After a two-week inquest last year into the Aboriginal grandmother's death, Victorian coroner Caitlin English said in her findings last week there was the possibility an indictable offence had occurred.
“Ms Day's death was clearly preventable had she not been arrested and taken into custody,” Ms English said.
Ms Day's children Belinda, Apryl and Warren had mixed feelings watching the findings over videolink in Wodonga.
“Overall we’re pretty happy with the recommendations, but a bit disappointed she didn’t call out the systemic racism of Victoria Police because it clearly contributed to Mum’s death,” Belinda said.
The Yorta Yorta woman fell and suffered a head injury while in the Castlemaine police station after she was arrested for being drunk on a train in December 2017.
She died in hospital two weeks later.
On Thursday, Ms English said under the totality of evidence, an "indictable offence" of negligent manslaughter "may have been committed".
It comes after Ms English found V/Line train conductor Shaun Irvine made a "snap decision" to label Ms Day as "unruly" and request police attendance.
“It is open to me to draw the inference that Mr Irvine's decision-making was influenced by an unconscious bias and immediately deciding Ms Day was unruly ... without considering other options,” she said.
“I find the decision to define her as unruly and to call for police rather than pursue other options has been influenced by her Aboriginality.”
But she did not find the police officers who took Ms Day from the train platform and arrested her showed systemic racism in their decision.
The decision to arrest the Aboriginal woman was made under time pressure, Ms English said.
“I am not satisfied there is any evidence to support a finding that Ms Day's Aboriginality played a role in this decision-making,” she said.
However, she found once the grandmother was in the Castlemaine police station, they did not consider the risk of falls.
Ms English said on-duty police did not conduct adequate checks and the quality of checks did not meet Victoria Police Manual guidelines.
“Ms Day was vulnerable in custody owing to her Aboriginal heritage,” she said.
Ms Day's family has been pushing for a criminal investigation into the events that day, arguing racism was a factor and their mother’s catastrophic injuries were caused by neglect.
“We’re pleased their making a referral for a criminal investigation, but that means there’s still a fight to be had and we’re up for a fight,” Belinda said.
“We will continue to fight it all the way.”
Apryl said she believed her mother would still be alive if she was a non-indigenous woman.
“Our aim is to stop deaths in custody from happening,” she said.
“The Royal Commission has found that of the 425 deaths in custody, not one person has been charged. How many more have to die before someone is held accountable?”
While it had been a harrowing process for the family, Ms Day’s children said the referral was the first step towards justice.
“It seems like it’s never going to end, but at the end of the day, we were put in an unfortunate situation and we agreed we were all going to continue to fight for justice,” Belinda said.
“We haven’t got justice, so the fight continues.
“I think Mum would have be proud that we continued the fight for her.
“She was always strong in her advocacy and her passion and strength has passed onto us and we will continue to have her in our heart.”
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