Aboriginal and Torres Strait Islander readers are advised this article contains images and names of people who have died.
Noongar woman Winnie Hayward is still coming to terms with the police chase that ended with her son and his best friend drowning in Perth’s Swan River in September 2018.
Her son Christopher Drage, 16, and Trisjack Simpson, 17, were among a group of five boys reported to police after they were spotted jumping neighbourhood fences in Maylands, a suburb to the east of Perth.
Two patrol officers, constables Lindsay Jeffree and Ella Cutler from the Western Australia Police Force, suspected the boys had broken into nearby houses and chased them on foot. A witness described the boys as appearing “frightened” and “distressed” as the police pursued them.
Moments later, they made the perilous decision to jump into the Swan River to escape. 
One of the boys swam the approximately 100 metres to reach the opposite shore. Another realised the danger of the strong currents and cold temperature and remained by the shore where he could still stand in waist-deep water. But two others, Christopher and Trisjack, only just made it past the halfway point before being overwhelmed by the current.
Christopher Drage drowned in Perth's Swan River. Source: Aaron Fernandes, SBS News
Devastated by the loss of the young lives, Ms Hayward and the other families impacted waited more than two years for a coronial inquest to be held. Completed in March this year, it examined through witness testimony whether police actions contributed to the deaths of the two boys.
The inquest heard the two constables stayed on the shore and didn’t jump in to save the drowning boys because they couldn’t leave their weapons unattended. Two tactical response group officers did enter the water when they arrived on the scene shortly after, but it was too late to save the boys.
A huge search operation later recovered their bodies from the water.
“The inquest was tiring. The days were long,” Ms Hayward says. “It gave me a bit of an answer as to what happened, but not enough. I still believe that more could have been done to save them kids. They didn’t deserve to go the way they did.”
She says the two constables “were too focused on [trying to arrest] the boy that was closest to the bank, instead of what was happening on the other side of the river”.
WA Police Detective Sergeant Roy Begg, who oversaw the investigation, told the inquest he didn't fault the constables for not entering the water to attempt to save the boys and that conditions were extremely challenging.
'Minor offences'
The deaths of Christopher and Trisjack were classified as a ‘death in police presence’, which the WA Police Commissioner said at the time would be treated the same as a death in custody. Their story is one of many across Australia where suspicions of a minor offence by an Indigenous person led to an interaction with police that resulted in tragedy.
The Australian Institute of Criminology classifies a death in police custody as either Category 1, deaths in situational settings (police vehicle, lockups) or where police were in close contact with the deceased (including raids and shootings); or Category 2, where officers did not have such close contact, including pursuits or attempts to detain a person.
Over the past 30 years, more than half of all Aboriginal people who died in police custody were apprehended for low-level offences. The statistics are contained in the Australian Institute of Criminology’s (AIC) .
In the 30 years from 1989-90 to 2018-19, the AIC recorded 858 deaths in police custody, including 168 Aboriginal deaths in police custody.
Among the 168 Aboriginal deaths in police custody, 53, or around one third, were suspected of having committed a theft-related offence. Nearly a quarter (39) of all Aboriginal people who died in police custody were suspected of committing a "good order offence" such as alcohol-related offences, disorderly conduct or unpaid fines.
It means more than half of the deaths (92 of 168) have followed allegations of minor offences.
Over the same period, a non-Indigenous person who died in police custody was most likely to have committed a serious, violent offence (22 per cent) followed by a theft-related offence (17 per cent).
A protest in Perth in support of the Black Lives Matter movement. Source: Aaron Fernandes, SBS News
Aboriginal people who died in police custody were also significantly younger - on average aged just 22 at the times of their deaths - compared to an average age of 36 years for non-Indigenous offenders.
George Newhouse, a Sydney-based lawyer with the National Justice Project, has represented several Aboriginal families impacted by deaths in police custody, including Ms Hayward.
He says the disparity in the nature of offending by people who died in police custody is a clear sign that Aboriginal people are being over-policed and pursued for minor infringements that non-Indigenous people wouldn’t be pursued for.
“Police are a funnel, or a gateway, for the criminal justice system, and it's that over-representation of people in police interactions that ultimately may lead to these deaths in custody.”
“What those statistics show is that Aboriginal and Torres Strait Islander people end up in the justice system for very minor crimes, whereas a non-Indigenous person is unlikely to even have that interaction with police.
Source: SBS
“If you’re a non-Indigenous person, you have to commit a serious violent crime before you end up in the police lockup.”
Under the AIC’s definitions, violent offences include homicide, assault, sex offences, other offences against a person and robbery. Theft-related offences include break and enter, other theft, property damage and fraud.
Aboriginal and Torres Strait Islander people end up in the justice system for very minor crimes, whereas a non-Indigenous person is unlikely to even have that interaction with police. - George Newhouse, Lawyer
Mr Newhouse says police across Australia aren’t using their discretion to divert Aboriginal offenders away from the criminal justice system and deescalate a situation.
“When the police see a crime committed, they don’t have to arrest you, they can give you a warning. There’s a lower proportion of Aboriginal people that get warnings than non-Indigenous people,” he says.
“If they do decide to charge you with an offence, they don’t have to arrest you. For example, if you get pulled over for speeding, police will give you a fine or a notice to attend court, but they won't arrest you.
“With some offences, particularly alcohol-related offences, Aboriginal people are being arrested rather than receiving court attendance notices. That means they’re being unfairly treated, they’re being incarcerated rather than diverted from the criminal justice system.
“Police are using these very minor laws, very minor offences, to stop, search and harass Aboriginal and Torres Strait Islander people and that is the gateway to incarceration. Our parliaments have granted police very extreme powers with very little oversight”.
WA's record
The Western Australia Police Force recorded the highest number of Aboriginal deaths in police custody (51 of 168) of all states and territories over the 30-year period recorded by the AIC.
Aboriginal people make up nearly half of all of Western Australia’s deaths in police custody (42 per cent), and the average number of Aboriginal deaths in police custody each year in the state has not declined since 1989, with three deaths recorded in the last annual reporting period.
The state has also seen some of Australia’s most high profile Aboriginal deaths in police custody.
In 1983, 16-year-old John Pat was beaten to death by four off-duty police officers in the northwest town of Roebourne, a case that is widely regarded as launching the Royal Commission into Aboriginal Deaths in Custody.
The officer accused of murdering Yamatji woman Joyce Clarke has entered a not guilty plea during an administrative committal hearing in Perth. Source: NITV
In 2014, 22-year-old Yamatji woman Ms Dhu died in a police lockup in South Hedland while serving time for unpaid fines.
In 2019, 29-year-old Yamatji woman Joyce Clarke was shot and killed by a police officer responding to a disturbance. The officer has since been charged with murder and would become the first Western Australian police officer to ever be held criminally responsible for an Aboriginal death in custody if convicted. The officer has pleaded not guilty and no trial date has been set.
WA Police did not respond to questions from SBS News about its record, but says it has taken "significant steps to enhance the relationship between police officers and the Indigenous community, including the development of a Reconciliation Action Plan and the establishment of the Aboriginal Affairs Division”.
Menang-Noongar woman Megan Krakouer is director of the National Suicide Prevention and Trauma Recovery Project.
“The relationship [between police and Aboriginal people] is terrible," she says. "People are scared of the police, young people run from the police. It comes back to the original sin of this country; the colonisation of our people.”
Ms Krakouer has supported several Aboriginal families in and around Perth that have been impacted by deaths in custody, and many others struggling with poverty and homelessness. She says the over-representation of minor offence allegations among Aboriginal deaths in police custody is due to the overwhelming poverty experienced by many Indigenous Australians.
“I see it every day, working on the streets working in homes where there are four or five families because they have nowhere else to go,” she says.
Megan Krakouer says poverty is the primary cause of low-level offending. Source: Aaron Fernandes/SBS News
“It's not just a policing issue. It’s a Department of Justice issue. It’s a Department of Housing issue. It’s a Department of Health issue, and the Department of Child Protection.”
“It is a whole of government issue, both state and federal. They’re failing our people and we’re seeing the impacts of it”.
Families impacted by Indigenous deaths in custody are expected to speak at a rally in the Perth CBD on Thursday, to mark the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody being handed down.
After the death of her son in the Swan River, Ms Hayward is now waiting for the coroner’s report to be handed down, which may contain recommendations for changing police practices during pursuits or improving relationships with Aboriginal communities.
A memorial by the banks of the Swan River. Source: Aaron Fernandes, SBS News
It’s a cultural change that Ms Hayward says might have saved her son if it had been started years earlier.
“Things can be replaced, but human life can’t be. Our kids didn’t deserve to die.”
