Releasing footage of the final hours of Ms Dhu’s life, before her death in custody in 2014, would be an “act of respect” for the young Indigenous woman, a court in Western Australia has heard.
The WA state coroner on Wednesday reserved her decision on whether to release the video footage, which showed Dhu, whose first name is not used for cultural reasons, crying in pain, limping through hospital corridors, hitting her head on the floor of a concrete cell and being dragged “like a dead kangaroo”.
It was shown multiple times in open court during the inquest into the 22-year-old Yamatji woman’s death, which Fogliani presided over for four weeks in Perth in November and March.
Robert Dhu, Dhu’s father, told the coroner through his lawyer that far from being disrespectful to his daughter, publishing the footage of her last days “in the hope that it would minimise the chance of this occurring again … he considers that an an act of respect for Ms Dhu.”
“I think he would be very disappointed if it was not released,” his lawyer said.
Fogliani said at a hearing to release the footage to the media on Wednesday that she would reserve her decision until a later date, and that her concerns were whether the footage would cause any distress to Dhu’s family, and whether it would confuse any possible findings she might make about the case.
Dhu died on 4 August 2014, about 44 hours after being arrested at Port Hedland, 1,650km north of Perth.
She was supposed to remain in custody for four days to “pay down” $3,622 in unpaid fines. It was her first time in custody.
She complained of severe pain about three hours into that 44-hour stretch and was taken to South Hedland hospital – which sits beside the South Hedland police station cells where she was being held – but was assessed as being fit to be held in custody.
A second visit to hospital on the evening of 3 August had the same result. By her final trip to hospital, at 12.30pm on 4 August, she was unable to walk and was carried, while handcuffed, by two police officers to the waiting police van, because the station did not have a stretcher or a wheelchair.
She was assessed as having gone into cardiac arrest when she arrived at the hospital and was declared dead at 1.39pm. Her death has been attributed to staphylococcal septicaemia and pneumonia linked to an infection in a broken rib but Fogliani is yet to hand down her findings.
CCTV footage from the police station and the hospital captured that final half-hour.
In a short statement outside court on Wednesday Dhu’s grandmother Carol Roe, stood with Dhu’s mother, Della, and said: “Black lives matter … I want the truth and the justice for my grandmother.”
The mother and grandmother of #MsDhu ahead of a hearing to decide whether CCTV of her final days can be released pic.twitter.com/0W4N9NQpq8
— Clarkie1972 (@Clarkie1972) September 28, 2016
After the hearing, Roe said she was “devastated” by the further delay.
The Aboriginal Legal Service of WA (ALSWA), acting for Ms Dhu’s family, filed a renewed application to release the footage last month.
That application was supported by a number of media organisations, including Guardian Australia, and advocacy organisations, including the Deaths in Custody Watch Committee of WA, which filed separate submissions supporting its release.
In separate submissions, lawyers for the ABC, Guardian Australia, and other commercial media outlets argued that the footage should be released in accordance with the principle of open justice.
Ruth Barson, from the Human Rights Law Centre, which supported ALSWA in its application, told Radio National on Wednesday morning that it was “absolutely haunting”, the most confronting footage she had seen.
“There’s absolutely no doubt that it is confronting and disturbing, but Australia cannot ignore how this young woman and other Indigenous people are treated by the criminal justice system,” Barson said.
It was the third time Fogliani had ruled on an application to release the footage. The first application, during the first two weeks of the inquest in November last year, was opposed by the family on the grounds that it could be distressing. Her father’s side of the family were particularly opposed, saying it would be “disrespectful to the memory of Ms Dhu”.
Both sides of the family supported a subsequent application in March, on the final day of the inquest.
But on that occasion Fogliani ruled against the release of the footage on the ground that it may “take family members by surprise and it may shock them in years to come”.
In the decision on the March application, she also warned the family that they would not be able to control the use of the footage once it was released, and said she was concerned about cultural sensitivities and the impact it may have on the broader Aboriginal and Torres Strait Islander community. The potential “embarrassment or exposure” of police officers was not a consideration, she said.
“All of the images of here is when she is fragile, vulnerable and when her health is in a state of decline,” she said.
“Her suffering was extreme and it was a great tragedy. Whilst I realise the legitimate interests of the media outlets in reporting … on this case the media requests are denied.”
Dhu’s uncle Shaun Harris criticised that decision as paternalistic. Dhu’s family understood better than anyone how “shocking, saddening and angering” the footage is, he said, that’s why they wanted it released.
Dhu’s family travelled from Geraldton and Port Hedland in regional WA to attend the hearing.
