A photo of Yorta Yorta woman Tanya Day, who died in police custody in 2017 (Image: AAP/David Crosling)

The first time I met Nancy*, I assumed she was drunk. She was wobbly on her feet, she was slurring her consonants and was having trouble focusing. Her breath smelled unpleasantly fruity.

Police arrived, saw she was drunk. They checked her domestic violence order (DVO) conditions — yep, she’s in breach. They arrested her, breath-test. Multiple attempts. Not enough breath for a reading. I looked up again. Poor woman’s an alcoholic, I said to myself. She can’t even stay off the juice for court.

The DVO had been made 10 months earlier, to protect her husband from her, and included a condition that she couldn’t drink alcohol. I turned to the back of the brief and scanned her criminal history. One, two… she’d already breached her DVO twice. I looked up at her. A third breach? Of the same condition? In front of this magistrate? Mandatory sentencing laws would apply. This woman was going to prison. Just for being addicted, I raged.

“Do you know that if they prove the charge — if the judge says you’re guilty of drinking — you’ll probably go to jail?”

“But I wasn’t drinking,” Nancy said, her tongue tumbling over her lips. “I don’t drink grog.”

I looked at her. I glanced again at her priors. “Nancy…”

Her smile was fading. “I don’t drink grog,” she repeated.

Four weeks later, I was in the office preparing to head down to court. My colleague, a client services officer who knows everything about everyone in town, saw her name on the list. “They’re not trying to get her with drinking are they?” They were. “Again,” I added.

“But there’s no evidence, right?” my colleague asked. I scanned through the brief again. “Cops both observed slurred speech and bloodshot eyes and smelled grog on her breath.” My colleague exploded.

“But she doesn’t drink! She had that stroke a few years back. She always looks like she’s pissed, but she’s not!”

My assessment of Nancy’s sobriety was entirely wrong. That may not be all that surprising. I’ve never been trained to detect symptoms of intoxication. But first responders — even doctors and nurses — often have trouble with this, too. It can be difficult to assess the difference between someone who’s drunk, a stroke survivor, someone who’s sleep-deprived or has a serious condition. Research shows that mistakes are made, and we know race and socio-economic status can play a role in such subjective assessments too.

So why do we have laws which imbue police officers with powers to assess, arrest and even detain people they believe are intoxicated? A high-profile inquest in Melbourne is now asking how it was that Tanya Day, a 55-year-old Yorta Yorta woman, was arrested for being drunk on a train, detained in a Castlemaine police cell to “sober up”, hit her head on a concrete wall and eventually died of bleeding on her brain.

It’s been years since I practised law in Victoria, but it’s pleasing to see the state is at long last repealing its draconian public drunkenness offence; an action called for nearly three decades ago by the Royal Commission into Aboriginal Deaths in Custody. But there are other laws still on the books around the country which lead to similar risks.

Take, for instance, the “protective custody” provisions in the Northern Territory’s Police Administration Act. This allows police officers to “apprehend” an intoxicated person, without arresting them, and “detain” them in a police cell for their own protection.

The power is only enlivened when a person “is unable to adequately care for him or herself” because of their intoxication. But, incredibly, written into the very definition of “intoxicated” is a subjective assessment by police officers.

Here’s a common sequence in the Northern Territory, and probably everywhere else. Police come across a person who they think is drunk in public. They take her into “protective custody”. When they try to put her in a cell, she tries to escape — and ends up with “hinder police” and “assault police” charges, which generally see people sentenced to prison terms.

I ran one hearing for a woman in Katherine who had been charged after she kicked an officer in the shin inside the police station. The officer was behind her, trying to perform a bodily search before locking her in a cell. The CCTV footage shows her kicking back with her heel. In the end, we only secured a “not guilty” verdict because police officers hadn’t bothered to check whether the local Salvos’ sobering-up shelter was open before they took her straight to the police station.

How is it, in 2019, that we’re still comfortable with the idea that police officers can lock a person in a concrete cell to “sober up”? Most states and territories which have already decriminalised public drunkenness give police powers similar to the NT’s “protective custody” powers.

The policy intent behind these laws is clear — people too drunk to look after themselves should be taken care of — but it’s difficult to see why locking people in cells inside busy police watch houses is all that much better than leaving them be. It’s a difficult policy area, because often hospitals don’t want drunk people either.

One possibility is that governments seriously increase resources to organisations that run sobering-up shelters. In Victoria, Coroner Caitlin English will hopefully consider these alternatives in her eventual recommendations.

In the end, we managed to convince a judge to dismiss the breach DVO charge against Nancy. But he wouldn’t delete the condition banning her from drinking, despite the very real likelihood that it had been made in error.

“If she really is sober all the time,” he declared, “then she won’t have any problem complying with the order.” He missed the point, and I failed to get him to see it: what happens the next time a young police constable sees her wobbling, slurring her words and smiling through bloodshot eyes?

* Names have been changed.

Russell Marks is an honorary associate at La Trobe University, and has worked as a lawyer, a policy adviser, and a speechwriter.

Peter Fray

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