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Commission submissions: Mulrunji

Legal Legal
Friday 14 December, 2012

IN THE CORONERS COURT OF QUEENSLAND INQUEST INTO THE DEATH OF MULRUNJI ON PALM ISLAND ON 19 NOVEMBER 2004

SUBMISSIONS OF THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION:

COMMENTS OF THE CORONER PURSUANT TO
SECTION 46(1) OF THE CORONERS ACT 2003

A INTRODUCTION

  1. The Human Rights and Equal Opportunity Commission ('the Commission') makes these submissions in relation to the comments that may be made by the Coroner in this matter.

  2. The Commission reiterates its previous submission that the comprehensive investigation of a death in which there may be state responsibility is necessary to adequately protect human rights.1

  3. Section 46 of the Coroners Act 2003 (Qld) ('Coroners Act') provides that:

    (1) A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to -

    1. public health or safety; or
    2. the administration of justice; or
    3. ways to prevent deaths from happening in similar circumstances in the future
  4. The Commission's submissions address a range of matters connected with the death of Mulrunji in relation to which it submits that the Coroner should comment pursuant to s 46(1). These are matters which raise significant human rights issues. The Commission maintains that it is appropriate for the Coroner to have regard to human rights principles in the conduct of this Inquest, including in deciding whether it is 'appropriate' to comment under s 46(1) of the Coroners Act.2

  5. The Commission's submissions draw significantly on the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC'). These are of particular relevance and utility to this inquest as they highlight matters of ongoing concern in the administration of justice and provide useful guidance on ways in which deaths in similar circumstances to those presently being considered may be prevented.

  6. Consistent with the role that the Commission has played in these proceedings, these submissions are limited to issues that fall within the interest of the Commission and attempt to avoid duplication of submissions that the Commission anticipates will be made by other counsel in this matter. In particular, the Commission will not make submissions as to the factual findings that should be made by the Coroner pursuant to s 45 of the Coroners Act.

  7. The Commission's submissions cover five areas:

    • The decision to arrest Mulrunji and related policing issues (Part B);
    • Diversion from custody on Palm Island (Part C);
    • Assessment and monitoring of health (Part D);
    • Other issues concerning supervision and monitoring in custody (Part E);
    • The investigation of Mulrunji's death (Part F).
  8. The Commission's submissions as to the comments that the Coroner may make are set out at the end of each section. They are also set out in a separate document annexed to these submissions for ease of reference: see Annexure One, Commission Submissions as to Comments of the Coroner.

B THE DECISION TO ARREST MULRUNJI AND RELATED POLICING ISSUES

  1. This section examines the decision to arrest Mulrunji and related policing issues. These are matters clearly connected with Mulrunji's death and relate to the administration of justice and ways to prevent deaths from happening in similar circumstances in the future.

  2. For the reasons set out below, the Commission submits that Mulrunji should not have been arrested. His arrest was an inappropriate exercise of police discretion and displays a need for changes to police training, policy and practice and amendments to the Police Powers and Responsibilities Act 2000 (Qld) ('PPR Act').

  3. The Coroner is prohibited from including in her comments 'any statement that a person is or may be - (i) guilty of an offence; or (ii) civilly liable for something': s 46(3). A comment by the Coroner that the arrest of Mulrunji was not lawful may breach this prohibition. It is nevertheless within the power of the Coroner to make findings as to the factual circumstances surrounding Mulrunji's arrest, as the basis for appropriate comment. The fact that legal conclusions as to the legality of the arrest of Mulrunji may be drawn by others from such findings of fact does not alter this: 'the coroner is to find the facts from which others may, if necessary, draw legal conclusions'.3

  4. The Coroner is also entitled to make comment as to the appropriateness of the arrest of Mulrunji as an exercise of police discretion, without making specific comment as to its legality. A comment as to the appropriateness of the arrest falls clearly within the scope of s 46(1) of the Coroners Act as it relates to the administration of justice.

  5. The exercise of the discretion to arrest in this matter is also relevant to comments that the Coroner may make as to police policy and practice more broadly: relevant both to the administration of justice and ways to prevent deaths from happening in similar circumstances in the future.

  6. While the evidence of Senior Sergeant Hurley was that he had chosen to go to Palm Island because he enjoyed that type of community,4 the Commission acknowledges at the outset that policing in remote communities can be challenging. In the Commission's view this makes appropriate training and the existence of clear policies all the more important to ensure police are able to undertake their duties effectively and appropriately.

(i) Legal basis for the decision to arrest

  1. Relevant to the present inquest, the PPR Act prescribes the circumstances in which a police officer can arrest an adult, as follows:

198 Arrest without warrant

(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons-

(a) to prevent the continuation or repetition of an offence or the commission of another offence;

(b) to make inquiries to establish the person's identity;

(c) to ensure the person's appearance before a court;

(d) to obtain or preserve evidence relating to the offence;

(e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;

(f) to prevent the fabrication of evidence;

(g) to preserve the safety or welfare of any person, including the person arrested;

(h) to prevent a person fleeing from a police officer or the location of an offence;

(i) because the offence is an offence against section 444 or 445;

(j) because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;

(k) because of the nature and seriousness of the offence;

  1. It can be noted that this power has two preconditions: first that a police officer 'reasonably suspects' that an adult has committed an offence and second that arrest is 'reasonably necessary' for one of the stated reasons. Both of these preconditions must be satisfied for an arrest without a warrant to be lawful.

  2. The Queensland Police Operational Procedures Manual ('OPM') would appear to offer no guidance to officers in the exercise of their discretion to arrest without a warrant.5 It would appear to make no reference to alternatives to arrest that an officer should consider before deciding to arrest a person.6

(ii) Was an offence committed?

  1. The evidence of Senior Sergeant Hurley was that Mulrunji was arrested for saying the words 'You fucking cunts' while approximately 30 metres away from the police car in which Hurley and Police Liaison Officer Bengaroo were sitting.7

  2. Senior Sergeant Hurley was of the view that this behaviour constituted the offence of public nuisance.8 The offence of public nuisance is contained in s 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Qld), which provides that a person commits a public nuisance offence if:

    (a) the person behaves in -

    1. a disorderly way; or
    2. an offensive way; or
    3. a threatening way; or
    4. a violent way; and

(b) the person's behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

  1. The maximum penalty for this offence is 10 penalty units or 6 months imprisonment. In practice, the evidence of Senior Sergeant Hurley was that a fine was the penalty generally imposed by a court for such an offence.

  2. Section 7AA(3) relevantly provides that, without limiting the above definition, 'a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language'.

  3. It was the 'offensiveness' of Mulrunji's behaviour that was said by Senior Sergeant Hurley to have made out this offence.10 It was also the offensiveness 'to people who are in the general public area' that was said by Hurley to have been the manner in which the behaviour 'interfered with' the 'peaceful passage through, or enjoyment of' the public place by members of the public.11

  4. When the words were spoken by Mulrunji, he was walking down the street away from police, who were the apparent subject of his alleged words. He had 'finished saying his piece'.12

  5. Witnesses gave varying accounts of the circumstances leading up to Mulrunji's arrest. Apart from Senior Sergeant Hurley and Police Liaison Officer Bengaroo, none of the eyewitnesses heard Mulrunji say the words attributed to him and some rejected the suggestion that he had sworn at all.13

  6. The Commission queries whether or not the alleged behaviour of Mulrunji, on the police evidence, was of sufficient seriousness to bring it within the scope of the criminal law. Given that it appears that the only persons potentially offended by the alleged behaviour were Senior Sergeant Hurley and Police Liaison Officer Bengaroo, it is relevant to recall the comments of the High Court in Coleman v Power that 'police officers , like other public officials, are expected to be thick skinned and broad shouldered in the performance of their duties'14 and that '[b]y their training and temperament police officers must be expected to resist the sting of insults directed to them'.15

  7. Nevertheless, the Commission submits that the central issue is whether, even if there was sufficient basis for Senior Sergeant Hurley to reasonably suspect that Mulrunji had committed an offence, there was a sufficient reason to arrest him.

(iii) Was arrest 'reasonably necessary' for a given reason?

  1. Even if the conduct of Mulrunji was sufficient to give rise to a reasonable suspicion that an offence had been committed, it was not, in the Commission's view, appropriate to arrest him for any of the reasons listed in s 198 of the PPR Act.

  2. Senior Sergeant Hurley's evidence as to his reasons for arresting Mulrunji was unsatisfactory. Hurley sought to justify his decision on a range of grounds that changed under questioning.16 Even if accepted, none was sufficient to justify Mulrunji's arrest. Significantly, Hurley did not consider any options other than arrest for dealing with Mulrunji.17

  3. Initially, Senior Sergeant Hurley gave evidence that his reasons for arrest were 'for basically, his behaviour, with public nuisance towards - you know, in support of Lloyd [Bengaroo], because Lloyd doesn't have any power to arrest'.18 In cross-examination Hurley confirmed that his reasons for arresting Mulrunji were 'simply because he had committed the offence and to support Lloyd'.19

  4. Support of a colleague is not a ground of arrest under s 198 of the PPR Act.

  5. Senior Sergeant Hurley also sought to explain his decision to arrest Mulrunji on the basis that 'he wasn't known to me so you take him back to the station, check who the person is.'20 In cross-examination Hurley also stated that 'I had to check his background and his history and whether there was any warrants'.21 These explanations, even if they are accepted as being the basis upon which Mulrunji was arrested, are insufficient to justify arrest for a number of reasons:

    • It was not reasonably necessary to arrest Mulrunji to make inquiries to establish his identity (s 198(1)(b)). Mulrunji was identified to Senior Sergeant Hurley by Police Liaison Officer Bengaroo prior to his arrest.22 To the extent that Hurley may have felt it necessary to seek other details in relation to Mulrunji, a range of other information was available from Bengaroo: Hurley simply failed to ask.23

    • It is not a ground of arrest under s 198 of the PPR Act that a police officer wishes to check whether a person has any warrants outstanding.

  6. Senior Sergeant Hurley also sought to justify his decision to arrest Mulrunji on the basis that 'that's the process to get them to Court' and that Mulrunji would not have understood a notice to appear served on him at that time because of his level of intoxication.24 This evidence should simply not be accepted. Hurley was in no position to make a sufficient assessment of Mulrunji's state of intoxication at the time that he decided to arrest him. Hurley had not even spoken to Mulrunji at this time.25
  7. In any event, it was not 'reasonably necessary' to arrest Mulrunji to ensure his appearance before a court (s 198(1)(c)), for the following reasons:

    • Senior Sergeant Hurley could have issued and served Mulrunji with a notice to appear under s 214(2) PPR Actat a later time. The PPR Act explicitly notes that the object of s 214 is to 'provide an alternative way for a police officer to start a proceeding against a person that reduces the need for custody associated with arrest ' (s 214(1), emphasis added).
    • Senior Sergeant Hurley could also have commenced proceedings against Mulrunji at a later time by way of complaint and summons under s 42 of the Justices Act 1886 (although it is noted that the 'notice to appear' procedure is designed to avoid the delay associated with that process: s 214(1) PPR Act).

    • Given what was known about Mulrunji by Police Liaison Officer Bengaroo, there was no reason to believe that he would not attend court in response to a notice to appear, or a summons. Indeed, Senior Sergeant Hurley accepted that Mulrunji was 'a reasonable chance of turning up to Court' given what was known about him by Bengaroo.26

  8. Another factor in Senior Sergeant Hurley's decision to arrest Mulrunji appears to have been the idea that Mulrunji was 'going in for a sleep'.27 Hurley appears to have contemplated that Mulrunji may have then been released after a criminal history check had been conducted: 'in the past they have a sleep in the watch-house for a while, and go, but I had to do a criminal history check.'28 While s 198(1)(g) of the PPR Act authorises arrest where it is reasonably necessary to 'preserve the safety or welfare of any person, including the person arrested', the circumstances were not within the scope of that authorisation for a number of reasons:
    • Senior Sergeant Hurley accepted that Mulrunji was not so drunk as to be a danger to himself or others;29

    • It was not reasonably necessary for Mulrunji to be arrested to 'have a sleep' when he could have been taken home (or directed to go home and, if necessary, to stay there pursuant to s 39 of the PPR Act) for that purpose.30

  9. Under cross-examination, Senior Sergeant Hurley also sought to justify his decision to arrest Mulrunji on the basis that he 'wanted to discontinue the offence'.31 This evidence should be rejected. Hurley had previously agreed that Mulrunji had 'said his piece' and was walking away.32 There was nothing to indicate that the offence would reoccur and when asked 'on what basis did you form the view that he was going to start again?', Hurley conceded 'Well, I don't know'.33 Even if the Coroner was to conclude the Hurley held the view that the offence may have reoccurred, such belief was not reasonably held in the circumstances.
  10. In any event, this was not adequate justification for arrest: it could not be said to be 'reasonably necessary' to arrest Mulrunji to prevent the continuation or repetition of the offence (s 198(1)(a)), given the other options that were available to Senior Sergeant Hurley. In particular:

    • Senior Sergeant Hurley could have given Mulrunji a direction not to repeat his conduct, or to leave the area and not return for a period of up to 24 hours, or to go home and remain there for a period of time: see s 39 PPR Act.

    • Senior Sergeant Hurley may also have chosen to give Mulrunji a caution as to his behaviour.

  11. Finally, Senior Sergeant Hurley offered as a justification for arrest that he had 'just arrested a gentleman [Patrick Bramwell] for the same thing'.34 Despite the obvious difference between the behaviour of Bramwell (repeated and ongoing conduct the subject of a complaint and a request for police to intervene) and that alleged of Mulrunji (isolated and completed conduct that was not the subject of any public complaint or request for intervention), the reason given does not constitute a lawful basis for arrest under s 198 of the PPR Act.
  12. The exercise by Senior Sergeant Hurley of his discretion in the case of Mulrunji might be contrasted with the exercise of his discretion in relation to Roy Bramwell shortly after Mulrunji's arrest. The Commission submits that the Coroner was, with respect, correct to observe as follows in her reasons of 5 October 2005:

    [W]itness the extraordinary situation of Roy Bramwell being allowed to leave the police station without charge on the morning of Mulrunji's death. He allegedly had seriously assaulted three women and then [became] involved in further argument whilst intoxicated. One woman required medical evacuation from the island to Townsville. This was in stark contrast to the decision to arrest Mulrunji after a minor verbal incident.

    (iv) Relevant context for comments by the Coroner regarding arrest and policing issues

  13. The Commission submits that, in formulating any comments under s 46 in relation to the arrest of Mulrunji, it is necessary for the Coroner to consider the context of Aboriginal incarceration, the principle of arrest as a last resort and issues relating to arrest and intoxication. These issues are addressed in turn. The evidence in this inquest in relation to the training of police prior to working on Palm Island and the role of the Community Justice Group is also considered.

    The context of Aboriginal incarceration

  14. One of the clear messages of RCIADIC was that a reduction in the unacceptable rate at which Aboriginal35 people were dying in custody required a reduction in the rates of arrest, detention and imprisonment of Aboriginal people. Commissioner Johnston stated:

  15. The conclusions are clear. Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community. But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody. Too many Aboriginal people are in custody too often.36

  16. The RCIADIC report accordingly found that:

  17. The highest possible priority needs to be placed by governments and corrections authorities on measures to significantly reduce the number of Aboriginal people in custody.37

  18. RCIADIC further found that alcohol-related and other summary offences, such as that of 'public nuisance' for which Mulrunji was arrested, account for a significant number of Aboriginal people held in custody:

    In a sense [the disproportionate numbers of Aboriginal people in custody] begins before the criminal justice system takes effect. By far the largest number of Aboriginal people in police lockups, are those who are detained for what is often called protective custody, that is those who are found drunk in a public place - which in most jurisdictions is no longer a criminal offence - but who are detained and taken to police cells and kept there for a number of hours until they are thought to be sufficiently sober to be released. And these numbers are added to by those who are arrested for the offence of public drunkenness where drunkenness has not been decriminalised. The Interim Report of the Royal Commission strongly advocated sobering-up shelters, not associated with police or other custodial agencies, to which a person drunk in public could be taken. There have been some such shelters created and others are being created. Many more are needed.

    There are also large numbers of Aboriginal people in custody, mainly police custody and occasionally prison custody for street offences and, comparatively speaking, a small number in prison custody for serious offences.38

  19. Accordingly, action to reduce the numbers of Aboriginal people arrested for street offences and offences related to public drunkenness is fundamental to reducing Aboriginal deaths in custody. The discretionary decisions taken by police officers to arrest and/or charge Aboriginal people is one obvious way in which such a result can be effected. While Senior Sergeant Hurley gave evidence that he was familiar with the RCIADIC report, he displayed little awareness of the substance of its recommendations.39

  20. Commissioner Wootten commented in the RCIADIC report:

    It is surely time that police learnt to ignore mere abuse, let alone 'bad language'. In this day and age many words that were once considered bad language have now become commonplace and are in general use amongst police no less than amongst other people. Maintaining the pretence that they are sensitive persons offended by such language does nothing for the respect of the police. It is particularly ridiculous where offence is taken at the ranting of drunks, as is so often the case. Charges about language just become part of an oppressive mechanism of control of Aborigines. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others - resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if the police were not so easily 'offended'.40

  21. In considering the evidence in this matter and the comments that may be appropriate, the Commission submits that the Coroner should be particularly conscious of the broader context of relations between police and Aboriginal people: in particular, what Cunneen describes as the 'normalisation' of Indigenous imprisonment.41 Cunneen argues:

    Aboriginal people are a group about which there is a strongly embedded set of beliefs and attitudes within police culture. Importantly, these beliefs are 'constantly reinforced and reproduced by routine police practices' [Hal Wootten, RCIADIC, Regional Report of Inquiry in New South Wales, Victoria and Tasmania, 290] When the practices are routine, legitimated through police culture, and condoned by police management, we confront the problem of institutionalised forms of racism. The view of Indigenous people as not law-abiding, as hostile and uncooperative, as drunken, is a view which redefines them as a criminal class, and corresponds with particular policing practices.42
    .
    The process of incarcerating Indigenous people in police cells and watch-houses has become normalised to the point where it is no longer seen as out of the ordinary, that locking Indigenous people in police cells and watch-houses is a normal, justifiable response.43

Arrest as a last resort

  1. The RCIADIC report recommended that the principle of 'arrest as a last resort' be adopted. Recommendation 87 included the following:

    1. All Police Services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders;

    2. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice

  2. Such an approach is also consistent with relevant human rights principles. Article 9(1) of the International Covenant on Civil and Political Rights ('the ICCPR')44 prohibits arbitrary arrest or detention. 'Arbitrariness' is not to be equated with 'against the law' but rather must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. In relation to remanding persons in custody, the UN Human Rights Committee (UNHRC) has stated that: 'remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances '45
  3. In C v Australia,46 the UNHRC considered a communication relating to immigration detention. Relevant to the UNHRC's findings of a breach of article 9(1) was that 'the State party has not demonstrated that, in light of the author's particular circumstances, there were no less invasive means of achieving the same ends '47

  4. The same principles should be applied to arrest. In each case it should be asked whether the decision to arrest was reasonable and necessary and whether or not there were less invasive means of achieving whatever lawful ends prompted the arrest. If the purpose of the arrest was to ensure attendance at court, could this have been achieved by issuing a notice to appear? If the purpose was to prevent the conduct from continuing, could this have been achieved by way of a direction or caution?

  5. The Commission submits, for the reasons set out above, that the arrest of Mulrunji was not reasonable and necessary and was accordingly inconsistent with his human right to not be subjected to arbitrary arrest.

  6. It has also been made clear by Australian courts on numerous occasions that arrest should only be used for minor offences where it is not appropriate to issue a summons. In DPP v Carr, Smart AJ stated:

    The Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.48

  7. In Donaldson v Broomby Deane J stated:
  8. Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.49

  9. The application of the principle of arrest as a last resort in the present case would, in the Commission's submission, have resulted in Mulrunji not being arrested. Its application in similar cases in the future is in the interests of the proper administration of justice and may prevent deaths from occurring.

  10. The Commission notes that the principle of last resort is reflected in General Order A7 of the Northern Territory Police Custody Manual and General Orders, which provides that '[t]he arrest of a person should be an action of last resort '50 Under that Order, supervisors are to ensure that officers under their control are aware of this principle and are to ensure that it is adhered to.51

  11. That Order also provides guidance for the exercise of police discretion in cases involving minor offences. It states:

    Even though authorised by law, members should abstain from making an arrest for a minor offence where proceeding by summons is appropriate. Members should exercise discretion in dealing with minor offences committed inadvertently, in ignorance, or without criminal intent. In any event, caution should be observed to prevent the possibility of an innocent person being arrested.52

  12. The Commission submits that the Coroner should comment that the principle of arrest as a last resort should be clearly reflected in the PPR Act and the OPM. The OPM should also be amended to make explicit reference to the alternatives to arrest that are available to an officer, particularly in cases of minor offences.

  13. The Commission notes that the Cape York Justice Study, conducted in 2001 upon terms of reference from the Queensland Government, recommended that 'police be educated in relation to implementing diversionary strategies'.53 The 'diversionary strategies' considered by the Study included the range of discretionary alternatives to arrest identified by the Commission in the submissions above.54 The Study also recommended that 'police be educated in relation to the rationale and benefits of diversion' to ensure that police discretion is exercised appropriately in this regard. 55

    Arrest and intoxication

  14. Mulrunji was not arrested for public drunkenness, although this remains an offence in Queensland.56 Intoxication was, however, a crucial factor in the circumstances leading up to Mulrunji's death.

  15. The arrest of Mulrunji reinforces the fact that decriminalisation of public drunkenness is not, of itself, an answer to the issue of the overrepresentation of Aboriginal people in custody. The RCIADIC report notes that decriminalisation may simply result in 'alternative charging' whereby public drinking is criminalised through the use of charges such as disorderly behaviour.57 The overlap is clear in the present matter from the evidence of Senior Sergeant Hurley: 'You're going in for a sleep because you're drunk and you were calling us fucking cunts.'58

  16. The RCIADIC report also notes that it should not always be necessary to seek an institutional alternative to arrest: discharge into the care of friends or relatives may be appropriate in some cases.59

  17. Recommendation 81 accordingly provides that legislation decriminalising public drunkenness 'should place a statutory duty upon police to consider and utilize alternatives to the detention of intoxicated persons in police cells. Alternatives should include the options of taking the intoxicated person home or to a facility established for the care of intoxicated persons'.60 The availability of a diversionary facility is considered further below.

  18. Section 210 of the PPR Act imposes a positive duty on police officers to divert from custody persons arrested for being drunk in a public place where it is more appropriate that they be taken to a place of safety to recover from the effects of being drunk. This duty is narrower than that recommended by recommendation 81 of the RCIADIC, which applies to 'intoxicated persons' generally.

  19. As Mulrunji was not arrested for being drunk in a public place, the duty imposed by s 210 of the PPR Act did not apply to Senior Sergeant Hurley. It does not follow, however, that diversion from custody (by discontinuing arrest or choosing not to arrest) was not within Hurley's discretion.

  20. Senior Sergeant Hurley appears to have misunderstood the nature of his discretion in this regard. When asked why he did not consider simply offering Mulrunji a lift home, Hurley replied: 'Well, that's one of the options under drunk diversion, however, he wasn't arrested for that '61 In addition, it seems that Hurley considered it appropriate that Mulrunji be arrested to 'have a sleep'.62

  21. Given this apparent misunderstanding as to the nature of the discretion available to an officer considering the arrest of a person who is intoxicated the Commission submits that there is a need for the PPR Act to be amended to provide explicitly for a statutory duty to consider and utilise alternatives to the arrest and detention of intoxicated persons in police cells, in line with the recommendation of the RCIADIC. The OPM should also be similarly amended.

  22. It is important that such an obligation explicitly apply to both decisions to arrest and to continue arrest. It is not enough that an explicit obligation to consider alternatives to detention applies only after arrest (such as in the limited form contained in s 210). As described by Commissioner Wootten above, arrest can set in train a sequence of events whereby a situation is escalated beyond a matter of public disorder to one involving resisting arrest or assaulting police.

  23. The Commission acknowledges that Senior Sergeant Hurley did not have the option of taking Mulrunji to a diversionary facility on Palm Island rather than into police custody. Senior Sergeant Hurley gave evidence that he 'pushed for a centre to take intoxicated persons to apart from the watch-house' when he was on Palm Island.63 This is a matter considered further below in Part C.

    Training of police regarding policing in Aboriginal communities

  24. The evidence in this inquest suggests inadequacies in the training provided to the officers working on Palm Island at the time of Mulrunji's death. Given the range of complex and challenging issues raised in relation to policing in Aboriginal communities it is imperative that officers be appropriately trained, particularly to ensure the proper exercise of their discretion to arrest.

  25. Constable Steadman's evidence was that he had received no information about how local conditions might affect policing, how street offences might be dealt with or the role of the Aboriginal Police Liaison Officer.64 It would appear that it was anticipated that some induction would have been provided to Constable Steadman by Senior Sergeant Hurley within the first week of Steadman commencing his duties. This was not, however, a 'set routine' and Hurley could not say that such induction happened 'every single time' - 'it happened in the majority of the times'.65 It is unclear from this evidence whether the induction that Hurley anticipated providing contained any formal component relating to appropriate policing in Aboriginal communities such as Palm Island.

  26. Constable Fuller served on Palm Island for 17 months. Prior to her posting on Palm Island, Fuller had not worked in any other Indigenous communities. She received no training specific to policing on Aboriginal communities beyond that received 'through the academy'.66 Fuller received 'no specific assistance in how policing might be more specifically directed' to a community such as Palm Island.67

  27. Constable Fuller did not receive any training on language issues or cross-cultural issues prior to or during her work on Palm Island. She was, however, aware that such issues were addressed in the 'CAPS Book' provided by the Queensland Police Service, a copy of which was available on Palm Island, but to which she had not made reference.68

  28. It would also appear that Sergeant Leafe had received no training in relation to policing issues relevant to Palm Island prior to arriving there.69

  29. Senior Sergeant Hurley gave evidence that he had received training in the form of a one week workshop 'some years ago' in relation to policing Aboriginal communities.70

  30. District Inspector Strohfeldt gave evidence that there was an induction programme for officers serving on Palm Island conducted by the officer-in-charge which included having officers 'addressed by the Community Justice Group, as well as other elders'.71 Strohfeldt's understanding was that, at the time of his evidence, the induction was being carried out by the current officer-in-charge, Senior Sergeant James.72 Strohfeldt indicated that he was concerned by the suggestion that there was no induction programme and stated that he would make inquiries about the current situation.73

  31. The Commission submits that attention must be given to ensuring that appropriate training is being received by officers serving on Palm Island and in other Aboriginal communities.

  32. The need for better training and preparation for police stationed in remote Indigenous communities was an issue considered in the Cape York Justice Study. It considered a trial conducted in Kowanyama which 'involved extended immersion in community life by police officers in a context where they were removed from their policing role.' Part of the training included camping with residents of Kowanyama. The Study recommended:

That the Queensland Police Service identify means for providing experiential training based on the Kowanyama trial for all officers intending to serve in remote Indigenous communities.

The Palm Island Community Justice Group

  1. The Commission notes with concern the evidence of Palm Island Community Council Mayor, Erikah Kyle, that the Community Justice Group was not still in existence on Palm Island.74 District Inspector Strohfeldt gave evidence that the Community Justice Group on Palm Island is not being funded and is not 'functional as an entity'.75 It would appear, however, that some of its (former) members are still prepared to be involved in community justice issues in some capacity.76
  2. The existence of an effective Community Justice Group is, in the Commission's view, essential to effective policing in communities such as Palm Island. Cunneen has observed:

    In many cases where Aboriginal community justice initiatives have flourished there have been successes in reducing levels of arrests and detention, as well as improvements in the maintenance of social harmony. The success of these programs has been acknowledged as deriving from active Aboriginal community involvement in identifying problems and developing solutions.77

  3. In the context of recommendations concerning 'Improving the Criminal Justice System', the RCIADIC report noted the importance of effective communication between police and members of the community: having 'a real say at the local level in how their community is policed'.78 Also of great importance was having strong and supported Aboriginal organisations involved in such a process of ongoing communication.79

  4. To this end, RCIADIC recommendation 215 provided that police services should introduce procedures, in consultation with appropriate Aboriginal organisations, for negotiation at the local level between Aboriginal community organisations and police concerning police activities affecting such communities, including policing methods and problems perceived by Aboriginal people and police.80

  5. The Cape York Justice Study found that: 'Perhaps the single most significant recent community initiative has been the establishment of Community Justice Groups'.81 One of the groups considered in the study was the Palm Island Community Justice Group, then operating as a 'pilot' group. The Study recommended that Community Justice Groups be supported by government and also made a range of recommendations about ensuring appropriate support for such groups, and structures within which they can effectively operate.82

  6. The evidence of police witnesses in the inquest demonstrated an appropriate recognition and acceptance of the importance of the role of a Community Justice Group.83 Senior Sergeant Hurley gave evidence that he had been the police representative on the Palm Island Community Justice Group .84

  7. The Commission submits that immediate attention should be given to ensuring that a Community Justice Group is appropriately funded and supported in the interests of appropriate and effective policing on Palm Island.

    (v) Comments of the Coroner: arrest and policing

  8. The Commission submits that the Coroner should make the following comments arising out of the arrest of Mulrunji:
    C1 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.
    C2 The PPR Act should be amended to reflect the principle of arrest as a last resort. This might be done by amending s 198(1) to provide that a police officer may only arrest an adult without warrant where the officer reasonably suspects that he or she has committed an offence and where they reasonably believe that no other action, in all the circumstances, is appropriate given the matters set out in s 198(a)-(l).
    C3 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.
    C4 The 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.
    C5 The OPM should be amended to reinforce the need to consider and utilise alternatives to the detention of intoxicated persons in police cells.
    C6 The inappropriate arrest of Mulrunji reflects a lack of awareness of the legal bases upon which a person may be arrested without a warrant. The Police Commissioner should consider whether this reflects upon police training generally or a need for further training of Senior Sergeant Hurley.
    C7 The decision to arrest Mulrunji also reflects a lack of awareness of the alternatives to arrest and a confusion about their availability in the case of intoxicated persons. The Police Commissioner should consider whether this reflects upon police training generally or a need for further training of Senior Sergeant Hurley.
    C8 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. The Police Commissioner should consider whether this reflects upon police training generally or a need for further training of Senior Sergeant Hurley.
    C9 Particular attention should be given by the Police Commissioner to the training of officers working in Aboriginal communities. Such training should be provided prior to any service in Aboriginal communities and should deal particularly with the recommendations of the RCIADIC and how these are relevant to policing and the exercise of discretion to arrest. Training should include 'experiential training' based on the Kowanyama trial, as identified in the Cape York Justice Study.
    C10 Immediate attention should be given by the Queensland Government to the proper funding and support of the Community Justice Group on Palm Island.

C DIVERSION FROM CUSTODY ON PALM ISLAND - DIVERSIONARY CENTRES AND COMMUNITY PATROLS

  1. There are presently no designated facilities on Palm Island to which intoxicated persons can be diverted from police custody to recover safely from the effects of their intoxication. The Commission submits that there is an urgent need for appropriate diversionary facilities to be made available on Palm Island.

  2. There is also no alternative to police intervention in cases where intoxicated persons are disturbing the peace or posing a potential danger to themselves and/or others on Palm Island. The Commission submits that urgent attention should be given to providing appropriate funding and support for the development and operation of a 'community patrol' on Palm Island.

  3. The Commission is conscious that for diversionary measures to be effective, the particular needs and wishes of the community must be considered and respected. The Commission therefore does not make detailed submissions as to the precise form that diversionary measures should take on Palm Island. There is, however, sufficient evidence of the success of particular types of programmes in other communities to provide a basis for comments by the Coroner as to urgent action that should be taken to provide appropriate diversionary options for the Palm Island community.

  4. These are matters falling clearly within the power of the Coroner to comment under s 46(1) of the Coroners Act. The decision to arrest Mulrunji, a matter closely connected with his death, should not be considered in isolation from the issue of alternatives to police involvement and arrest. These are issues that relate closely to public health and safety, the administration of justice and ways to prevent deaths from happening in similar circumstances in future.

    (i) Recommendations of RCIADIC and relevant human rights principles

  5. RCIADIC recommendation 80 provides that there should be (in conjunction with decriminalisation of public drunkenness) 'adequately funded programs to establish and maintain non-custodial facilities for the care and treatment of intoxicated persons'.85

  6. The RCIADIC report notes that the involvement of Aboriginal people and organisations 'in the management and day-to-day operation of alternative care facilities should be sought and encouraged'.86

  7. As discussed above, one of the strong themes of the RCIADIC report was the need to reduce the rate of incarceration of Aboriginal people for offences such as public order offences and public drunkenness. The report states that

    positive efforts must be made to move public drunkenness outside the realm of the criminal justice system This should involve not only dissuading police from using police cells for the detention of intoxicated persons but also in developing civilian alternatives to police apprehensions of intoxicated persons.87

  8. The RCIADIC report also considers the work of 'night patrols' and recommends that local communities be encouraged to develop arrangements which are suitable to their particular circumstances.88

  9. The availability of non-custodial facilities for the diversion of intoxicated people from police custody is important in supporting policing that appropriately regards arrest as a last resort. Such facilities are also consistent with human rights principles, discussed above, that require detention to be necessary and proportionate in the circumstances and that there be 'no less invasive means' of achieving the relevant purpose.

  10. Where the purpose of arrest is to prevent ongoing behaviour related to drunkenness or to preserve the safety of an intoxicated person and there is no non-institutional alternative (such as taking the person home), such purposes may be achieved with the least restriction upon an individual's right to liberty by having non-custodial facilities available that are designed to meet this need.

  11. As discussed below, diversionary centres may also play a broader role in improving the health and wellbeing of intoxicated people coming into contact with police. Making such centres available is therefore also consistent with the right to 'the enjoyment of the highest attainable standard of physical and mental health', recognised by Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).89

    (ii) Recognised benefits of diversionary centres

  12. As noted above, Senior Sergeant Hurley gave evidence that he 'pushed for a centre to take intoxicated persons to apart from the watch-house' when he was on Palm Island.90 Townsville District Inspector Strohfeldt also gave evidence that he had been involved in preparing reports with a view to introducing a diversionary centre on Palm Island, but that nothing had been achieved to date.91

  13. The success of diversionary centres in Queensland has been documented in the report of McDonnell-Phillips to the Department of Aboriginal and Torres Strait Islander Policy (DATSIP).92 This report concludes that diversionary centres
  14. have had a significant positive impact on the lives of a group of people who are very vulnerable and needy, yet difficult and challenging to care for. The services provided by Diversionary Centres are well regarded by other stakeholders (including Police, [Alcohol, Tobacco and Other Drugs Services], hospital, Department of Health, [Family, Youth and Community Care Queensland] staff) and clients. Services are seen to be 'vital for our community'.93

  15. The important role of diversionary centres in dealing with problems associated with public drunkenness was also recognised in the report of the Victorian Parliament Drugs and Crime Prevention Committee's Inquiry into Public Drunkenness ('the Victorian DCPC Report').94 That report considered the experiences in jurisdictions across Australia. It noted the following in the context of the Western Australian experience with 'sobering-up centres':

The Western Australian Drug Abuse Strategy Officer is unequivocally of the view that:

Sobering-up centres provide[d] significant gains for the communities in which they operate[d] and result[ed] in a reduction in:

  • Police time and resources previously involved in the detention and monitoring of intoxicated persons in lockups;
  • Court time and resources;
  • Levels of domestic violence and other social problems and other problems associated with alcohol abuse; and
  • The burden imposed on the health system as a consequence of people being hospitalised for alcohol related illnesses and accidents 95
  1. The Victorian DCPC Report recommended the establishment of 'substantial numbers' of 'sobering-up centres' as part of an approach to the subject of public drunkenness.96 The report also recognised that such centres 'must be viewed as only one part of a holistic approach to Indigenous health and wellbeing'.97

  2. Importantly, diversionary centres may play a broader role than simply that of 'sobering-up' centre. They can potentially provide information, counselling and referral to people who need help dealing with alcohol or other substance abuse.

  3. Diversion of intoxicated people in appropriate circumstances from police custody to a diversionary centre also relocates the core of the problem of alcohol and substance abuse from the field of 'law and order' to that of health and welfare. The Commission submits that this is clearly the appropriate context in which the issue should be addressed.

  4. Diversionary centres may also provide a basis for greater community involvement, through employment and management, in dealing with the problem of alcohol and substance abuse.98 This may provide an important means by which a community can engage directly with the problem and find its own ways to address it.

  5. Vital to the success of any diversionary scheme is the development of appropriate protocols with police and the proper training of officers as to the scope of the services they can offer and the circumstances in which they may be used.99

  6. It was a recommendation of the Palm Island Select Committee of the Queensland Legislative Assembly that the Minister for Aboriginal and Torres Strait Islander Policy and the Minister for Police should, as a matter of urgency, collaborate with the Palm Island Indigenous Community/Police Consultative Group (formed in March 2005) to implement a diversion from custody option for Palm Island.100 The Queensland Government has indicated that it supports this recommendation in principle.101

  7. The Commission submits that this is a matter that requires urgent attention and that the Coroner should comment accordingly.

    (iii) The role of 'community patrols'

  8. The success of 'community patrols' (also referred to as 'Night Patrols' or 'Foot Patrols') in dealing with issues of public order and public drunkenness without the need for police intervention is well-recognised. The comprehensive report by the Commonwealth Attorney-General's Department Crime Prevention Branch, 'An Overview of Night Patrol Services in Australia', concluded:

    The research indicates that, when appropriately established, resourced and managed, night patrols and similar services fulfil an important function in their communities In many Indigenous communities across Australia, night patrols are already an important community justice mechanism, allowing communities to monitor and control their own social environment and reduce unnecessary contact with the criminal justice and related systems.102

  9. As reflected in this conclusion, a central role of community patrols, especially relevant to the present case, is that they allow for situations involving persons who are intoxicated and/or engaged in socially disruptive behaviour to be addressed without the need for police involvement and the potential escalation of a situation.

  10. At the same time as minimising the need for police involvement in some situations, community patrols also have the potential to build cooperation and mutual respect and support with local police.103

  11. It has been suggested that in many communities, particularly remote Aboriginal communities, community patrols 'often represent the only consistently available mechanism for ensuring social order, preventing or defusing potentially violent situations and protecting the vulnerable'.104

  12. Community patrols can also play a significant role in 'assisting vulnerable young people by providing transport home and/or referring them on to support services'.105

  13. In addition, community patrols can work 'in an integrated way with sobering up shelters'.106 Indeed it has been argued that such patrols are vital in promoting the success of diversionary centres.107

  14. Senior Sergeant Hurley indicated in his evidence his support for a community patrol on Palm Island. He gave evidence that there was some form of night patrol in operation when he commenced duty on Palm Island. He suggested that the patrol may have ceased because of 'a funding issue' but that they 'worked very well' prior to this point.108

  15. It is relevant to note the recommendation of the Commonwealth Attorney-General's Department in relation to funding of night patrols:

    Lack of resources remains a major problem for night patrols and similar services across Australia. Funding sources are disparate and unreliable, leaving little room for planning.109

  16. It was also a significant finding of that report that ongoing support is needed to ensure the success of a community patrol.110 Such support needs to start from the outset of such projects to allow them to be developed from within the community and respond to its needs. Support must then continue to ensure that the project does not fail when it confronts the challenges inherent in dealing with complex social problems such as public drunkenness and 'anti-social' behaviour.

    (iv) Comments of the Coroner: diversionary centres and community patrols

  17. The Commission submits that the Coroner should make the following comments in relation to the availability of alternatives to police intervention and arrest on Palm Island:

    C11

    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.

    C12

    Such a centre should be established following consultation with the Palm Island community and its design and operation must be responsive to local conditions and needs.

    C13

    The establishment of a diversionary centre should be accompanied by the development of a protocol with the Queensland Police Service, in conjunction with the Palm Island community, as to its use as an alternative to detention.

    C14

    The establishment of a diversionary centre should also be accompanied by training of police officers working on Palm Island as to the use of the centre as an alternative to detention.

    C15

    Urgent attention should be given by the Queensland Government to the establishment of a community patrol on Palm Island.

    C16

    The structure and functions of such a community patrol should be developed following consultation with the Palm Island community.

    C17

    It is vital that any community patrol that is implemented on Palm Island is adequately supported and funded to ensure its success.

D ASSESSMENT AND MONITORING OF HEALTH

  1. This section examines the assessment and monitoring of Mulrunji's health following his admission into custody at the Palm Island watchhouse.

  2. The Commission submits that Senior Sergeant Hurley failed to conduct any assessment of Mulrunji's health at any time prior to his death. There was no valid reason for this failure.

  3. There was also no adequate check conducted as to the state of Mulrunji's health after he was put in the cell in the Palm Island watchhouse.

  4. The Commission submits that these failures display a need for changes to police training, policy and practice to ensure that people in police custody receive an adequate level of care.

  5. The failure to conduct an assessment or proper check of Mulrunji's health is clearly a matter 'connected with' his death. 111 The Commission submits that the Coroner should make a range of comments on this issue, related to public health and safety and ways to prevent deaths from happening in similar circumstances in future.

    (i) Obligations to assess and check health of persons detained

  6. There is no explicit obligation in the PPR Act upon a police officer to undertake appropriate health assessment or conduct a check of the health of persons detained in their custody.

  7. The OPM provides the following general recognition of the obligations of officers to those in their custody:

  • Officers have a duty of care to those persons in their custody, which is recognised in both criminal and civil law. Each is derived from notions of common humanity.112

  • Officers who have custody of persons are to ensure that persons are treated with dignity and that they are provided with the necessaries of life.113

  • Officers have a duty to exercise reasonable care to protect all prisoners from illness or injury during their detention and to exercise reasonable care in the provision of food, medical care, shelter, etc. for those prisoners.114

  • While officers are not trained or equipped to perform medical assessments of prisoners, officers who have custody of another person should take all reasonable care to provide for the health of that person.115
  1. The OPM also contains a range of more detailed instruction to officers as to the manner in which they are to fulfil their duty of care. It contains the following order at 16.9.1:

Where a person has been taken into custody, the responsible officer is to:

(i) inspect and assess the prisoner as soon as practicable;

(ii) determine how frequently the prisoner needs to be inspected and assessed (the higher the risk, the more frequent the need for inspection and assessment);

(iii) arrange, where it is considered necessary, medical advice, assessment or treatment for the prisoner; and

(iv) continue to inspect and assess the prisoner at regular intervals until the prisoner is transferred into the custody of another person, or released.

  1. Similarly, at 16.9.4, the OPM provides for the following procedure:

Where a prisoner has been accepted into custody at the watchhouse, the charging officer should assess the prisoner to determine:

(i) whether the prisoner is apparently in need of medical treatment;

(ii) whether the prisoner should be confined alone or with other prisoners; and

(iii) the frequency of prisoner inspections.

The charging officer should record in the 'Other Comments' section of the Watchhouse Custody Register entry, details of:

(i) a prisoner's need for medical treatment;

(ii) the need to isolate a prisoner; or

(iii) any increase in the frequency of prisoner inspections.

  1. The OPM provision 16.13.1 relating to assessment of prisoners provides that:

An officer assessing a prisoner should:

(i) observe the prisoner's physical appearance and demeanour;

(ii) seek from the prisoner, police or other persons who have had contact with the prisoner, information that will assist in the management of the prisoner;

(iii) determine the health requirements of the prisoner, including the provision of medication, obtaining of medical assistance for minor injuries or illnesses; and

(iv) determine whether the prisoner is fit to be held in the watchhouse or should be transported for medical attention.

(v) request the prisoner to sign the health questions section of the Watchhouse Custody Register entry in respect of that prisoner when processed; and

(vi) where possible, if the prisoner is unable or refuses to sign the Watchhouse Custody Register, ask the health questions again in the presence of another officer and record the procedure against the relevant Watchhouse Custody Register entry.

  1. The OPM at 16.13.3 provides for the inspection of prisoners and requires an inspection officer to make an assessment of whether a prisoner 'is or apparently is in need of medical treatment'. It further provides for this procedure for inspection:

The inspection officer/independent inspection officer should:

(i) prior to the initial inspection, read the information in the Watchhouse Custody Register;

(ii) observe the prisoner's physical appearance or demeanour;

(iii) ask prisoners who are awake if they are well;

(iv) pay particular attention to any prisoner apparently intoxicated to ensure that intoxication is not masking symptoms of a serious medical condition;

(v) ensure that a sleeping prisoner is breathing comfortably and appears well;

(vi) wake a sleeping prisoner when the officer is unsure or is concerned about the condition of that prisoner; and

  1. Appendix 16.1 of the OPM notes that officers 'should be aware when assessing persons that a person who is apparently intoxicated may in fact be displaying symptoms of a more serious injury or condition'. That appendix provides a list of conditions 'which may be consistent with, and which are similar to, those symptoms generally associated with intoxication'.

    (ii) What assessment of Mulrunji's health was undertaken?

  2. No attempt was made to ask Mulrunji any questions in relation to his health.116 No meaningful assessment was made of Mulrunji's health. Senior Sergeant Hurley's assertion that there was an 'assessment' made of Mulrunji's health despite the absence of any questions being asked of him should not be accepted. 117 Any proper assessment would have shown that Mulrunji was gravely unwell. The evidence suggests that Mulrunji was in pain.118

  3. Senior Sergeant Hurley agreed that when Mulrunji was put in the cell he was 'virtually limp'.119 This was a significant change in his demeanour which followed his fall to the floor of the watchhouse. Hurley stated that he thought that this was because Mulrunji was 'foxing'.120

  4. Senior Sergeant Hurley sought to explain his failure to ask any questions of Mulrunji concerning his health on the basis that he was initially 'too aggressive'121 and then, when first 'checked' in the cell, he was 'asleep'.122 Neither explanation is a reasonable one in the circumstances. Mulrunji was not aggressive when he was put in the cell.123 He was 'virtually limp'. No attempt was made to ask Mulrunji questions through the cell door.124

  5. No attempt was made to wake Mulrunji to ask him questions when he was subsequently 'checked'. Given that Mulrunji had not been assessed when first put into the cell, the failure to make any attempt to wake him when first 'checked' is a significant one. While the OPM may suggest that it is appropriate that a prisoner who appears to be sleeping need not be woken125 (a matter addressed further below), any such suggestion is premised on an adequate assessment having first been conducted.

  6. Senior Sergeant Hurley's 'check' of Mulrunji was conducted in approximately three seconds.126 All Hurley did was to 'check' that Mulrunji was breathing.127 In the circumstances, in particular the sudden change in Mulrunji's demeanour prior to being placed in the cell and the failure to conduct any meaningful assessment prior to this 'check', this was seriously inadequate.

  7. Senior Sergeant Hurley completed the Watchhouse Custody Register for Mulrunji.128 Under the heading 'Prisoner Assessment', the question is asked 'In need of medical treatment or assessment?' Hurley marked the answer to this question 'No'.129

  8. It was unclear what, if any, training Senior Sergeant Hurley had received in relation to the assessment of prisoners required for the completion of the Custody Register.130 The actions of Hurley suggest, however, that he was not adequately trained in the management of the health of prisoners.

  9. The evidence of Sergeant Leafe also suggests a lack of familiarity with the provisions of the OPM relating to the care of intoxicated persons, including the problem of intoxication masking the symptoms of more serious medical problems.131

  10. Senior Sergeant Hurley did not comply with the procedures set out in the OPM, including:

    • Where a person is taken into custody, the responsible officer (Hurley) is required to 'inspect and assess the prisoner as soon as practicable'.132 No meaningful 'inspection' or 'assessment' took place at any time.

    • Similarly, where a prisoner is accepted into custody at a watchhouse, the charging officer (Hurley) is required to 'assess the prisoner to determine whether the prisoner is apparently in need of medical treatment'.133 This clearly did not take place.

    • An officer assessing a prisoner should 'seek from the prisoner information that will assist in the management of the prisoner'.134 Hurley failed to do so. His reasons for failing to do so are inadequate to justify this failure.

    • The OPM procedure contemplates that if a prisoner is not co-operative, they should be asked the health questions 'again in the presence of another officer and record the procedure against the relevant Watchhouse Custody Register'.135 No attempt was made to ask Mulrunji any questions in relation to his health either initially or in the presence of another officer.

(iii) Recommendations of RCIADIC and relevant human rights principles

  1. The following recommendations of RCIADIC are directly relevant to the present inquest (emphasis added):

Recommendation 126

That in every case of a person being taken into custody, and immediately before that person is placed in a cell, a screening form should be completed and a risk assessment made by a police officer or such other person, not being a police officer, who is trained and designated as the person responsible for the completion of such forms and the assessment of prisoners. The assessment of a detainee and other procedures relating to the completion of the screening form should be completed with care and thoroughness.

Recommendation 133

That:

  1. All police officers should receive training at both recruit and in-service levels to enable them to identify persons in distress or at risk of death or injury through illness, injury or self-harm;

  2. Such training should include information as to the general health status of the Aboriginal population, the dangers and misconceptions associated with intoxication, the dangers associated with detaining unconscious or semi-rousable persons and the specific action to be taken by officers in relation to those matters ;

  3. In designing and delivering such training programs, custodial authorities should seek the advice and assistance of Aboriginal Health Services and Aboriginal Legal Services; and

  4. Where a police officer or other person is designated or recognised by a police service as being a person whose work is dedicated wholly or substantially to cell guard duties then such person should receive a more intensive and specialised training than would be appropriate for other officers.
  1. Commissioner Johnson noted in the RCIADIC report that it is

    essential that active enquiries are made of the person being taken into custody regarding his/her medical and other needs. It is not enough to merely wait for the prisoner to make some form of complaint about his/her health.136

  2. The right to life, set out in article 6 of the ICCPR, imposes an obligation to take measures to prevent death. In Lanstova v Russian Federation137 the UN Human Rights Committee observed that 'the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may reasonably be expected.'138

  3. Adequate assessment of health and welfare is also required to comply with the human right of all persons deprived of their liberty 'to be treated with humanity and with respect for the inherent dignity of the human person': Article 10(1) of the ICCPR. Relevant in interpreting and applying this right is the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ('the Body of Principles').139 Principle 24 of the Body of Principles provides that:

  4. A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary.

  5. The Commission submits that the treatment of Mulrunji while in custody was not consistent with his human rights. The failure to conduct a proper assessment of his health and welfare was not consistent with his right to life.140 It also failed to treat him with humanity and with respect for his inherent human dignity.

  6. The Commission submits that the death of Mulrunji suggests a need for greater training of police officers in making health assessments of people in their custody. Such training is particularly required for officers, such as Senior Sergeant Hurley, in charge of watchhouses and those officers should receive a more intensive and specialised training.

  7. The Commission submits that the Coroner should comment on the apparent need for improved training in this area. The content and scope of such training should take into account the RCIADIC recommendations above.

    (iv) Are the OPM procedures adequate?

  8. The Commission submits that the OPM does not provide adequate guidance to officers to enable them to properly assess the health of persons in their custody.

  9. The evidence of Associate Professor David Wells141 contains relevant comment in this regard. He notes that the document 'Townsville Police District, Palm Island Station, Standing Order, Watchhouse' contains only seven lines out of forty-eight pages in relation to prisoner inspections and these lines make no mention of how supervision and monitoring are to be conducted.142

  10. In relation to OPM 16.3, Associate Professor Wells states (emphasis added):

    The OPM - Custody (16.13) deals with the health of prisoners. There are a number of references to the responsibilities of officers should they detect serious health or injury problems in prisoners. Direction is made that prisoners are to be checked at intervals of no greater than one hour but there are no specific directions as to how to check for the conscious state of individuals. Section 13.13.3 talks of asking awake prisoners if they are well but only to ensure that a sleeping prisoner is 'breathing comfortably and appears well'. There is a further direction that officers should wake a sleeping prisoner if there is any concern about the condition but the directions do not give any parameters on how that concern might be raised.143

  11. Associate Professor Wells goes on to comment as follows:
  12. There is a strong argument to be made that all individuals who are intoxicated and placed in police custody should be required to provide a verbal response every half-hour. This means that individuals who are unable to provide a verbal response or who appear confused are directed towards immediate medical attention.144

  13. In addition to the concerns raised by Associate Professor Wells, the Commission notes that the OPM provides a caution to officers in relation to the masking effect that intoxication may have in relation to more serious medical conditions.145 Appendix 16.1 of the OPM provides a list of the serious medical conditions that may be masked by intoxication. However, it seems that no guidance is provided for officers in the Appendix, or elsewhere in the OPM, as to how officers might distinguish between intoxication and a more serious condition. It would also appear that no training was received by Senior Sergeant Hurley in relation to this.146

  14. The Commission submits that the Coroner should comment that the Queensland Police OPM should be urgently reviewed with a view to providing a much greater level of practical guidance to officers on how to conduct health assessments and checks of persons in their custody.

  15. Associate Professor Wells attaches to his report a copy of the Victoria Police Medical Checklist. The Commission submits that this checklist provides a basis for appropriate assessment of persons being held in police custody and that the Coroner should comment that this checklist should be introduced in Queensland as a matter of urgency.

    (v) Comments of the Coroner: Assessment and Monitoring of Health

  16. The Commission submits that the Coroner should make the following comments in relation to the assessment and monitoring of the health of persons held in police custody:
C18

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.

C19 The OPM should be amended to strengthen the direction given to police in relation to the conduct of a thorough initial health assessment of any person brought into police custody. In particular, the OPM should note that where a person taken into custody is unable initially to be properly assessed because they are violent, aggressive or non-cooperative, consideration must be given to conducting an assessment by another means (such as through the cell door) or having another officer conduct the assessment. In the event that an assessment still cannot be conducted, further attempts must be made at the earliest available opportunity.
C20 The OPM should be urgently reviewed with a view to providing a much greater level of practical guidance to officers on how to conduct health assessments and checks of persons in their custody.
C21

Pending such review, the OPM should be immediately amended to incorporate the Medical Checklist currently used by Victorian Police. Queensland police should receive training in the use of that checklist and commence using it immediately.

C22 The failure to properly assess Mulrunji's health suggests a lack of appropriate training for officers in the conduct of health assessments of people in custody. The Police Commissioner should urgently consider increased and improved training of police officers in relation to health assessments, particularly for officers in charge of watchhouses who should receive more intensive and specialised training.
C23 The content and scope of such training should take into account the RCIADIC recommendations, in particular:

  • Such training should include information as to the general health status of the Aboriginal population, the dangers and misconceptions associated with intoxication, the dangers associated with detaining unconscious or semi-rousable persons and the specific action to be taken by officers in relation to those matters;
  • In designing and delivering such training programs, custodial authorities should seek the advice and assistance of Aboriginal Health Services and Aboriginal Legal Services.

E OTHER ISSUES CONCERNING SUPERVISION, MONITORING AND CARE IN CUSTODY

  1. A number of other issues arose in the course of the inquest that were connected with the death of Mulrunji and relate to the prevention of death in similar circumstances and public health and safety.

    (i) Cell monitoring equipment

  2. Senior Sergeant Hurley was not aware of a number of features of the cell monitoring system in use in the Palm Island watchhouse at the time of Mulrunji's death. Most importantly, he did not know that the intercom channel could be 'opened up' to allow for continuous audio monitoring of the cells.147

  3. It is a significant shortcoming for the officer in charge of a watchhouse to be unaware of a relevant feature of the equipment available for monitoring people in custody. This suggests a need for greater training of officers in relation to the operation of such equipment who are in positions that may require them have responsibility for people held in custody.

    (ii) Training in resuscitation

  4. Senior Sergeant Hurley gave evidence that he had completed the written component of training in resuscitation, but had not completed the practical component.148

  5. The Commission submits that it is a significant shortcoming for the officer in charge of a watchhouse, who bears responsibility for the care of people held there in custody, not to have undertaken comprehensive training in resuscitation. Training in first aid and resuscitation should be mandatory for all officers who are in charge of a police watchhouse.

    (iii) Monitoring of people held in the Palm Island watchhouse

  6. It emerged from evidence called in this Inquest that people held in custody on Palm Island were left unattended for up to an hour while police undertook other duties. This was not standard practice, but nor was it a rare occurrence. Senior Sergeant Hurley's evidence was that it happened 'a lot' and that it was 'a concern'.149 When people were left unattended in the cells there was no way of monitoring them.150

  7. In part it would appear that this practice was the result of inadequate staffing levels on Palm Island.151 However, it was clear from the evidence that it was not always a matter of operational necessity.152

  8. Such a practice is clearly unacceptable under any circumstances. The Commission submits that a review should be urgently conducted to ensure that this practice is not undertaken elsewhere in Queensland and that staffing levels are adequate to ensure that persons kept in custody are never left unattended.

    (iv) Comments of the Coroner: supervision, monitoring and care in custody

  9. The Commission submits that the Coroner should make the following comments in relation to the issues of supervision, monitoring and care identified above:
C24 The Police Commissioner should consider the need for greater training of officers who are in positions that may require them to have responsibility for people held in custody, in relation to monitoring equipment.
C25 Training in first aid and resuscitation should be mandatory for all officers who are in charge of a police watchhouse.
C26 People in custody should not be left unmonitored under any circumstances. The Police Commissioner should conduct an urgent review to ensure that this practice is not undertaken elsewhere in Queensland and that staffing levels are adequate to ensure that persons kept in custody are never left unmonitored.

F THE INVESTIGATION OF MULRUNJI'S DEATH

  1. The Commission submits that the investigation of Mulrunji's death by police lacked the appearance of independence and impartiality. In addition, a number of aspects of the investigation were flawed and the reliability of some aspects of the evidence was undermined.

  2. The investigation of Mulrunji's death is a matter connected with the death that relates to the administration of justice. The Commission submits that it is appropriate for the Coroner to comment, pursuant to s 46(1), on a range of aspects of the investigation that reveal a need for changes to police policy, practice and training.

    (i) The need for a thorough and impartial investigation

  3. As has been noted, the Commission submits that a proper investigation of deaths in custody is essential for the adequate protection of human rights. Such an investigation will form a central part of an 'effective remedy' in the event that there has been a breach of human rights related with the death.153
  4. The RCIADIC report contained a range of detailed recommendations in relation to investigation of deaths in custody, designed to ensure their integrity. These included (emphasis added):

Recommendation 32:

That the selection of the officer in charge of the police investigation into a death in custody be made by an officer of Chief Commissioner, Deputy Commissioner or Assistant Commissioner rank.

Recommendation 33:

That all officers involved in the investigation of a death in police custody be selected from an Internal Affairs Unit or from a police command area other than that in which the death occurred and in every respect should be as independent as possible from police officers concerned with matters under investigation. Police officers who were on duty during the time of last detention of a person who died in custody should take no part in the investigation into that death save as witnesses or, where necessary, for the purpose of preserving the scene of death.

Recommendation 35:

That police standing orders or instructions provide specific directions as to the conduct of investigations into the circumstances of a death in custody. As a matter of guidance and without limiting the scope of such directions as may be determined, it is the view of the Commission that such directions should require, inter alia, that:

  1. Investigations should be approached on the basis that the death may be a homicide. Suicide should never be presumed;

  2. All investigations should extend beyond an inquiry into whether death occurred as a result of criminal behaviour and should include inquiry into the lawfulness of the custody and the general care, treatment and supervision of the deceased prior to death;

  3. The investigations into deaths in police watchhouses should include full inquiry into the circumstances leading to incarceration, including the circumstances of arrest or apprehension and the deceased's activities beforehand;

  4. In the course of inquiry into the general care, treatment or supervision of the deceased prior to death particular attention should be given to whether custodial officers observed all relevant policies and instructions relating to the care, treatment and supervision of the deceased; and

  5. The scene of death should be subject to a thorough examination including the seizure of exhibits for forensic science examination and the recording of the scene of death by means of high quality colour photography.

  1. Commissioner Johnson summarised the reasons for these recommendations in the RCIADIC report as follows: 'It is a question of establishing and maintaining a system which will evoke trust. It is not only a question of justice but of justice being seen to be done'.154

    (ii) Coroner's guidelines and OPM policies

  2. The need for a thorough and impartial investigation of a death in custody is stressed in the State Coroner's Guidelines:

    Deaths in custody warrant particular attention because of the responsibility of the state to protect and care for people it incarcerates, the vulnerability of people deprived of the ability to care for themselves, the need to ensure the natural suspicion of the deceased's family is allayed and public confidence in state institutions is maintained. Further, a thorough and impartial investigation is also in the best interests of the custodial officers.155

  3. The State Coroner's Guidelines provide that investigations into all deaths (not just deaths in custody) 'must commence from the premise that they are potential homicide cases.'156

  4. The OPM provides that investigations of 'police related incidents' such as deaths in custody 'are to be conducted expeditiously and impartially'.157 OPM 1.17 places investigation of police related incidents 'under the direction of the regional crime coordinator unless otherwise directed by the Internal Investigation Branch, Ethical Standards Command or the Crime and Misconduct Commission'. It further notes:

    In cases involving custody police related incidents, a regional crime coordinator should appoint an investigator from a police establishment other than from where the incident occurred, or where the officers or members directly involved in the incident are stationed.

  5. Under the heading 'integrity of investigations', the OPM provides as follows:

    First response officers, regional duty officers and regional crime coordinators should ensure that the integrity of independent versions of members directly involved and members who are witnesses to a police related incident is preserved as far as practicable.

    In this regard, members directly involved in the incident or who are witnesses to the incident should be interviewed separately and as soon as practicable following the incident. It is highly desirable that interviews occur prior to any critical incident stress debriefing, including any defusing. Members directly involved in the incident or who are witnesses to the incident should not discuss the incident amongst themselves prior to being interviewed.

  6. Without directly referring to the possibility that a death in custody may be a homicide, the OPM states that an officer conducting an investigation into a death in custody should 'not presume suicide or natural death regardless of whether it may appear likely'.158

    (iii) Independence of the investigation into Mulrunji's death

  7. The investigation of the death of Mulrunji by officers who knew Senior Sergeant Hurley and/or were from within Townsville District Command was, in the Commission's submission, unsatisfactory and inappropriate. The involvement of such officers undermined the credibility of the investigation and its appearance of independence and impartiality. The conduct of investigating officers and Senior Sergeant Hurley during the first day of the investigation further added to this problem.

    Involvement of officers from Townsville and Palm Island

  8. Palm Island falls within Townsville District Command. District Inspector Strohfeldt was the District Inspector for the Townsville District and, as such, was responsible for policing on Palm Island.159 Senior Sergeant Hurley reported directly to Strohfeldt.160

  9. By reason of the direct relationship established by this chain of command between Palm Island and Townsville police and by virtue of the geographical relationship between those places (both their proximity and the nature of Townsville as the regional hub), it was inappropriate, in the Commission's view, for officers from Townsville to be involved in the investigation of the death of Mulrunji in police custody. Such involvement had the potential to raise a very real perception of bias.

  10. Despite this potential, the primary investigator into Mulrunji's death was Detective Senior Sergeant Kitching, the officer in charge of the Townsville Criminal Investigation Branch ('CIB'). Detective Senior Sergeant Kitching was appointed as the primary investigator into the death of Mulrunji by Detective Inspector Webber, the Regional Crime Coordinator for the Northern Police Region, stationed in Townsville.

  11. Detective Sergeant Robinson was also involved in the investigation. He was the Officer in Charge of the Palm Island CIB: he worked in the same police station as Senior Sergeant Hurley on a daily basis.

  12. The selection of officers for the investigation team from Townsville CIB and Palm Island CIB was contrary to RCIADIC recommendation 33, extracted above, which requires such officers to be selected 'from an Internal Affairs Unit or from a police command area other than that in which the death occurred'.

  13. Also involved in the investigation was Inspector Williams of the Ethical Standards Command. The Commission submits that the involvement of Williams was inadequate to bring to the investigation the requisite degree of independence and appearance of integrity in the circumstances, particularly as Williams was not the primary investigator.

  14. The appointment of Detective Senior Sergeant Kitching by Detective Inspector Webber was in accordance with OPM 1.17 which places investigation of police related incidents 'under the direction of the regional crime coordinator'. It was, however, inconsistent with RCIADIC recommendation 32, extracted above, which requires appointment of the officer in charge of an investigation by the Chief Commissioner, Deputy Commissioner or Assistant Commissioner.

  15. The Commission submits that the OPM should be amended to require appointment of the officer in charge of an investigation into a death in custody by the Chief Commissioner, Deputy Commissioner or Assistant Commissioner.

  16. The OPM should also be amended to require that investigators into deaths in custody be from outside the region (rather than 'police establishment' as in the OPM, above) where the incident occurred.

  17. The OPM should also make explicit the need to consider, when selecting officers for involvement in an investigation of a death in custody, the impartiality and the appearance of impartiality in the conduct of the investigation.

    Relationships between investigators and Senior Sergeant Hurley

  18. The perception of a lack of independence in this matter is fuelled by the personal relationships that in fact existed between members of the investigation team and Senior Sergeant Hurley.

  19. Detective Senior Sergeant Kitching knew Senior Sergeant Hurley 'reasonably well'.161 Kitching's evidence was that Hurley was not 'a personal friend, but I knew him. If I saw him in the street, I'd certainly say g'day to him and stop and have a talk.'162 When it was put to Kitching that he and Hurley were 'well-disposed' to each other, he agreed: 'Definitely, yes '163

  20. Detective Senior Sergeant Kitching did not disclose the nature of his relationship with Hurley to Detective Inspector Webber.164 Webber did not ask about any relationship and expected that he would be told if Kitching was 'uncomfortable conducting the investigation'.165

  21. Detective Sergeant Robinson was a friend of Senior Sergeant Hurley.166 Robinson was present during the first recorded interview with Hurley in relation to this incident, conducted by Kitching.167 Robinson was also involved in the first interview with Roy Bramwell, in which Bramwell claimed to have seen Hurley assaulting Mulrunji in the watchhouse.168 Robinson was also involved in other interviews with member of the Palm Island community who were witnesses.169

  22. The Commission submits that the OPM should be amended to explicitly require officers involved in an investigation into a death in custody to disclose any relationship with an officer involved in, or a witness to, that death.

    The conduct of investigating officers

  23. The perception of partiality is further fuelled by the conduct of the investigating officers and Senior Sergeant Hurley.

  24. Senior Sergeant Hurley was a 'person of interest' in an investigation that was apparently being treated as a potential homicide.170

  25. Despite this, the investigating officers were picked up from the Palm Island airport by Senior Sergeant Hurley upon arrival on the afternoon of 19 November 2004. Hurley also drove Detective Inspector Webber, Detective Senior Sergeant Kitching, Inspector Williams and a police photographer to the location where the arrest occurred.171

  26. Most extraordinarily, Detective Inspector Webber, Detective Senior Sergeant Kitching, Detective Sergeant Robinson and Senior Sergeant Hurley ate dinner at Hurley's house on Palm Island on 19 November 2004.172 This was the first day of the investigation. It was the day that Mulrunji died.

  27. Social contact between a 'person of interest' in an investigation and those conducting the investigation is clearly inappropriate at any time during an investigation.

  28. The Commission submits that the OPM should be amended to state more clearly the need for officers involved in an investigation to consider the impartiality and the appearance of impartiality in the conduct of the investigation at all times.

    (iv) 'Contamination' of witnesses' evidence

  29. Prior to being interviewed, Senior Sergeant Hurley discussed with Sergeant Leafe and Police Liaison Officer Bengaroo the events that had taken place at the watchhouse prior to Mulrunji's death.173

  30. Senior Sergeant Hurley also viewed the video footage of Mulrunji in the watchhouse cell, prior to being interviewed.174

  31. The Commission submits that both of these events had the potential to 'contaminate' the evidence of these key witnesses, and the integrity of the investigation is undermined by this potential 'contamination'. The discussion of the incident between Senior Sergeant Hurley and Sergeant Leafe was also in breach of the OPM which provides as follows in relation to 'police-related incidents':

    Members directly involved in the incident or who are witnesses to the incident should not discuss the incident amongst themselves prior to being interviewed.175

  32. Neither Senior Sergeant Hurley nor Sergeant Leafe were aware of this direction.176 In his evidence, Hurley regarded it as 'highly counter to human nature'.177 They did not receive any specific direction from Detective Inspector Webber, Detective Senior Sergeant Kitching or anyone else involved in the investigation that they should not discuss the incident.178

  33. Detective Inspector Webber and Inspector Williams accepted that it was undesirable for witnesses to talk to each other about the matter in these circumstances.179 However, Webber was of the view that a direction to that effect was unnecessary180 and that the direction contained in the OPM was 'obvious in any investigation', particularly for 'experienced officers'.181

  34. Inspector Williams was not concerned by the fact that Hurley may have reviewed the video footage before speaking to investigators. Indeed, Williams suggested that a witness reviewing other parts of evidence while a matter is being investigated may 'only make their evidence better or more accurate'.182 The prospect that a witness may, consciously or unconsciously, tailor the version of events they provided to investigators to reflect other evidence was apparently not of concern to Williams.

  35. The Commission submits that the OPM should be amended to require the officer in charge of an investigation of a death in custody to instruct officers involved in, or witness to, the death not to discuss the matter with other witnesses prior to being interviewed.

  36. The Commission further submits that consideration should be given to what training officers may require to be aware of their obligations under the OPM when involved in deaths in custody.

    (v) Concerns regarding the continuity of the investigation

  37. On 24 November 2004, the conduct of this investigation of this matter was taken over by Detective Inspector Bemi of the Crime and Misconduct Commission ('CMC').

  38. While a briefing in relation to the investigation prior to that point was provided to Detective Inspector Bemi by Detective Inspector Webber and Detective Senior Sergeant Kitching on 24 November 2004, Webber and Kitching had no further involvement in the investigation after this time.183

  39. Inspector Williams continued to play a role in the investigation until 27 November 2004 when he was informed by the CMC that his involvement was no longer required.184

  40. Both Detective Inspector Webber and Inspector Williams expressed the view that the transfer of the investigation to the CMC prevented them from evaluating the evidence gathered in the initial investigation with a view to conducting further investigations and remedying any oversights.185

  41. The Commission submits that it is undesirable for the continuity of an investigation to be disrupted by changes in the investigation personnel. It is preferable that the CMC should be actively involved in all investigations into deaths in custody from the outset. Consideration should be given to having a senior officer of the CMC involved in all investigations into deaths in custody.

    (vi) Questioning of Aboriginal witnesses in the investigation

  42. The Commission submits that throughout the course of this inquest, the long-recognised difficulties that may be experienced in communication between Aboriginal and non-Aboriginal people have been manifest.186 Communication between the Court, legal representatives and witnesses was, at times, quite unclear. For this reason, interpreters and witness assistants were made available to a number of the Aboriginal witnesses who gave evidence to the inquest.

  43. However, no interpreters or witness assistants were used by police in speaking to any of the witnesses in the course of the investigation of the death of Mulrunji.187

  44. Inspector Williams gave evidence as to his difficulties in understanding Police Liaison Officer Bengaroo.189 He stated in evidence that he did not, however, seek any assistance in relation to communicating with Bengaroo: he 'never thought of it'.

  45. Detective Sergeant Robinson gave evidence that he had received no training in relation to overcoming communication difficulties with Indigenous witnesses.190 The Commission submits that his interview of Barbara Pilot dated 6 July 2004191 demonstrates a fundamental lack of understanding of the difficulties that Aboriginal witnesses may face in providing evidence to police. The transcript of that interview speaks for itself in this regard. In cross-examination on this issue, his evidence also demonstrated a lack of awareness of the manner in which such difficulties may be overcome.192

  46. It is difficult to assess the impact of these issues upon the investigation of the death of Mulrunji. However, the Commission submits that the Coroner is entitled to form the view, based on her observations of the witnesses before the inquest, that difficulties in cross-cultural communication may have impaired the effectiveness of the investigation by police.

  47. The Commission submits that the training of police in relation to these issues requires significant attention - particularly for those officers who are working in or near large Indigenous communities such as Palm Island. The Commission submits that the Coroner should recommend that urgent attention be given to improved training of officers 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.

  48. The OPM presently provides that: 'The Service will provide education and training to all members as a part of an overall strategy to improve service to all cultural and ethnic groups'.193 The OPM itself, however, provides only limited guidance to officers in dealing with cross-cultural communication issues in dealing with Aboriginal people: see OPM 6.3.6.

  49. The Commission notes that the Supreme Court of Queensland Equal Treatment Benchbook has a chapter on 'Indigenous Language and Communication' which provides useful guidance as to the nature of cross-cultural communication difficulties between Aboriginal and non-Aboriginal people as well as practical guidance on how these might be avoided and useful contacts for assistance in dealing with such issues.194 The Commission submits that similar guidance should be provided as a part of the OPM. This may be achieved by including the relevant chapter of the Equal Treatment Benchbook as an appendix to the OPM, with a relevant direction that officers are required to follow and apply its contents to the greatest extent possible.

    (vii) Comments of the Coroner: Investigation of Mulrunji's Death

  50. The Commission submits that the Coroner should make the following comments in relation to the investigation of Mulrunji's death:
C27 The involvement in the investigation of Mulrunji's death of officers from Townsville and Palm Island was inappropriate and undermined the investigation's appearance of impartiality.
C28 In all deaths in custody, officers investigating the death should be chosen from a region other than that in which the death occurred. The OPM should be amended to require this.
C29 The OPM should be amended to require the appointment of the officer in charge of an investigation into a death in custody by the Chief Commissioner, a Deputy Commissioner or Assistant Commissioner.195
C30

The OPM should be amended to make explicit the need to consider, when selecting officers for involvement in an investigation of a death in custody, the impartiality and the appearance of impartiality in the conduct of the investigation.

C31 The involvement in the investigation of Mulrunji's death of officers who knew Senior Sergeant Hurley personally, or were friends with him, was inappropriate and undermined the investigation's appearance of impartiality.
C32 The OPM should be amended to explicitly require officers involved in an investigation into a death in custody to disclose any relationship with an officer involved in, or a witness to, that death.
C33 The investigation's appearance of impartiality was further undermined by the conduct of the investigating officers and Senior Sergeant Hurley:
  • It was inappropriate for Hurley to meet the investigating officers at the airport upon their arrival.
  • It was inappropriate for Hurley to drive the investigators to the scene of Mulrunji's arrest.
  • It was completely unacceptable for investigators to eat dinner at Hurley's house while the investigation was being conducted.
C34 The OPM should be amended to more clearly state the need for officers involved in an investigation to consider the impartiality and the appearance of impartiality in the conduct of the investigation at all times.
C35 The discussion by Senior Sergeant Hurley of the death of Mulrunji with Sergeant Leafe and Police Liaison Officer Bengaroo prior to being interviewed was inappropriate and contrary to the OPM. It had the potential to undermine the integrity of the investigation and undermined the appearance of integrity of the investigation.
C36 The Commission submits that the OPM should be amended to require the officer in charge of an investigation of a death in custody to instruct officers involved in, or witness to, the death not to discuss the matter with other witnesses prior to being interviewed.
C37

Consideration should be given by the Police Commissioner as to the training that officers should receive to ensure they are aware of their obligations under the OPM if involved in deaths in custody.

C38 It is preferable that the CMC be actively involved in all investigations into deaths in custody from the outset. Consideration should be given to having a senior officer of the CMC involved in all investigations into deaths in custody.
C39 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.
C40 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.

Jonathon Hunyor
Solicitor for the Human Rights and Equal Opportunity Commission
30 June 2006


Footnotes

[1] Commission submission 18 March 2005, 7 [26].
[2] See Commission submissions of 18 March 2005, 7 [26]. Those submissions note that
is it a well-established principle of the common law that statutes are to be
interpreted and applied, as far as their language permits, so as to be in
conformity with the established rules of international law and in a manner which
accords with Australia’s treaty obligations.
[3] Keown v Khan [1998] VISC 83, 10
(Callaway J).
[4] Hurley T1195.1.
[5] OPM 16.5 concerns arrest without a warrant, but provides no guidance on the
exercise of the discretion to
arrest.
[6] The OPM does, however, make reference to the provisions of the PPR Act relating
to discontinuation of arrest: see 16.6.
[7] Hurley T592.30; T1218.19.
[8] Hurley T594.40.
[9] Hurley T1251.
[10] Hurley
T1218.10.
[11] Hurley T1219.5.
[12] See Hurley T1263.10-30.
[13] See, for example: Kidner T317.35-50, 106.40; Coolburra T341.55; Nugent T94.20,
367.45; Clay T377.10. Edna Coolburra also gave this description of
Mulrunji’s demeanour: ‘He was drunk, but he was in a happy sort of
way, you know, not walking around the road, swearing and cursing or singing
out’: T91.10.
[14] (2004) 220 CLR 1, 99 (Kirby
J).
[15] (2004) 220 CLR 1, 79 (Gummow and Hayne JJ).
[16] See Hurley
T1263-1267.25.
[17] Hurley T1266.35.
[18] Hurley
T594.40.
[19] Hurley T1264.40.
[20] Hurley
T595.47.
[21] Hurley T1264.25.
[22] Hurley
T593.1.
[23] Bengaroo T574.53-575.11; Hurley T1264.25-35.
[24] Hurley T1263.55-1264.10; Hurley
T1266.55.
[25] Hurley T1264.10-20.
[26] Hurley T1264.35.
[27] Hurley
T597.45-51.
[28] Hurley T596.1.
[29] Hurley T1263.30-45.
[30] Mulrunji had a stable permanent residence known to Police Liaison Officer
Bengaroo (Bengaroo T574.55) and his de facto wife, Ms Twaddle, gave evidence
that she would have been comfortable with Mulrunji being brought home to
‘sleep it off’: T308.40-50.
[31] Hurley
T1267.5.
[32] Hurley
T1263.10-18.
[33] Hurley T1267.10
[34] Hurley T1265.25.
[35] The term ‘Aboriginal’ is often used in the RCIADIC report to refer
to both Aboriginal and Torres Strait Islander people. It is noted that the
deceased, Mulrunji, was an Aboriginal man and this term is therefore used when
making general observations about issues affecting Aboriginal and Torres Strait
Islander people.
[36] RCIADIC National Report, v 3 p 6 [1.3.3].
[37] RCIADIC National Report, v 3 p 3.
[38] Ibid p 13 [1.6.1]-[1.6.3].
[39] Hurley T1267.40-1268.40.
[40] RCIADIC, Regional Report of Inquiry in New South Wales, Victoria and Tasmania,
144-5.
[41] Chris Cunneen, Conflict, Politics and
Crime (2001), 152.
[42] Ibid 152.
[43] Ibid 154.
[44] Opened for signature 16 December 1966, 999 UNTS 171 (generally entered into
force 23 March 1976, article 4 entered into force 28 March
1978).
[45] Van Alphen v The Netherlands, Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988 [5.8]; A v Australia Communication No
560/1993, UN Doc CCPR/C/59/D/560/1993, [9.2].
[46] Communication No 900/1999, UN Doc
CCPR/C/76/D/900/1999.
[47] Ibid [8.2].
[48] [2002] NSWSC 194, [35]. See also Deamar v Corporate
Affairs Commission (Unreported, NSWCCA, 4
September 1990); Lake
v Dobson (Unreported, NSWCA, 19 December
1980); Dumbell v
Roberts (1944) 1 All ER 326 at
332.
[49] (1982) 60 FLR 124, 126.
[50] Northern Territory Police Custody Manual and General Orders, General Order A7,
[2.2].
[51] Ibid [2.3].
[52] Ibid [20.1].
[53] Cape York Justice Study (2001), v 2 p 147, available at:
http://www.communities.qld.gov.au/community/publications/capeyork.html.
[54] Ibid
144.
[55] Ibid 152.
[56] Liquor Act 1992 s 164(2). The
Commission notes that this is contrary to recommendation 79 of RCIADIC.
[57] RCIADIC National Report v 3 p 25
[21.1.71].
[58] Hurley T597.50.
[59] RCIADIC National Report v 3 p 15 [21.1.40].
[60] RCIADIC National Report v3 p28.
[61] Hurley T595.25. Senior Sergeant Hurley’s answer goes on to suggest that
arrest was considered necessary to prevent the offence reoccurring, an
explanation that has been addressed in these submissions
above.
[62] See above, [34].
[63] Hurley T1268.40.
[64] Steadman
T672.40-673.20.
[65] Hurley T1196.10-20.
[66] Fuller
T1015.30-45.
[67] Fuller T1015.45.
[68] Fuller T1024.10-25.
[69] See Leafe T701.30-55.
[70] Hurley T1247.20-45.
[71] Strohfedlt
T1097.53
[72] Strohfeldt
1099.20.
[73] Ibid.
[74] Kyle
T982.55.
[75] Strohfeldt
T1099.35.
[76] Strohfeldt T1099.55.
[77] Chris Cunneen, ‘Review of Best Practice Models for Indigenous Diversion
Programs’, Report to the Corrective Services Commission, Victoria (2001),
25, cited in the Cape York Justice Study, above n 53, 114.
[78] RCIADIC National Report, v 4 p 80
[29.1.1].
[79] Ibid 83 [29.2.1].
[80] RCIADIC National Report, v 4 p 85.
[81] Cape York Justice Study, above n 53, v 2 p
114.
[82] Ibid 117-8. The Commission notes that an Indigenous Community/Police
Consultative Group was formed in March 2005 on Palm Island ‘which aims to:
develop a partnership between the police and the community; operate as a forum
for discussing policing matters of concern to the community; facilitate
resulting decisions; and, where necessary, act upon such decisions in an
informed and cooperative manner’: Palm Island Select Committee Report
(August 2005), available at:
http://www.parliament.qld.gov.au/view/committees/documents/PISC/reports…,
p 91. Such a group has a role to play as a forum for promoting appropriate
policing on Palm Island but does not take the place of an active Community
Justice Group.
[83] See, for example, Strohfeldt T1101.1.
[84] Hurley T588.45.
[85] RCIADIC National Report, v 3 p 28.
[86] RCIADIC National Report, v 3 p 16 [21.1.43].
[87] RCIADIC National Report, v 3 p 17 [21.1.44].
[88] RCIADIC National Report, v 3 p 17 [21.1.27].
[89] Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976).
[90] Hurley
T1268.40.
[91] Strohfeldt T1112.15-35.
[92] McDonnell-Phillips, ‘Diversion from Custody Program Review’
(2001).The Commission understands that this document was provided to the Coroner
by DATSIP. A copy was provided to the Commission by email on 22 February 2005 by
the Office of the State Coroner.
[93] Ibid 28. The Commission does not suggest that diversionary centres are a panacea
and the McDonnell-Phillips notes some of the difficulties in their operation.
The report confirms, however, their positive role as a means of dealing with
intoxicated persons who come in contact with the police.
[94] Parliament of Victoria Drugs and Crime Prevention Committee, ‘Inquiry into
Public Drunkenness: Final Report’ (2001).
[95] Ibid 224.
[96] See recommendations 10-25 with regard to sobering-up centres: ibid
xv.
[97] Ibid 291.
[98] See RCIADIC National Report, v 3 pp 16-17 [21.1.43]-[21.1.47].
[99] Ibid v 3 p 18 [21.1.48].
[100] Palm Island Select Committee Report (August 2005), above n 82, recommendation
55.
[101] Queensland Government Response (November 2005), p 35, available
at:
http://www.parliament.qld.gov.au/view/committees/documents/PISC/respons….
[102] Commonwealth Attorney-General’s Department Crime Prevention Branch,
‘An Overview of Night Patrol Services in Australia’ (2003),
79.
[103] Ibid 27.
[104] Ibid 7.
[105] Ibid.
[106] Ibid.
[107] See the Victorian DCPC Report, above n 94, 223, 237.
[108] Hurley T1268.50-1269.5.
[109] Above n 102, 80.
[110] Ibid.
[111] While ‘connected with’ Mulrunji’s death, the Commission does
not suggest that these failures contributed to his death. The evidence
suggests that even immediate emergency surgery may not have prevented
Mulrunji’s death given the severity of the injury he had received: see,
for example, Exhibit B10, Expert Report of Associate Professor David Wells, 6.
The importance, however, of recognising these failures lies in the prevention of
future deaths. In similar, but not identical, circumstances, the failure to
properly assess and check health may have been critical.
[112] OPM 16.1.1. See also 16.4.2 ‘Guarding of persons in custody’.
[113] OPM 16.1.
[114] OPM 16.13.
[115] Ibid.
[116] Hurley
T1269.10.
[117] Hurley
T1269.15.
[118] See the evidence of Dr Stephen Lynch T646.5-20.
[119] Hurley
T612.13.
[120] Hurley T612.14.
[121] Hurley
T1269.30-40.
[122] Hurley
T1269.55.
[123] Hurley
T1269.41.
[124] Hurley T1269.45.
[125] See, for example, 16.13.3 extracted at para [126] above.
[126] See Exhibit I 1, Watchhouse Surveillance Tape dated 19.11.04 at approximately
10:30:35. See also Hurley
T1275.1-12.
[127] Hurley T1273.20.
[128] See Hurley T1269.20, 1270.45. The Watchhouse Custody Register is Exhibit
F1.
[129] Exhibit F1; Hurley T1270.48.
[130] Hurley T1271.10-50.
[131] Leafe T710.1-35.
[132] OPM 16.9.1, extracted above para [123], emphasis added.
[133] OPM 18.9.4, extracted above para [124].
[134] OPM 16.13.1, extracted above para [125].
[135] Ibid.
[136] RCIADIC National Report, v 3 p 196 [24.3.5].
[137] Communication No 763/1999, UN Doc CCPR/C/74/D/763/1997 (2002).
[138] Ibid [9.2].
[139] United Nations Human Rights Committee, General
Comment 21, [3]-[5].
[140] This is not to be understood as suggesting that the failure caused Mulrunji’s death: see n 111 above.
[141] Exhibit
B10.
[142] Ibid 6.
[143] Ibid.
[144] Ibid.
[145] See OPM 16.13.3, extracted at para [126]
above.
[146] Hurley T1271.38.
[147] Hurley T615.20. Hurley was also unaware that the system recorded sound as well
as vision: T615.10.
[148] Hurley T621.25.
[149] Hurley
T1276.1.
[150] Hurley T1276.40.
[151] Hurley
T1240.40.
[152] In the case of the detention of Albert Murray, he was unattended in the
watchhouse while police had a cup of tea with nurses at the hospital: see Hurley
T1240.50-1241.5.
[153] The requirement of an ‘effective remedy’ is provided for in Article
2(3) of the ICCPR: see Commission submissions of 17 August 2005, [14]-[15].
[154] RCIADIC National Report, v 3 p 120 [4.2.22].
[155] State Coroners Guidelines, 7.5.
[156] Ibid 7.3.
[157] OPM 1.17.
[158] OPM 16.24.3.
[159] Strohfeldt
T1082.20.
[160] Strohfeldt T1087.5.
[161] Kitching
T768.42.
[162] Kitching
T769.1.
[163] Kitching 772.35.
[164] Kitching T774.10. Kitching’s evidence was that he did not even think of it
(T774.23) and also that he did not think that it was relevant (T774.15).
Kitching also gave evidence that he did not perceive his relationship with
Hurley as causing a difficulty in conducting the investigation:
T768.55.
[165] Webber T727.5-15.
[166] Robinson
T84.25.
[167] The transcript of this interview is exhibit
D17.1.
[168] The transcript of this interview is exhibit
D8.3.
[169] See, for example, the interviews with Gladys Nugent, exhibit D30.3 and Edna
Coolburra, exhibit D10.2.
[170] See Webber T724.5-10.
[171] Williams T462.25.
[172] Robinson T788.40.
[173] Leafe T689.20; Hurley T1278.
[174] Hurley T1278.20.
[175] OPM 1.17.
[176] Leafe T707.30; Hurley
T1278.40-60.
[177] Hurley
1278.45.
[178] Webber T730.30-731.10; Williams 484.5-10, 484.50-60.
[179] Williams T464.25, 483.35-45; Webber T730.32.
[180] Webber
T731.10.
[181] Webber T745.50-746.15. Williams also did not tell Hurley that he should not have
been having conversations with other witnesses during the investigation:
Williams T484.10.
[182] Williams T484.25-45.
[183] Webber T 726.40-50.
[184] See statement of Williams, exhibit C18.1, [26].
[185] Webber T746.40-50, T753.10; Williams T468.40-50, T475.50-476.
[186] See the Commission’s submissions of 18 March 2005, [46]-[52].
[187] The Commission notes the involvement of Ms Florence, Indigenous Liaison Officer
with the CMC, in the investigation after 24 November 2004. It does not appear
that it was the role of Ms Florence to act as interpreter or witness assistant,
nor does she appear to have played that role.
[188] Williams
T454.20.
[189] Williams T479.1-15.
[190] Robinson
T1326.10.
[191] Exhibit
R29.
[192] See Robinson T1326-9.
[193] OPM 6.4.1.
[194] This publication is available online at:
http://www.courts.qld.gov.au/practice/etbb/default.htm. See Chapter 9:
Indigenous Language and Communication.
[195] Or equivalent rank in the event that this terminology does not reflect that
presently used by Queensland Police.

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 23 August, 2006.