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Clements, Christine --- "Office of the State Coroner: Inquest into the Death of Mulrunji - Digest" [2006] AUIndigLawRpr 81; (2006) 10(4) Australian Indigenous Law Reporter 85

Findings of Inquest into the Death of Mulrunji

Queensland Coroner’s Court: Palm Island and Townsville Sitting

Acting State Coroner Ms Christine Clements

27 September 2006

Introduction

On 27 September 2006 the Queensland State Coroner released her Findings of Inquest into the death of Mulrunji, an Aboriginal man who died in custody on Palm Island on 19 November 2004. The inquest heavily criticised the actions of the policemen involved in the case and found that one policeman, Senior Sergeant Hurley, was directly responsible for causing Mulrunji’s fatal injuries. The following passages include extracts of the inquest detailing both the Coroner’s findings and recommendations.

Extracts

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Conclusions from the Evidence

I find that Mulrunji did punch Senior Sergeant Hurley outside the police station as he tried to resist being taken into the police station … Senior Sergeant Hurley did respond to Mulrunji’s punch by himself punching Mulrunji.

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I find that both men fell through the entrance door of the police station. There was a concrete step before the door. The floor was concrete and covered with lino. The men had hold of each other before the fall.

I have considered carefully whether or not Senior Sergeant Hurley fell onto Mulrunji at this time. Senior Sergeant Hurley told Sergeant Leafe he had not. He repeated this version to every investigating police officer and the investigating officer from the Crime and Misconduct Commission. He told all of them that he had fallen to his left hand side, with Mulrunji to the right hand side.

I am not persuaded by Dr Lampe’s opinion that people are not able to recall exactly what happened in complex events. Senior Sergeant Hurley was quite clear on every occasion, until he came to court, that he had not fallen on Mulrunji. Indeed it would seem commonplace that anyone would be able to say whether they had got up from a fall, either removing themselves from on top of another person, or up from a hard, flat, lino covered concrete surface.

In his evidence to this court Senior Sergeant Hurley merely said he must have fallen on Mulrunji. What has brought this change of recollection after repeated adamant accounts that he fell to the left hand side? The reality is that Senior Sergeant Hurley has become aware exactly of the nature of Mulrunji’s injuries causing death. If he had not otherwise caused such injury to Mulrunji, then the injury must be explained in the fall.

In considering the plausibility of this belated recollection and reinterpretation of what must have happened, I consider the following.

Senior Sergeant Hurley still asserted that he was not put out by the fall and did not react against Mulrunji – a most unlikely response from a man who considered his lawful authority and personal position of power was being challenged, and in his own police station. Constable Steadman heard Senior Sergeant Hurley yelling in an abusive tone to Mulrunji immediately after they had fallen through the door.

From his position outside the door, Steadman then saw Mulrunji’s feet being dragged along towards the cells. He could only see feet. He saw no more and waited for things to ‘settle down’ before entering the police station.

I find that Roy Bramwell was quite excited in giving his account at the re-enactment and there is some embellishment, but the basis of what he saw is credible given the overall sequence of events and the injury sustained. Despite a steady demeanour in court, Senior Sergeant Hurley’s explanation does not persuade me he was truthful in his account of what happened.

I note Senior Sergeant Hurley’s response to Roy Bramwell’s allegation of three punches. Roy Bramwell could only see Senior Sergeant Hurley’s elbow going up and down three times from where he was seated in the yellow chair. The photos, (photo 10) of this view show it was partly obstructed by the filing cabinet. But Senior Sergeant Hurley is a very large man. In the re-enactment tape he dwarfs even the tall Inspector Williams and makes Inspector Webber look very small. His head nearly touches the doorframe. He is 200.66 centimetres tall. Roy Bramwell said he could only see Mulrunji’s feet and part of his legs as he lay on the floor. Senior Sergeant Hurley’s evidence was that he did not see that Roy Bramwell was sitting in the yellow chair when he and Mulrunji fell through the doorway. Mr Bramwell said Senior Sergeant Hurley was bending over Mulrunji with his elbow going up and down three times. He couldn’t see where Senior Sergeant Hurley’s hand was, relative to Mulrunji’s body. He was led into the suggestion by police that Mulrunji was being hit in the head. He also referred at this time to Mulrunji’s shirt being ripped. And, most significantly he said these actions were accompanied by Senior Sergeant Hurley saying ‘Do you want more Mr Doomadgee, do you want more?’

Senior Sergeant Hurley’s response was to deny the accusation of punching and to explain it as an attempt to lift Mulrunji by the shirt. The shirt kept ripping, thus causing him to perform a repetitive action which he says was misinterpreted by Roy Bramwell as punching. Both men have described in physical terms the action of the elbow going up and down. The description is reminiscent of what is frequently seen in football matches when hot headed players seemingly grab at shirtfronts, but take the opportunity to punch the opposition in doing so.

Contrary to his evidence I find that Senior Sergeant Hurley was angry when he was hit in the jaw by Mulrunji as he came out of the back of the police van. He expressed it himself that he was shocked at the challenge to his authority on Palm Island.

I reject Senior Sergeant Hurley’s account that he then simply got up from the heavy fall through the doorway and went to assist the man who had just punched him and caused him to fall over. I find that he did respond with physical force against Mulrunji while Murunji was still on the floor.

I accept Roy Bramwell’s evidence to the extent that he saw Senior Sergeant Hurley leaning over Mulrunji with his elbow going up and down three times. In particular I note that Roy Bramwell’s account to the police recorded on the re-enactment video occurred prior to the release of the autopsy information, whereas Senior Sergeant Hurley’s changed recollection and reconstruction of where he had fallen, occurred after he knew exactly what injury had caused Mulrunji’s death.

Senior Sergeant Hurley’s evidence was that he considered Mulrunji was still causing him a problem by not getting up. He was asked to respond to what Roy Bramwell had told police. Senior Sergeant Hurley explained that he was lifting Mulrunji and, as he did so, the shirt was ripping. There is evidence that indeed the shirt was ripped, but I am not satisfied with Senior Sergeant Hurley’s account of how this occurred. Critically, there is what Roy Bramwell alleges he heard Senior Sergeant Hurley say- ‘Do you want more, Mr Doomadgee. Do you want more?’ I accept that Senior Sergeant Hurley did say this.

I am satisfied that on the basis of Roy Bramwell’s account of what he saw and heard, together with the immediately preceding sequence of events, that Senior Sergeant Hurley lost his temper and hit Mulrunji after falling to the floor.

I find that Senior Sergeant Hurley’s repeated clear statements that he fell to the left hand side of Mulrunji are in fact what occurred.

I find that Senior Sergeant Hurley hit Mulrunji whilst he was on the floor a number of times in a direct response to himself having been hit in the jaw and then falling to the floor.

I do not necessarily conclude that this force was to Mulrunji’s head as stated by Mr Bramwell. He could not have been in a position to see Mulrunji’s head from where he was seated. Mulrunji’s feet and part of his legs was all he could see. It is open on Bramwell’s evidence that the force was applied to Mulrunji’s body rather then his head. This is also consistent with the medical evidence of the injuries that caused Mulrunji’s death. It is also most likely that it was at this time that Mulrunji suffered the injury to his right eye.

After this occurred, I find there was no further resistance or indeed any speech or response from Mulrunji. I conclude that these actions of Senior Sergeant Hurley caused the fatal injuries.

Sergeant Leafe returned from opening the cells and Mulrunji was dragged away and deposited in cell number two. Patrick Bramwell (Roy Bramwell’s nephew) was then similarly brought in and dragged to the cells.

There was no attempt whatsoever to check on Mulrunji’s state of health after the fall and its sequelae. The so called checks on the two intoxicated prisoners in the cells was woeful, even excluding the possibility of serious injury having occurred. Neither officer remained in the cell for more than seconds on each occasion they entered to check the prisoner. It was not until Sergeant Leafe suspected that Murunji might in fact be dead, that any close scrutiny was made. No attempt at resuscitation was made by any police officer even when there was a degree of uncertainty about whether Mulrunji had died.

I find, in reliance on all the medical evidence and the video tape that Mulrunji was indeed deceased when Sergeant Leafe checked on him at the time recorded by the tape as twenty past eleven that morning.

I find that Senior Sergeant Hurley avoided the issue and sent family members away from the station after knowing that Mulrunji was deceased.

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Recommendations

1. The arrest of Mulrunji was not an appropriate exercise of police discretion. There were a range of alternatives to arrest available that should have been preferred. These include giving a caution, issuing a direction or commencing proceedings by way of notice to appear or summons.

2. The Police Powers and Responsibilities Act 2000 (PPR Act) should be amended to reflect the principle of arrest as a last resort…

3. The PPR Act should be amended to include an explicit statutory duty to consider and utilise alternatives to the detention of intoxicated persons in police cells.

4. The Operational Procedures Manual (OPM) should be amended to instruct officers to consider arrest as a last resort and consider all alternatives before arresting a person, particularly in cases of minor offences.

5. The OPM should be amended to reinforce the need to consider and utilise alternatives to the detention of intoxicated persons in police cells.

6. The inappropriate arrest of Mulrunji reflects a lack of awareness of the legal bases upon which a person may be arrested without a warrant…

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8. The decision to arrest Mulrunji and the evidence of Senior Sergeant Hurley discloses a lack of awareness of, and a failure to take into account, the recommendations of the RCIADIC relating to the arrest of Aboriginal people for drunkenness and public order offences.

9. The Police Commission should give particular attention to the training of officers working in Aboriginal communities.

10. Immediate attention should be given by the Queensland Government to the proper funding and support of the Community Justice Group on Palm Island.

11. Urgent attention should be given by the Queensland Government to the establishment of a diversionary centre on Palm Island to provide an alternative to police custody for people who come to the attention of police while intoxicated.

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18. There was no assessment of Mulrunji’s health upon being received into police custody at the Palm Island Watchhouse. There was no adequate reason for this failure.

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25. Theoretical and practical training in first aid and resuscitation should be mandatory for all officers who are in charge of a police watchhouse.

26. People in custody should not be left unmonitored under any circumstances.

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27. The involvement in the investigation of Mulrunji’s death of officers from Townsville and Palm Island was inappropriate and undermined the integrity of the investigation.

28. In all deaths in custody, officers investigating the death should be selected from a region other than that in which the death occurred.

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34. The OPM should be amended to more clearly state the need for officers involved in an investigation to consider the impartiality and the perception of impartiality in the conduct of the investigation at all times.

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39. Difficulties in cross-cultural communication between police and Aboriginal witnesses may have impaired the effectiveness of the investigation of this matter by police. Significant attention should be given by the Police Commissioner to the training of officers, particularly those who are working in or near large Indigenous communities such as Palm Island in relation to communication with Indigenous people and the use of support persons and interpreters. This is a matter that is fundamental to the effective and fair administration of justice in Queensland.

40. The OPM should be amended to include, as an appendix, Chapter 9 of the Supreme Court of Queensland Equal Treatment Benchbook on ‘Indigenous Language and Communication’. The OPM should direct officers to follow and apply the contents of that chapter to the greatest extent possible.

These comments will be sent to the Attorney General, the Director General and Minister of Government with responsibility for police and the Commissioner for police.

On 14 December 2006 the Queensland Director of Public Prosecutions, Leanne Clare, announced that no charges would be laid against Sergeant Hurley. At the time of going to press the former Chief Justice of NSW, Sir Laurence Street, had been appointed to review the DPP decision not to prosecute Sergeant Hurley. The full text of the Queensland State Coroner’s findings are available online at <http://www.justice.qld.gov.au/courts/coroner/findings.htm> .