenty-one hearing days. There were significant discrepancies between the evidence of Aboriginal witnesses and the official police version of events. Witnesses described Pat as having been dragged to the police van at the time of his arrest, and as having been dragged from the van to the police lockup. According to the evidence of one police officer, Pat, after having fallen from the police van, walked to the lockup and spoke coherently. A medical officer testified that a person with Pat's head injuries would be unlikely to walk or speak coherently, especially given a blood alcohol reading of .222.
A number of other inconsistencies or irregularities emerged during the inquest. Details of injuries to prisoners were not recorded at the time of their having been taken into custody. A senior government technologist testified to having found traces of human blood of the same blood group as John Pat on the boots of two of the police involved in the skirmish. There was no evidence of Pat's being assaulted by anyone other than the police.
On 6 February 1984 the five accused were committed for trial on charges of manslaughter. Consistent with police procedure they were suspended from duties without pay from the time of the committal. The police union quickly approached the Western Australian Minister for Police and persuaded him that the accused should be suspended on full pay, lest the spouses and children of those still presumed to be innocent suffer undue financial hardship.
The charges were heard in the Supreme Court at Kaffatha on 30 April 1984. Because of the nature of the trial, great care was taken in selecting the jury. The normal procedure for enrolling prospective jurors (door-knock visits by local police) was for obvious reasons deemed inappropriate. Instead, the Karratha Clerk of Court selected 140 names at random from the electoral rolls of Karratha, Dampier, Wickham and Roebourne. As jury service was optional for women, almost half of the 140 prospective jurors excused themselves. Of the three Aboriginals on the list, only one was called for jury service. When he disclosed that he was acquainted with one of the accused, he stood aside.
Eventually, an all-white jury of twelve men and three women was empanelled; the total included three reserve jurors, who were added because of the anticipated length of the trial.
Each of the defendants testified under oath; each maintained his innocence, as well as that of his co-defendants. The constable alleged to have dragged a prisoner by the hair denied having done so. The constable who was alleged to have provoked a fight with Ashley James denied having done so. One defendant told the court that when he had escorted Pat to the cell, he had no suspicion that Pat had been injured. Each of the accused maintained that no more force was used than was necessary. Any punches thrown by police were thrown in self-defence.
The Crown case was weakest when aggressive cross-examination of Crown witnesses reflected adversely on their credibility. Aboriginal people are often less than effective witnesses when confronted by a skilled barrister. Some Aboriginal witnesses are inherently bashful and inclined to 'yea saying'- to respond as they imagine the questioner would have them. Those not fluent in English and without an interpreter are more vulnerable than most to a crafty lawyer's semantic ambush (Foley 1984, pp. 164-9). One of the persons arrested along with John Pat testified that he saw one constable holding Pat by the hair and slam his head against the concrete footpath.
Under cross-examination, he admitted that he had not actually seen the attack: 'I didn't see it but I could hear the sounds'. The witness then conceded that he was trying to get the police into trouble.
... Is it fair to say that you are prepared to tell lies from what people have told you and say you saw things you didn't see simply to get the police into trouble?...... Yes (Western Australia 1984, p. 362).
The defence seized upon this admission, and sought to discredit the other Aboriginal Crown witnesses. They were destined to succeed. The trial concluded on 24 May 1986, after fifty-seven witnesses had given evidence. Upon hearing the judge's instructions, the jury retired to consider its verdict at 12.15 pm. After some deliberations, they returned and asked the judge if a police officer was on duty twenty-four hours per day. They were advised that any police officer, on or off duty, who saw a breach of the peace occurring would have an obligation to do something about it. After hours of further deliberation, the jurors requested the judge to repeat the legal definitions of manslaughter and accident. Finally, at 7.15 that evening, the jury returned with its verdict: all of the accused were not guilty.
The verdict was met with outrage on the part of Aboriginal groups. There were calls for a Royal Commission and threats to publicise the case in international forums such as the World Council of Indigenous Peoples and the United Nations. Tensions between Aborigines and police were high. Police announced their intention to proceed with charges arising from the brawl outside the Victoria Hotel against four Aborigines who had given evidence for the Crown at the trial. The state premier appealed for calm.
On 19 July 1984, charges were heard against those Aborigines who were arrested with John Pat the previous September. Ashley James, unemployed, pleaded guilty of assault and resisting arrest, and was find a total of $370 with $27 costs. Another accused was found guilty of hindering police and fined $40 with costs of $32.27.
In dismissing charges against two others, the magistrate stated that he could not accept the evidence of one of the recently acquitted police officers, choosing instead to accept the evidence of a local health officer who testified that he saw the officer walk up to the accused and punch him in the stomach. Inspired by the magistrate's findings, and in light of the government's reluctance to pursue further remedies, the Aboriginal Legal Service undertook private prosecutions, seeking to charge three of the police with assault. In the first of these cases, against Constable Young, two of the officers refused to give evidence on the grounds of potential selfincrimination, and having applied successfully for certificates under Section 11 of the Evidence Act 1906 (WA), were thus granted immunity by the presiding magistrate. Charges against Constable Young were then dismissed by the Magistrate. With the other two police immunised against prosecution, remaining charges were withdrawn by the Aboriginal Legal Service.
In addition to the formal criminal charges of which they were acquitted, the defendants in the Pat case were liable to internal disciplinary proceedings under the Police Act 18921982 (WA) and the Police Regulations 1979. The officer in charge of internal affairs at the time, Chief Superintendent Brian Bull, had sat through the entire trial. A fortnight after the acquittal it was announced that no further action would be taken against the men.
In the aftermath of the acquittals, the government sought to modify procedures for investigating complaints against police by increasing the powers of the state Ombudsman. The involvement in the investigations of alleged police misconduct of an external authority as prestigious as the Ombudsman is regarded by police generally as more than a little annoying. To propose that the Ombudsman be provided with greater powers to this end is to threaten in the extreme. Western Australian police sought to mobilise their considerable political influence to defeat the proposed legislation. The general secretary of the union organised a media campaign, involving speeches to local civic groups and contacts with sympathetic members of Parliament. The union also produced a striking television advertisement designed to elicit public opposition to the bill. The advertisement showed a brick wall with the words WESTERN AUSTRALIAN POLICE FORCE painted on it in crisp white letters. An ominous voice warned 'Right now, legislation that could destroy the effectiveness of your police force is before Parliament'. The camera then focused on the head of a very hefty sledgehammer with the word OMBUDSMAN printed across it in block letters. As the sledgehammer strikes the wall, the voice warns 'The Complaints Against Police Bill will give the Ombudsman far reaching powers. Police under investigation will be guilty until proven innocent. Young police men and women will be hesitant to take risks with their careers'. By this time, the wall is largely demolished, revealing a forlorn constable wearing a pair of handcuffs. The ominous voice concludes 'Write to your local MP today'. The police union's campaign was successful; the proposed legislation was blocked by the oppositioncontrolled upper house (Marr 1985).
Buoyed by this victory, the union continued its attack on the Aboriginal Legal Service. In November of 1985 police union delegates from around Australia called for a parliamentary inquiry into the alleged abuse of funds by the Aboriginal Legal Service. The following year, they called for its outright abolition.
In addition to their political victories the police union succeeded in recovering the financial costs it had incurred in supporting the legal defence of the accused officers. In July 1984 state Cabinet agreed to reimburse more than $136,000 in legal fees, including $54,000 incurred during the inquest and $82,000 incurred during the trial.
In the aftermath of the John Pat case, a number of administrative reforms were introduced which were intended to lessen the tensions between the police and the Aboriginal citizens of Western Australia. State government revived a special cabinet committee on Aboriginal/police and community relations which had been established in 1976 following the Royal Commission into the Laverton Skull Creek incident. A 'summit meeting' between senior police and Aboriginal representatives was convened.
The Minister for Police announced that greater care would be taken in selecting officers in charge of stations in country towns with significant Aboriginal populations. Criteria for selection included the ability to communicate effectively with Aborigines, and to control their officers to prevent the use of undue force in making arrests (Roberts et al. 1986, pp. 111-112).
The Western Australian Institute of Technology was invited to develop a ten-hour Aboriginal affairs module for the police recruit training curriculum. The course would address Aboriginal culture and social conditions, customary law, resources and services for Aboriginal groups, and skills for interacting with and communicating with Aboriginal people (Roberts et al. 1986, p. 114).
At Roebourne itself, a new sergeant was placed in charge of the police station in July 1985, and those police who had been acquitted in the John Pat case were transferred elsewhere. The new sergeant in charge, a veteran of twenty-six years with considerable fondness and respect for Aboriginal people, was described as 'the law enforcer with the tender touch' (Lague & Mokrzycki 1986). He sought to win the confidence of local residents by being accessible and friendly, and through such charitable gestures as providing food and firewood to local residents. A photograph showed him hand in hand with an Aboriginal child. Prisoners assisted him with various odd jobs. Within two years, however he left for another station.
By 1986 a report to state Cabinet concluded:
Currently relations between police and Aborigines in the Pilbara are in a state of uneasy truce. That is, whilst no serious outbreaks of open hostility have occurred since the death of John Pat, the potential for serious violence exists (Roberts et al. 1986, p. 181).
There have been other Aboriginal deaths in custody since the night John Pat died. These, singly and collectively have given rise to public protests and to calls for judicial inquiries, and renewed calls for Aboriginal land rights. A Western Australian government inquiry (Seaman 1984) recommended the granting of land rights to Aborigines. The recommendations were rejected by the state government. In 1987, the federal government appointed a Royal Commission into Aboriginal deaths in custody. Brian Bull is now the Western Australian Commissioner of Police. And the police union in Western Australia continued to call for the abolition of the Aboriginal Legal Service.
- Bolton, G.C. 1981, 'Black and White after 1897', in A New History of Western Australia, ed C. T. Stannage, University of Western Australia Press, Perth.
- Eggleston, Elizabeth 1976, Fear, Favour or affection: Aborigines and the Criminal Law in Victoria, South Australia, and Western Australia, Australian National University Press, Canberra.
- Foley, Matthew 1984, 'Aborigines and the Police', in Aborigines and the Law, eds P. Hanks & B. Keon-Cohen, George Allen & Unwin, Sydney, pp. 160-90.
- Lang, M. 1984, 'QC Tells of Brutal Attack', The West Australian, 1 May.
- Lague, D. & Mokrzycki, J. 1986 'Roebourne's Tough Cop has a Heart of Gold', Western Mail, 22-23 February, 8-9.
- Marr, David 1985, 'Black Death', Four Corners, ABC Television.
- Mayman, Jan 1984, 'Back to the Dreaming', The Age, 25 June.
- Mukherjee, Satyanshu & Scandia, Anita 1988, Crime Digest No. 88. 1, Aboiiginal Imprisonment, Australian Institute of Criminology, Canberra.
- Roberts, L., Chadbourne, R. & Murray, R., 1986, Aboriginal Police Relations in the Pilbara: A Study of Perceptions, Criminology Research Council, Canberra.
- Seaman, Paul, Q.C. 1984, The Aboriginal Land Inquiry, Government Printer, Perth.
- Western Australia 1927, Royal Commission of Inquiry into Alleged Killing and Burning of Bodies of Aborigines in East Kimberlies and into Police Methods when Effecting Arrests, Report, (G.T. Wood, Commissioner), Government Printer, Perth.
- Western Australia 1975-76, Royal Commission Enquiring into Events at Laverton in December 1974 and January 1975 Concerning Aborigines and the Police and Other Associated Matters, Report, (G.D. Clarkson, Chair), Government Printer, Perth.
- Western Australia 1984, The Queen Against Terrence James Holl, Steven Alan Bordes, Ian Frank Armitt, James Young and Michael Walker: Proceedings, Supreme Court of Western Australia, No. 31.