'I can't breathe': civil case begins over alleged 'unnecessary and unreasonable force' during strip search at AMC

A Ngunnawal woman is suing prison authorities over what her lawyers called “cruel, degrading and inhuman conduct” during a strip search in 2021.

Opening submissions were heard in the ACT Supreme Court on Monday (6 March), with Julianne Francis Williams’ lawyers arguing her human rights were breached and that she was denied procedural fairness when she was at the Alexander Maconochie Centre (AMC).

She’s claimed the Human Rights Act 2004 was breached on four occasions: when she was denied permission to attend her grandmother’s funeral, when that decision wasn’t reviewed, when “unnecessary and unreasonable force” was used when officers tried to conduct a strip search, and that there was an appropriate alternative to the eventual strip search.

Her claim is against the Justice and Safety Directorate Director-General and two other prison officials.

Barrister Mark Dennis SC opened his submissions with the words, “I can’t breathe”.

Alluding to the death of George Floyd in the United States, Mr Dennis said: “Once spoken by a person of colour … the person who said the words ‘I can’t breathe’ [in this instance] was the plaintiff [Ms Williams].”

Ms Williams was being held at the AMC when she learned on 6 January 2021 that her grandmother had died.

Mr Dennis said his client had applied for funeral day leave to attend the ceremony across the border, but when she heard that permission had been denied, she became “acutely distressed and highly emotional” and had threatened “self-harm”.

Shortly after, she was transferred to the centre’s crisis support unit.

Mr Dennis outlined that one prison officer saw her on 12 January “fiddling with toilet paper” and “putting her hands down her pants”.

Given Ms Williams’ previous mental health history and threats of self-harm, he “made the assertion” she could have a seizeable item, such as a razor blade.

However, Mr Dennis submitted Ms Williams was menstruating and didn’t have access to a tampon or sanitary pad.

“No officer asked the plaintiff what she was doing, why she was doing it or whether she had any seizable item she’d like to declare,” he submitted.

One argument to be explored will be whether the officer had a “reasonable suspicion” she was hiding such an item and if it was policy for inmates to be strip searched when they entered the crisis unit.

“Whatever suspicion might have been, it wasn’t one that was reasonable,” Mr Dennis submitted.

“There’s no lawful justification for the use of force for the strip search … [and whether there’s a policy], in both cases it’s unlawful.”

Mr Dennis described what happened when officers tried to conduct the strip search as “utterly chilling”.

“A knife was taken to this use of force … a Hoffman knife,” he claimed.

A Hoffman safety knife is used by paramedics, correction officers and other emergency services for cutting fabrics but, due to its design, can’t be used as a weapon.

“There’s no lawful basis for a Hoffman knife to be in [her] cell … that was contrary to law and contrary to policy.

“[Ms Williams] begged for mercy. Begged the officers to stop.”

During the incident, Ms Williams began to complain of chest pain and said she couldn’t breathe.

Mr Dennis submitted she had made three similar complaints to justice health in the seven days leading up to the incident, and she also had a pacemaker.

“[She began yelling] ‘I’ve got pains, I’ve got pains in my f***ing chest,” he said.

“She was filled with utmost fear and utmost terror … she screamed, yelled and screeched for mercy at the top of her voice.”

Footage of the incident was played to the court, but it cannot be published until after the hearing.

Ms Williams eventually calmed down and agreed to go with a different officer to a bathroom for the strip search rather than have it occur in her cell.

What happened next is also in dispute.

Ms Williams has claimed she was told to remove her clothes and “squat and cough”; however, the officers say she didn’t have to do that.

It’s also claimed Ms Williams was made to put her finger in her mouth to prove she had nothing hidden there.

“[That] puts it into the realm of a body search,” Mr Dennis submitted.

“The body search was also unlawful.”

In her opening submissions, counsel for the ACT Government Houda Younan SC said what had been submitted by the plaintiff’s legal team was a “heady cocktail of assumption and speculation”.

She submitted Ms Williams had made several threats to her life in the days leading up to the incident, including that she would “rip out” her pacemaker and that it wouldn’t matter “how long you watch me for … I’ll do it”.

“That context is critical,” Ms Younan said.

“[The search was] in response to conduct of the plaintiff in detention, and we say it was a reasonable response to that conduct.”

Ms Younan argued Ms Williams’ claimed period did not “somehow negate other possible explanations” for her behaviour in the lead-up to the strip search.

“We do not know whether or not the plaintiff was menstruating at the time, but it’s neither here nor there,” she said.

“She could have been menstruating at the time and also concealing a weapon.”

She submitted Ms Williams had also refused to engage with mental health professionals.

As for the funeral leave, it was questioned if Ms Williams submitted the correct paperwork, and even if she had, leave could still have been denied as she was serving a head prison sentence.

Ms Williams had also been on remand for a separate incident at the time.

Body scanners weren’t available at the AMC at the time of the incident in 2021.