That Governments ensure that standing instructions to the officers of (police services) specify that each officer involved in the arrest, incarceration or supervision of a person in custody has a legal duty of care to that person, and may be held legally responsible for the death or injury of the person caused or contributed to by a breach of that duty.
Recommendation 122 of the 1991 Royal Commission into Aboriginal Deaths in Custody
On 19 November 2004, Mulrunji Doomadgee lost his life in the police watch-house on Palm Island, 65 kilometres to the north-east of Townsville. An intoxicated Mulrunji had been arrested on a charge of "public nuisance" by Senior Sergeant Chris Hurley — an arrest that Coroner Christine Clements would later describe as "not an appropriate exercise of police discretion".
Nearly two years later, on 27 September 2006, the Coroner delivered her findings, stating that "Senior Sergeant Hurley hit Mulrunji, whilst he was on the floor, a number of times" and that "these actions caused the fatal injuries". An autopsy revealed that the deceased man had four broken ribs and that his liver was almost cleaved in two.
Six weeks after the Coroner’s findings were delivered, Queensland’s Director of Public Prosecutions, Leanne Clare, stunned the community by announcing that Hurley would not face charges. Clare is no stranger to controversy, having been involved in decisions to prosecute former One Nation leader Pauline Hanson and Chief Magistrate Di Fingleton — both convictions were later overturned by appeal courts. Curiously, on this occasion the DPP chose to elaborate on the circumstances surrounding Doomadgee’s death, describing it as a "terrible accident" caused by a "complicated fall".
The wider Indigenous community erupted in outrage at the decision.
Shortly after the DPP’s announcement, I spoke to ALP Federal President Warren Mundine, who called the decision a "disgrace" and said it was an affront to Aboriginal people that Chris Hurley was still working as a policeman. Mundine invoked the Ku Klux Klan racism of the film Mississippi Burning, saying that "there is no justice in Queensland for Aboriginal people". Cape York Indigenous leader Noel Pearson said Clare’s decision was "driving Indigenous people to the depths of despair".
Meanwhile, Queensland Premier Peter Beattie prepared to tough things out, telling anyone who would listen that he would not tolerate "political interference" in the discharge of the duties of the DPP. Beattie has perfected a line of generic shtick designed for local consumption which has it that Queenslanders will not be bullied by smug and overbearing southerners of any description — particularly those who hail from Canberra.
But this time, as momentum for a review of the decision was fanned by protest rallies around the country, the Beattie Government began haemorrhaging.
On 21 December, Queensland’s Attorney-General, Kerry Shine, wrote to the DPP, advising her that a review of the decision would be "strongly" supported by Premier Beattie. But Clare was unmoved, issuing a statement saying that, "If this case had gone to a jury, no law abiding citizen — Black or White, Christian or Muslim — would have found this man guilty."
The backdown came the following day, with Shine releasing a statement saying that Clare had made an "unexpected offer" to provide him with the file on the Palm Island matter, which he will "refer to the Crown Solicitor to commission an independent review".
Retired Queensland District Court judge Pat Shanahan was later commissioned to conduct the review. However, the appointment was compromised almost immediately with reports that Shanahan was part of the three-person panel that recommended Clare’s appointment as DPP in 2000. "It is absolutely unacceptable to have Pat Shanahan doing this review," Noel Pearson said.
The circus continued when, on 27 December, Shanahan tendered his resignation. Beattie described Shanahan’s decision as being, "in a sense, the best outcome for everybody," saying that "from the Government’s point of view, it’s better that we have a person who is appointed by the Crown Solicitor without any of that controversy." No politician in the country has been more adept at sniffing the political winds than the Queensland Premier, but the Mulrunji affair had now become a national issue which could no longer be managed with parish-pump techniques.
Prime Minister John Howard, busy man that he is, was nevertheless happy to pour petrol on a fire that was beginning to engulf the Beattie Government. "I think it would be a good idea if the Queensland Government found another person outside the State to get involved," offered Howard. A beleaguered Beattie responded to the bait with a barrage of parochialism.
But too much spin makes people dizzy. Beattie, a man who has built a political career in part on his extraordinary ability to manage and manipulate public expectation, was coming under increasing pressure.
The website of the Office of the Director of Public Prosecutions (Queensland) features the splendidly titled document Guidelines to Replace All Previous Guidelines. The stated purpose of this paper is to "assist the exercise of prosecutorial decisions to achieve consistency and efficiency, effectiveness and transparency in the administration of criminal justice". It advises that two criteria must be satisfied to warrant a prosecution: There must be sufficient evidence, and the "public interest" must require a prosecution.
Black-letter lawyers do not appreciate amateurs meddling in their craft. Doubtless, the meaning of the term "evidence" at law is rather more complex than the benign "ground for belief" that the Macquarie Dictionary offers. Nevertheless, it is incomprehensible to the layperson that a coroner can find that a prisoner died at the hands of his jailer without a criminal trial ensuing.
The Guidelines advise that considerations in determining "public interest" should include "the necessity to maintain public confidence in the Parliament and the Courts", and "the effect on public order and morale". This section concludes with the advice that "the more serious the offence, the more likely that the public interest will require a prosecution."
Last week the Beattie Government appointed former New South Wales Chief Justice, Sir Laurence Street, as Shanahan’s replacement. In announcing the appointment, Deputy Premier Anna Bligh stated tellingly that Street would bring a "a truly independent approach to the Palm Island matter".
Indeed, the appointment of a jurist from outside the orbit of the State Government has won the cautious support of Indigenous leaders in Queensland, with long-time activist Sam Watson stating that "this is the first thing they’ve done right." Following the review, which is expected to take weeks rather than months, Street will provide the Attorney-General with a second opinion on whether a prosecution of Hurley is warranted.
Ultimately, the issue is not about nailing a particular police officer over a specific incident. What is at stake is the capacity of Indigenous Australians to get a fair shake from the criminal justice system. No amount of bridge-walks, book launches or cultural displays will further the cause of reconciliation unless Aboriginal and Torres Strait Islander people can be guaranteed a fair go before the law.
The legal rights of Indigenous Australians — no more or less than non-Indigenous Australians — are absolute, and cannot be reduced to political bargaining chips.
Warren Mundine put things more succinctly: "If the law can’t protect people then you change the law."
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