Aboriginal Law Bulletin
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by Christine McIlvanie
On June 12, 1981 Edward Murray, a 21 year old Aboriginal man, was found hanged in a Wee Waa police station cell. A five inch wide strip, tom from his cell blanket, had been deftly folded and threaded through the bars of the ventilation window above his cell door. The blanket had been knotted twice: once in order to secure it to the bars, and again to fashion the noose around his neck. His knees were bent, his feet were on the floor.
Barely over an hour before his body was discovered, Murray had been detained as an intoxicated person. He had been searched and placed in the cells to `sleep it off. Under the provisions of the NSW Intoxicated Persons Act (1979) he could be detained for a period of up to eight hours and then released without charge. In contravention of those provisions he was detained in a police cell under lock and key.
This was the seventeenth occasion on which he had been either arrested or detained. All of his charges were connected with drunkenness, street fighting or abusive language and he was known to Wee Waa police as a `multiple offender'.
There is no doubt that on this particular occasion Eddie Murray was extremely drunk. The full extent of his intoxication was established by a post-mortem conducted the following morning. Murray had a blood alcohol level of 0.3g/100ml, or 0.3% - six times greater than the level at which the law permits drinkers to drive.
In evidence to a coronial inquiry which began in the Narrabri Court of Petty Sessions on 9 November 1981 before L.R. McDermid SM, Professor D.I. McCloskey of the Physiology Department at the University of New South Wales submitted that Murray's blood alcohol level was such that:
simple motor acts such as fastening buttons, threading a belt, or locating a key on a ring and using it in a lock would be grossly impaired or impossible.[1]
He added:
it is unlikely that an individual with a blood alcohol level of 0.3g/100ml could tear a strip from a blanket and/or devise and fashion a noose with a running or slip knot and attach same to a bar.[2]
Regarding Murray's ability to perform the functions necessary to contrive the conch tions by which to hang himself, opinions were conflicting. Other medical and forensic experts were of the view that while a blood alcohol level of 0.3g/100ml would render a `normal' person comatose, it was possible that someone with established hard-drinking habits would, over time, develop an increased level of tolerance.[3] Murray had drunk to excess, but he was 21 years old - hardly of age to have established the increased tolerance level indicated by one particular pharmacologist.
On 18 December 1981 the Inquest Touching The Death of Edward James Murray ended in the City Coroner's Court. Mr McDermid concluded that:
... I can find no evidence on which I could be satisfied that the deceased committed suicide. It is the opinion of the police officers that the deceased took his own life. I am satisfied that the deceased was detained in police cells ... if he did it himself or if some other person did so ... that other person would have to have been a police officer ... There has been no evidence put before me as to a motive for one or all of the police called to enter into collusion with civilian witnesses to depose to such a monstrous lie ... On the evidence before me I feel that I must bring in an open verdict ... [4]
And so an "official seal" was placed on the life - and death - of Edward James Murray. For 21 years he had known what it was to be an Aborigine in a country town. For ten of those years he had lived in a tent on an Aboriginal reserve devoid of the most basic of human requirements. He was a "problem student", as happy to leave school as was the school to see him go. Although he possessed trade qualifications he had never had regular employment. It was said that he drank too much, used abusive language, fought with others and that he fought with himself. Eddie Murray had been reduced and rendered dependent long before a five inch wide strip of cell blanket went around his neck. We do not know who killed Eddie Murray. The coroner does not know who killed him.
What killed Eddie Murray is perhaps an easier question to answer - bearing in mind that "who" involves, in this instance, only two possibilities. "What" embraces a great many factors and variables. Murray's case must be seen as one of doubtless many of this kind, namely, that the "system" was responsible. His death is not simply another curious Aboriginal "horror story". What killed him was an elaborate equation, one with factors which have no place in a modern democratic society that either boasts of, or pledges itself to, a scale of human rights enshrined in liberal democratic theory.
The coronial inquest into the death of Murray failed to establish the manner and cause of his death. It failed not because the two barristers - instructed by ALS solicitors - were either personally deficient or professionally negligent. It failed because of the inadequacies inherent in a criminal justice system; one which does not represent the expression of society's common interests and needs.
When the inquest convened it required the services of a magistrate and coroner, a police prosecutes, legal counsel representing the family of the deceased, police and civilian witnesses, and expert medical and scientific opinion. Some would argue that such apparatus is indicative of an efficient, fair, unbiased legal system: that Murray's hearing was a triumph of an open, honest, democratically based criminal justice system. While it is true to say that a grossly deficient system would have literally buried Murray without care or caution, it is equally true that by virtue of its composition the same legal apparatus reinforces the remote, hierarchical bureaucratic nature of the law as it affects the powerless.
Four main facets of this are both readily identifiable. They are: the suitability of an inquest as a means of establishing the conduct of various actors; the position of the police prosecutor (and person assisting the coroner) in assembling the evidence for presentation at the inquest; the role of the magistrate in determining the outcome of such an inquiry; and the nature and function of those most closely associated with inquisitorial proceedings - the police as an occupational group.
Inquest procedure is the primary device for testing conduct and establishing the manner and cause of death. But its numerous defects can be - as indeed they have been - abundantly illustrated. In 1970, criminologist R.W. Harding saw the major defect as the "the police themselves gather and sift the information that eventually goes into the Inquest Brief'. This procedure, "provides an opportunity for information to be censored or re-arranged at source, before even the Coroner or the person assisting the Coroner gets to it". Applied to Murray's death, Harding's criticism finds a secure base.
Records of telexes, telephone calls and correspondence reveal that the police assembled - and sifted - opinion on whether a person could, in fact, hang while their feet were still on the ground. They also sought proof that an individual with a blood alcohol level of 0.3% would be capable of performing other than basic motor functions. The coroner was even presented with an injudiciously prepared and sloppily produced document which indicated that Aborigines in custody had a propensity to commit suicide. We may never know whether the positive responses gathered by police and presented to the Coroner were the only ones received. As Harding says, "when the Inquest Brief has been prepared, not all that appears in it necessarily comes out at the Inquest. The Coroner himself, or more realistically, the person assisting him, decides what part of it shall be publicly revealed, and counsel for the relatives is steadfastly denied access to the rest of the brief". Perhaps an open trial in the matter, in the true sense of an adversary proceeding, can produce a better balance of fact and opinion.
In most cases, the "person assisting the coroner" is a policeman. One might reflect for a moment on the logic and the need for impartiality in appointing a police prosecutor, for there is strong evidence to suggest that the "brotherhood syndrome" among police is not confined to one town, region or state. It is not, therefore, unfair to suggest that the findings of Mr Barry Beach QC, during his investigations into allegations of misconduct by members of the Victoria Police Department, have relevance and applicability here. Beach recorded adverse findings against 55 officers. By the time police prosecutors had done their job, not one police officer had been convicted. It matters not that these 55 officers are considered "rotten apples", to use the common apologetic parlance of departmental officials. It matters much that the person assisting the Coroner belongs to the same occupational group. The entire system of police investigating police, of police assisting police, and police disciplining themselves - to the exclusion of the world - is under severe attack.
The inquiry into Murray's death was not heard before a travelling circuit magistrate. This fact alone should have assured counsel representing the Murray family of at least a modicum of impartiality. A circuit magistrate is, after all, part of the very society upon whom he dispenses the criminal justice system. He is usually resident in one of the larger towns covered by his area and he is, by virtue of his position, in constant contact with the police in that area. Given the dominant social ideology in towns throughout the north-west of NSW it would be most unlikely that he would escape the pressures applied to other professional white residents by the permanent white populations. The implied threat of social ostracism was seen, by Anti-Discrimination Board researchers in 1982,[5] to influence the decisions made in court. Harding has launched a vitriolic attack on the suitability of coroners as a group to hear inquests which involve, in particular, the suggestion of police misconduct:
The failure of many Coroners to perceive their proper role [is] their spinelessness ... this is probably because their normal daily work brings them into such close contact with the police that they are bound to share, more readily than they should, many police standards and to resolve doubts in favour of the police. Except with the most unusual Coroner, the mentally tough spirit of inquiry which should be a primary quality for his job inevitably must soften when he is investigating a killing by a policeman.[6]
It is true that Mr L.R. McDermid SM and Coroner, who travelled to Narrabri Court of Petty Sessions from the City Coroner's Court at Glebe was not commissioned to investigate a killing by a police officer. But as the inquiry progressed he was faced with a barrage of conflicting scientific medical opinion. He was forced to discredit the self-contradictory perjured testimony of one particular police officer. Yet his verdict was an "open" one. That was by dint of his ability to withstand societal pressures and to escape in part the relationship and ethos inherent in his position. This hearing and open finding cannot be considered a plus for the legal system. Nevertheless, Mr McDermid was, as Harding described, a most "unusual" coroner.
Because Murray died in "protective" custody and because he may well not be the last to do so, there appears a need to address the effects which stem from the organizational structure and social role of the police force itself. In doing so we find an occupational group which has been invested with the institutionalized use of society's discretionary powers - eminently capable of effecting what the political philosopher Rousseau has termed the transformation of "strength" into "right" and "obedience" into "duty".[7]
There are many operative factors which consistently impinge upon the working lives and social relationships of policemen in country towns. The appointment of police to "Aboriginal" towns further complicates the occupational status and reinforces the group tendency. In country towns police officers do not form part of the local core status system and a consequence of their status marginality is that they turn inwards for emotional social support. Throughout the inquiry into Murray's death the police exemplified this group support. Tacit obstructionism went further than the boundaries of local police officers as district and regional officers reinforced the notion that police see themselves as the "official pariahs" of small, insular and parochial country communities.
A level of frustration accompanies the position of a police officer in a town with a significantly high Aboriginal population. There are repeated confrontations with the "too-smart" characters, the drunk and disorderly, the multiple offenders who, it appears, have little or no respect for the law or its enforcement officers. Eddie Murray was but one stark example of the "provocation" given to country policemen.
Inevitably, if one of their members assaults a prisoner, the greater majority of police can well imagine how they themselves might have been tempted to have done the same ... Why, therefore, should one of their members be offered as a scapegoat to the rest of society ...[8]
The inquiry into Murray's death raised many, if not more issues than were resolved. The contested facts remain: could a man who weighed only eight stone and stood five feet four inches tall, with a blood alcohol level of 0.3% tear a strip of cell blanket, fashion it into a noose, thread it between the bars above his cell door (at a height of six feet six inches) and hang himself within the space of fifty minutes? The Murray family remain committed to agitating for a police inquiry into Eddie's death. But, irrespective of the fact that the subject of a departmental inquiry was one of the first items on the agenda when Police Minister Peter Anderson assumed his new portfolio in February 1982, sources in the NSW Premier's Department say it has been permanently - one might add conveniently - "shelved".
Even if it is determined to conduct a police inquiry, what likelihood is there that it will reach an unbiased conclusion? A criminal trial decides whether the standards of society have been transgressed. A policeman who faces only a departmental inquiry - implemented and conducted by his peers who share the same idiosyncratic group values - is not judged in the same way as other members of society "who seem prima facie to have transgressed [society's] standards.[9]
In a perverse way the coronial inquiry into the death of Eddie Murray tells us much about the myth of "equality before law". Personal defeat is indeed revealed at the hands of institutionalized adversity.
[1] Coronial Inquiry Transcript (Depositions). (CIT(D))
[2] CIT(D)
[3] CIT(D)
[4] Coronial Inquiry Transcript (Coroners Summary) (CIT(S))
[5] Anti-Discrimination Board of NSW. Study of Street Offences by Aborigines, Sydney, 1982.
[6] Harding, note 7, p.221.
[7] Rousseau, J.J. cited in Huntington, S.P. Political Order and Changing Societies., USA, 1971, p.9.
[8] . Harding, note 7, p.227.
[9] Harding, note 7, p.237.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1983/17.html