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Another Aboriginal death in custody: uneasy alliances and tensions in the Mulrunji case

Published online by Cambridge University Press:  02 January 2018

Jennifer Corrin  and
Heather Douglas
Jennifer Corrin
Affiliation:
International and Comparative Law, TC Beirne School of Law
Heather Douglas
Affiliation:
TC Beirne School of Law
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Abstract

The death of an Aboriginal man, Mulrunji, in an Australian police cell in 2004 precipitated an extraordinary response from the community. The usual distinctions between the roles of police, coroner, prosecutors and politicians became confused and merged in the media maelstrom that followed the death. Uneasy alliances developed which qualified the binary response of right versus wrong. Could the coroner's findings be reconciled with the decision of the prosecutor not to try the police officer involved? Was the government's response of overriding the decision of the independent prosecutor justified? What does this case tell us about the adversarial and inquisitorial approaches to evidence? This paper examines the tensions at play in the response to the death of Mulrunji and explores the wide reaching implications for law and justice in death in custody cases.

Type
Research Article
Information
Legal Studies , Volume 28 , Issue 4 , December 2008 , pp. 531 - 558
Copyright
Copyright © Society of Legal Scholars 2008

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References

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21. Ibid.

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35. Ibid.

36. Since 1990, 31 Indigenous people have died in police custody (one-third of all Indigenous deaths in police custody over the period), see Joudo, J Deaths in Custody in Australia: National Deaths in Custody Program Annual Report 2005’ (Canberra: Australian Institute of Criminology, 2006) p69.Google Scholar

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39. Peter Beattie, Ministerial Statement; Hansard, 6 February 2007, p 14 (emphasis added).

40. Bruce Flegg, Ministerial Statement, Hansard, 23 Feruary 2005, p 156.

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51. See Boe Lawyers Final Submission (to the inquest) on behalf of the Palm Island Aboriginal Council, 4 July 2006, p 22, available at http://www.boelawyers.com.au/documents/Palm%20Island/Coronial%20inquest/PIAC%20-%20Final%20Submissions.04.07.06.pdf (accessed 14 February 2008)

52. Coleman v Power (2004) 220 CLR 1 at 25 (Gleeson CJ), at 73 (Gummow and Hayne JJ), and at 99 (Kirby J).

53. Coleman v Power ibid, [180], [183], [193] per Gummow and Hayne JJ, and [224], [226] per Kirby J.

54. In Queensland incorporated in Summary Offences Act 2005 (Qld), s 6, ‘Nuisance’.

55. Australian Institute of Criminology National Police Custody Survey, Executive Summary (Canberra: AIC, 2002) p 13 Google Scholar, available at http://www.aic.gov.au/publications/tbp/tbp013/00_exec_summary.html; C Cunneen and D McDonald, above n 45, pp 114–116.

56. DPP v Carr[2002] NSWSC 194, per Smart AJ at [35]. Note also ss 790, 791 of the Police Powers and Responsibilities Act 1997 (Qld). English research has also noted this phenomenon; see also Deehan, Ann et al Drunks and Disorder: Processing Intoxicated Arrestees in two City-centre Custody Suites (London: Home Office, 2002).Google Scholar

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58. Feerick, C Policing Indigenous Australians: Arrest as a Method of Oppression’ (2004) 29 Alternative Law Journal 188 CrossRefGoogle Scholar at 188.

59. Clements, above n 4, p 3.

60. Ibid, p 3.

61. Bramwell's arrest may have been easier to justify given that he had been warned several times during the morning and there had been a complaint made by a community member. See Boe Lawyers, above n 51, p 28.

62. The Coroner observed during the inquest that Mulrunji should not have been arrested; Clements, above n 4, p 3.

63. Criminal Justice Commission, above n 57, Appendix 8 at A28.

64. PPRA, s 383; and see Police and Criminal Evidence Act 1984 (UK) (PACE), ss 24–25; See also Police and Criminal Evidence Act 1984: Code G: Code of Practice for the Statutory Power of Arrest by Police Officers (arrests must not be made where a summons is sufficient).

65. PPRA, s 383; PACE, ss 24–25.

66. PPRA, s 365.

67. PPRA, s 365(1)(g) (arrest may be necessary to preserve the safety of the person arrested).

68. Quoted from transcript of inquest evidence (Hurley) in Boe Lawyers, above n 51, p 30.

69. Quoted from ‘Inquest statements (Hurley)’ in Boe Lawyers, above n 51, p 29.

70. At least in Indigenous communities: see for example Cunneen, C and White, R Juvenile Justice: Youth and Crime in Australia (Melbourne: Oxford University Press, 2007) pp 147–149.Google Scholar

71. PPRA, s 378; or alternatively with respect to other offences arrest may be discontinued and a notice to appear served when the reasons that made arrest reasonably necessary no longer exist, see PPRA, s 377.

72. Boe Lawyers, above n 51, p 22.

73. Peter Beattie, Ministerial Statement, Hansard, 2 November 2006, p 463. See also C Mariner ‘Palm Islands Uneasy Peace’ Sydney Morning Herald 30 December 2006, p 14.

74. Clements, above n 4, pp 26–27.

75. See RCIADIC, above n 1, p 62.

76. H Thomas ‘Jury will Decide on a Question of Conscience’ The Australian 27 January 2007, p 22.

77. Clements, above n 4, p 6.

78. RCIADIC, above n 1, pp 65–67.

79. Ibid pp 57–58.

80. Ibid pp 62–63.

81. Clements, above n 4, p 22. Similar recommendations have been made in other cases: Halstead above n 32, p 187.

82. Freckleton, I and Ranson, D Death Investigation and the Coroner's Inquest (South Melbourne: Oxford University Press, 2006) p 227.Google Scholar

83. See Hunyor, above n 44, p 10.

84. Aboriginal and Torres Strait Islander Legal Service submission (dated 6 July 2007) p 2 and Sisters Inside submission (4 June 2007), above n 28, p 14

85. Ibid.

86. Clements, above n 4, pp 27, 29, 30.

87. Freckleton and Ranson, above n 82, p 229.

88. ‘Royal Commission into Aboriginal Deaths in Custody Implementation Status’ paper presented to Parliament by Peter Beattie in Hansard, 6 February 2007, p 14.

89. Clements, above n 4, pp 9–10. See Hunyor, above n 44, p 10.

90. Clements, above n 4, pp 32.

91. No author ‘Death in Custody Charge Welcome’ The Australian 27 January 2007, p 16; Clements, above n 4, p 10.

92. Hooper, C Who let the Dogs out? Palm Island after the Inquest into a Death in Custody’ (2006) 18 The Monthly 20 Google Scholar at 23.

93. T Koch and A Fraser ‘Another Black Stain’ The Australian 21 June 2007, p 13.

94. See Part 3, Chapter 7 of the PPRA, especially ss 165–168.

95. R v Jayson Richard Poynter [2006] QCA 517, [62].

96. Aboriginal and Torres Strait Islander Legal Service submission (dated 6 July 2007) p 2 and Sisters Inside submission (4 June 2007), above n 28, p 3.

97. For example see coroner's comments: Clements, above n 4, p 10.

98. Ibid.

99. Freckleton and Ranson, above n 82, p 227.

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101. Freckleton and Ranson, above n 82, p 665.

102. RCIADIC, above n 1, p 109.

103. Caxton Legal Centre submission (dated 15 March 2007) p 2; to the Crime and Misconduct Commission Inquiry into ‘Policing in Indigenous Communities’ submissions are available at http://www.cmc.qld.gov.au/asp/index.asp?pgid=10872 (accessed 5 November 2007).

104. See R v Matterson; ex parte Moles (1994) 4 Tas R 87; Freckleton and Ranson, above n 82, p 563.

105. R v Poynter, Norman & Parker; ex parte A-G (Qld) [2006] QCA 517.

106. Clements, above n 4, pp 31.

107. A Fraser ‘DPP's defiance a declaration of war’ The Australian 22 December 2006, p 1. In the UK complaints against the police are overseen by the Independent Police Complaints Commission, pursuant to the Police Reform Act 2002 (UK).

108. K Waller ‘The Modern Approach to Coronial Hearings in Australasia’ in Selby, above n 32, p 5.

109. Ian Freckleton ‘Expert Proof in the Coroner's Jurisdiction’ in Selby, ibid, p 37.

110. M Hogan ‘Lessons from the UK’ in Hogan et al, above n 24, pp 105, 113.

111. Hooper above n 92, p 23.

112. See Coroners Act 2003 (Qld) (Coroners Act), s 37. See also Coroners Act 2006 (NZ), s 57; Coroners Act 1988 (UK), s 11(6) and (7).

113. Halstead, above n 32, p 198.

114. See Coroners Act 1958 (Qld) (Repealed), s 41.

115. Coroners Act, s 45; see Coroners Act 1988 (UK), s 11.

116. Coroners Act, s 46; see Coroners Act 1988 (UK), s 11.

117. Coroners Act, s 3(d).

118. See Coroners Act, s 45; Coroners Act 1988 (UK), s 11(5); Ian Freckleton, above n 109, p 39.

119. See Coroners Act, s 45; cf Coroners Act 1988 (UK), s 11.

120. M Hogan ‘Let Sleeping Watchdogs Die’ in Hogan et al, above n 24, p 163.

121. See Amnesty International ‘Deaths in Custody: How Many More?’ (1997) 44 Australian Indigenous Law Reporter 44.Google Scholar

122. See previous Coroners Act 1958 (Qld), s 41; and see Coroners Bill 2002 Explanatory Notes, p 30. According to Freckleton this has been a trend since the Norris Enquiry; see Freckleton, I Coronial Law Reform: the New Wave (Editorial)’ (2006) 14 Journal of Law and Medicine 151 Google Scholar at 151 and note ), similarly in the UK s 11(6) of the Coroners Act 1988 expressly stipulates that the coroner's responsibility of independent inquiry does not include the purpose of making findings of guilt or making criminal charges.

123. J Malbon, G Airo-Farulla and C Banks ‘Review of Queensland Coronial Laws: Final Report’ (Prepared for the Indigenous Advisory Council, 1997) p 63.

124. Ibid.

125. See Coroners Act, s 47 and see Coroners Bill 2002 Explanatory Notes at 30; with regards to the possible adoption of these provisions in UK law, see s 13 of the Draft Coroners Bill (Department of Constitutional Affairs, 2006) available at http://www.justice.gov.uk/docs/coroners_draft.pdf (accessed on 13 April 2008).

126. Coroner's Bill 2002 (Qld), ‘Explanatory Notes’, pp 1–2.

127. Coroners Act, s 45.

128. Doomadgee v Deputy State Coroner Clements; Hurley v Deputy State Coroner Clements [2006] 2 QdR 352 at [29], [32] per Muir J.

129. Freckleton, above 109, p 40.

130. Law Commission of New Zealand Coroners: Report 62 (Wellington: NZLC, 2000) p 3.Google Scholar

131. Freckleton, above n 109, p 152. In the inquest into the death of Dianne Brimble on a P&O cruise ship, it was suggested that the coroner was rather over-enthusiastic, see no author ‘Dianne Brimble Inquest Coroner Quits’ The Age 14 July 2007.

132. Halstead, above n 32, p 198.

133. Freckleton and Ranson, above n 82, p 195; response to Coroners’ comments under UK reforms will be similarly at the discretion of the department, see Department for Constitutional Affairs, Draft Coroners Bill (2005), s 12, pp 26–27, available at http://www.dca.gov.uk/legist/coroners_draft.pdf (accessed 29 March 2008).

134. Coroners Act, s 47; no similar provision exists in the UK proposal, see Department for Constitutional Affairs, ibid, s 12, pp 26–27.

135. Law Commission of New Zealand ‘Coroners: A Review (A discussion paper) (Wellington: NZLC, 1999) pp 2, 30; cf with Northern Territory where the report including recommendations is required to be tabled in parliament, see s 27 of the Coroners Act 2004 (NT).

136. Freckleton and Ranson, above n 82, p 741.

137. Document titled ‘Queensland Government Response to Coroner's Comments in the inquest into the death of Mulrunji (as at 2 November 2006)’ presented to Parliament by Peter Beattie, Hansard, 6 February 2007.

138. Such groups are funded by the government and are comprised of local people within a community. Their roles include advising government on a range of issues and advising justices in relation appropriate sentence in criminal matters.

139. And also since the ‘Fitzgerald inquiry’, Fitzgerald, G E, Commission of Enquiry into Possible Illegal Activities and Associated Police Misconduct (Brisbane: Queensland Government, 1989 Google Scholar). See for example Aboriginal and Torres Strait Islander Legal Service submission (dated 6 July 2007) p 2 and Sisters Inside submission (4 June 2007) p 1, above n 28.

140. Clements, above n 4, pp 24, 27.

141. Office of the Director of Public Prosecutions Media Statement, 14 December 2006.

142. Ibid.

143. See, for example, Noel Pearson ‘Travesty on Palm Island’ The Weekend Australian, 23–24 December 2006.

144. Clements, above n 4, pp 2–3.

145. Woolmington v DPP [1935] AC 462.

146. However, this standard is not static as the degree of persuasiveness depends on the gravity of the offence: Briginshaw v Briginshaw (1938) 60 CLR 336. See further, Hamer, D The Civil Standard of Proof – Uncertainty, Probability, Belief and Justice’ (1994) 16 Sydney Law Review 506.Google Scholar

147. That is, any material that is probative, whether or not it is legally admissible.

148. R v South London Coroner; ex parte Thompson (1982) 126 SJ 625, per Lord Lane CJ.

149. Ibid.

150. A total of three Senior Counsel, six junior counsel, the Crown Solicitor, the Queensland Police Service Solicitor, Legal Aid (Queensland) and two private firms of solicitors were involved in the applications on evidential points to the Supreme Court. The cost of these proceedings, which did not advance the matter any further in practical terms, must have been extremely high.

151. Doomadgee, above n 128, at 363.

152. Commissioner of the Police Service v Deputy State Coroner Clements & Ors [2006] 1 Qd R 210.

153. TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995; R v Deputy Industrial Injuries Commission; Ex Parte Moore [1965] 1 QB 456 at 488.

154. Goldsmith v Sandilands (2002) ALJR 1024 at 1025.

155. See Coroners Act, ss 45, 46.

156. Doomadgee, above n 128, at [34]–[36].

157. Coroners Act, s 37.

158. Street, above n 18, p 10.

159. Coroners Act, ss 45, 46.

160. Note that Hurley had called for the coroner Michael Barnes to disqualify himself as a result of perceived bias. According to one journalist, who spoke with the family, Barnes had overseen at least eight previous complaints against Hurley, see Chloe Hooper ‘Freedom’ (2005) 1 The Monthly 15 at 15.

161. Doomadgee, above n 128.

162. Goldsmith v Sandilands (2002) ALJR 1024.

163. Doomadgee, above n 128, at 364.

164. Ibid, at 363.

165. Ibid, at 364.

166. Ibid, at 361.

167. Clements and Ors, above n 152.

168. Coroners Act, s 54(3) example (a).

169. State Coroner's Guidelines, December 2003, issued under Coroners Act, s 14.

170. This term is widely defined in the dictionary section of the Act to include a document connected to the investigation that the coroner obtains under the Act: Sch 2.

171. Clements and Ors, above n 152.

172. R v Spizzirri [2000] 2 Qd R 686. The applicability of this test was not disputed by the applicants.

173. [2006] 1 Qd R 210, 215.

174. McRae, Heather, Nettheim, Garth, Beacroft, Laura and Mcnamara, Luke Indigenous Legal Issues (Sydney: Lawbook Company, 2003) p 473.Google Scholar

175. R v Associated Northern Collieries (1910) 11 CLR 738. For the history of the privilege see Sorby v Commonwealth of Australia (1983) 152 CLR 281.

176. Coroners Act 1958 (Qld), s 33 (Repealed).

177. Coroners Act, s 39(2). Coroners Act 1999 (UK), s 11.

178. Coroners Act, s 39(3). Coroners Act 1999 (UK), s 11.

179. Clements, above n 4.

180. The right is affirmed in Queensland in the PPRA.

181. Weissensteiner v R (1993) 178 CLR 217.

182. Azzopardi v The Queen (2001) 205 CLR 50.

183. Street, above n 18; see Weissenseiner, above n 181; Azzopardi, ibid.

184. Judicial comment and direction on silence at trial is discussed in detail in Azzopardi, above n 182, at 74.

185. Ibid.

186. See Criminal Justice and Public Order Act 1994 (UK), ss 34–37; s 20 of the Evidence Act 1995 (Cth) permits judicial comment on silence, but does not permit the giving of directions to the jury on the matter.

187. Australian Broadcasting Corporation Transcript: The 7:30 Report, 14 December 2006, available at http://www.abc.net.au/7.30/content/2006/s1811986.htm (accessed 12 April 2008).

188. Ministerial Media Statement, 22 December 2006, available at http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=49762 (accessed 12 April 2008).

189. Ibid.

190. Ibid.

191. Commonwealth Director of Public Prosecutions Prosecution Policy of the Commonwealth (Canberra: DPP, 1986), p 3.

192. H Shawcross, quoted in Commonwealth DPP, ibid, p 3.

193. A similar shift is reflected in many common law jurisdictions. See for example Coroners Act 2006 (NZ), Coroners Act 1988 (UK), s 11; Coroners Act 1990 (Ontario, Canada), s 31(2).

194. The authority to issue guidelines is conferred by Director of Public Prosecutions Act 1984, s 11(1)(a)(i). The latest version was issued by the DPP on 14 November 2003, as amended in 16 May 2005

195. Commonwealth DPP, above n 191. See for example the public interest criteria in 4(ii) of the Guidelines, which are almost identical to those in 2.10 of the Commonwealth Guidelines.

196. Guidelines issued by the DPP on 14 November 2003, as amended on 16 May 2005 (Guidelines), introductory paragraph.

197. Guidelines 23(v)(a) and (d).

198. Guidelines 4.

199. Guidelines 4, pp 2–3. This is also the test in Commonwealth prosecutions and in the other States of Australia; see generally Attorney-General's foreword in Commonwealth DPP, above n 191, p iii.

200. Guidelines 4(i), p 3.

201. Guidelines 4(ii)(a)–(t).

202. Guidelines 4(ii) proviso.

203. Coroners Act, s 37.

204. Woolmington, above n 145.

205. Guidelines 20(ii).

206. Guidelines 20(iii).

207. Office of the Director of Public Prosecutions, Media Statement, 14 December 2006.

208. Ibid. Arguably, the DPP was vindicated to some extent, once the matter went to trial key witnesses Roya Bramwell and Lloyd Bengaroo were dismissed as unreliable witnesses and were never called to testify, see no author, ‘Key Witnesses Dismissed in Hurley Trial’ 21 June 2007, ABC News, available at http://www.abc.net.au/news/stories/2007/06/21/1957382.html (accessed on 13 December 2007)

209. Ibid.

210. Mackenzie, G, Stobbs, N and Thomas, M “What Really Happened” versus “What Can We Prove” Tension between the Roles of the Coroner and the Dpp in Queensland’ (2006) 6(24) Indigenous Law Bulletin 6 Google Scholar at 7.

211. Guidelines 20(ii).

212. Luxton v Vines (1952) 85 CLR 352 at 358.

213. Guidelines 4(iii).

214. Guidelines 4(iii) (a) and (c).

215. Guidelines 5.

216. See for example Street, above n 18, p 1.

217. Gouriet v Union of Post Office Workers [1978] AC 435 at 477, per Lord Wilberforce.

218. Prosecution of Offences Act 1985 (UK). See further, Rock, P Victims, Prosecutors and the State in Nineteenth Century England and Wales’ (2004) 4 Criminal Justice 331.CrossRefGoogle Scholar

219. See for example Director of Public Prosecutions Act 1984 (Qld), s 12.

220. Criminal Code 1899, s 561.

221. R v Webb [1960] Qd R 444 at 446.

222. Ibid, at 446–447.

223. Shanahan, M J, Irwin, M P and Smith, P E Carter's Criminal Law of Queensland (Chatswood: Butterworths, 13th edn, 2003) p [561.Google Scholar

224. R v Webb [1960] Qd R 443, p 447.

225. See for example R v Durnin [1945] QWN 35.

226. Clyne v Attorney-General (1984) 55 ALR 92 at 92.

227. See for example Scout Association Act 1924 (Cth), s 5; Patents Act 1990 (Cth), s 178.

228. Commonwealth DPP, above n 191, [2.28].

229. Director of Prosecutions Act 1983 (Cth), s 8.

230. This was indicated by former Attorney-General, Senator Evans QC, Second Reading speech, cited in Commonwealth DPP, above n 191, p 1.

231. See Director of Public Prosecutions Act 1984 (Qld), s 10A, which provides for such guidelines to be issued in relation to proceedings under the Criminal Proceeds Confiscation Act 2002 (Qld).

232. Rex v Sussex Justices; Ex parte McCarthy[1924] 1KB 256 at 259; However, it is generally recognised that His Lordship was only repeating a well and long known principle: See further Nettheim, G The Principle of Open Justice’ (19841986) 8 University of Tasmania Law Review 28 Google Scholar;

233. Director of Public Prosecutions Act 1984 (Qld), s 6.

234. Ibid, s 5(2)(a).

235. Department of Public Prosecutions Act 1986 (NSW), s 2A, Sch 1.

236. N Cowdery ‘Independence of the Prosecution’, paper presented at the Rule of Law: The Challenges of a Changing World Conference, Brisbane, 31 August 2007.

237. Much could be written also in relation the role and make-up of the jury in the context of this case; see for example Auty, K Putting Aboriginal Defendants off Their Country’ in Auty, K and Toussant, S (eds) A Jury of Whose Peers? The Cultural Politics of Juries in Australia (Perth: University of Western Australia Press, 2004) p 58 Google Scholar. For a discussion of ethnic minority representation in the jury system see also

238. P McCutcheon ‘Hurley Acquitted After Controversial Case’ 7.30 Report 20 June 2007, available at http://www.abc.net.au/7.30/content/2007/s1957282.htm (accessed 29 March 2008).

239. ‘Mulrunji's Family to Launch Civil Action’ AM, 2 July 2007 available at http://www.abc.net.au/am/content/2007/s1967160.htm (accessed 29 March 2008);

240. See, further Green, D (ed) Institutional Racism and the Police: Fact or Fiction? (London: Institute for the Study of Civil Society, 2000).Google ScholarPubMed

241. Sir Macpherson, William The Stephen Lawrence Inquiry (Cm 4262-I) (London: The Stationery Office, February 1999).Google Scholar

242. See for example the Home Secretary's Action Plan and the follow up reports on progress, available at http://police.homeoffice.gov.uk/human-resources/equality-diversity/stephen-lawrence-inquiry?version=1 (accessed 12 March 2008).

243. See Aboriginal and Torres Strait Islander Social Justice Commissioner Social Justice Report 2001 (Canberra: ATSISJC, 2002) pp 23–27.Google Scholar

244. See ABC Radio ‘Court Reporting’ The Law Report 2 October 2007, available at http://www.abc.net.au/rn/lawreport/stories/2007/2046208.htm (accessed 30 March 2008). Reporters are now allowed to carry hand-held recorders into Queensland court rooms, encouraging accurate reporting.

245. Coleman v Power, above n 52.

246. Although a diversion centre is now under contract for construction on Palm Island, many remote Indigenous centres remain under resourced. Continued police training is also required in relation to the use of arrest.

247. Given our discussion of the evidence in this paper, there is reason to suggest that it was.

248. Guidelines, introductory paragraph.

249. Macpherson, above n 241, [46.30].