Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Dr Roderic Pitty
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC)was announced on 11 August 1987, less than a week after the death of Lloyd Boney in the Brewarrina police lock-up. A cell inspection by three of Lloyd's relatives and friends found "no evidence that self-hanging was physically possible."[1] This view added force to the campaign for a thorough investigation of Aboriginal deaths in custody, which several families of Aboriginal victims had been running for years. After Lloyd's funeral on 15 August, a wake held by hundreds of Aboriginal people in the Memorial Park in Brewarrina was attacked by 8 NSW police in riot gear. Fighting occurred along a side street for 20 minutes, then the police retreated to an intersection, near a hotel that they had initially been instructed to protect. A few bottles had been thrown at the hotel by Aboriginal youths going home.
Protest marches by Aboriginal people during that week and earlier that day had not led to violence. An agreement was reached between Noel Gillon of WALS (the Western Aboriginal Legal Service) and Sergeant Dorn, a non-Aboriginal police liaison officer, that the police (especially local officers suspected of foul play against Lloyd Boney) would steer clear of the wake. Sergeant Dorn was on the first floor verandah of the hotel when the riot police arrived. There he saw non-Aboriginal people overlooking the park with rifles nearby. He told them to put the firearms away but did not ensure that this occurred. He did not attempt any liaison before calling the local police to the hotel. After Aboriginal people were beaten by police in and around the park, several of them returned to the intersection with iron bars. Some police were assaulted and seriously injured.
An ABC news crew attended the scene during all but a few minutes of this disturbance, when the crew went around a block to get a better view. The film they recorded does not show police beating Aboriginal people in the park, since the lack of lighting there made filming pointless. Police are recorded yelling at the mourning Aboriginal people to 'Move!' and 'Get Out of the Park Now!', even though Aboriginal people had obtained council permission to use the park for the wake. The film shows Aboriginal people at the intersection aware of the rifles on the hotel verandah, and throwing bottles at police after the fighting in the park. The film also shows Arthur Murray, an Aboriginal elder who lost a son in Wee Waa police custody in 1981 and campaigned for the RCIADIC, trying to stop the confrontation with police from getting further out of control.
There is no film of the assaults on police, which most probably occurred when the TV crew were running round the block. The frames showing the police and Aboriginal people at the intersection before the assaults have been replayed on ABC TV several times, including once in April 1991 toward the end of a trial in Bathurst. At this trial Arthur Murray and Sonny Bates (Lloyd Boney's brother in law) were convicted of riotous assembly and assaulting police. Another man not shown on the film was acquitted, though he featured in police evidence.
Murray and Bates spent about 2 months in gaol before being released on bail pending their appeals, which were upheld by the Supreme Court in April 1992. A 6 months gaol sentence for Lloyd's brother Glen, who was filmed damaging the hotel after the police had departed and pleaded guilty to unlawful assembly, was quashed by the Supreme Court in July 1991. When the case against Arthur Murray was finally stopped by a permanent stay of proceedings in May 1994, Glen Boney was back in gaol after another avoidable disturbance in Brewarrina.
The confrontation between police and Aboriginal people on the night of 15 August 1987 is often called the'Brewarrina riot'. It lasted for about half an hour, not five hours as stated in the Encyclopaedia of Aboriginal Australia.[2] Subsequent legal proceedings against Aboriginal activists lasted for well over five years, longer than the RCIADIC took to investigate and report on 99 deaths throughout Australia. On 8 May 1991, the day before the release of the RCIADIC's National Report, three of the Brewarrina riot defendants who had close relatives die in custody (Arthur Murray, Sonny Bates and Glen Boney) were improperly gaoled. Their families were left to cope with the disruption of wrongful imprisonment, instead of being able to talk about and respond to the findings of the RCIADIC.
The evidence upon which Arthur Murray and Sonny Bates were prosecuted and convicted is riddled with doubt. Five police who claimed to identify Murray as the man who broke a policeman's leg gave no description of the attacker beyond saying he had light-coloured clothing. Others as well as Murray are shown on the film in light clothing. The hotel owner clearly described another man known to him striking a policeman where the main assault occurred. A journalist saw Murray too far away from this incident to be the attacker. The police witness of another assault allegedly committed by Murray said that attacker had grey hair, and acknowledged from a photo of the scene that Murray had black hair.
The police officer who claimed to have seen Bates throw a bar which injured him was one of the two local police on duty when Lloyd Boney died. The RCIADIC found that both these police had lied on oath about whether they sought bail for Lloyd when he was arrested before his death[3] The only other police witness to this alleged assault by Bates was the most senior police officer at the disturbance. He was responsible for the police charging into the park and assaulting Aboriginal mourners. At the trial, he recalled that the confrontation between police and Aboriginal people at the intersection was quite confusing. He also acknowledged that, in a six page statement he made three days after the disturbance, he did not mention seeing Bates throw any bar.
The jury which convicted Murray and Bates in 1991 was all white. It was clear that police had been seriously assaulted, but not clear beyond reasonable doubt who the attackers were. The jury apparently presumed that Murray and Bates, the two most prominent Aboriginal people on the film, were responsible for the assaults on police, because the police said so and there was no one else to blame. There is a danger in a case such as this that non-Aboriginal jurors may assume that some Aboriginal people must be convicted and punished for the assaults on police, even if those who were charged were not individually guilty. The mandatory presence of at least two Aboriginal jurors, as suggested at a forum in Sydney in 1993, would provide some guarantee against this risk of verdict by association.[4]
The right of Aboriginal defendants to a fair trial is also restricted by improper investigations conducted by police. The Brewarrina disturbance was investigated by the Inspector who was investigating the death of Lloyd Boney. He made no attempt to restrict consultation between the police before they were interviewed, and “showed a complete lack of sensitivity to and ability to communicate effectively with Aboriginal people.”[5] Police involved in the disturbance viewed the film of it together, before making their individual statements about what they saw on the night. At the trial, one police officer stated that the purpose of this was "to collaborate all of the evidence, just to put the whole story together".[6]
When ordering a permanent stay of proceedings against Arthur Murray in the District Court, Judge Shadbolt said it was difficult to envisage an identification procedure more open to criticism than that of Murray by police witnesses in this case. There was no identification parade. The only police witness who knew Murray was Sergeant Dorn. His evidence was inconsistent with that of the other police witnesses, and it was unclear how they had identified Murray. Purported descriptions of Murray in police statements contained no more detail than is observable from the film that the police viewed and discussed soon after the disturbance, once at a sergeant's home and once at the Bourke Police Station.
Use of photographic material to reconstruct evidence was strongly criticised by the High Court in Alexander (1981) CLR 395, at 417 per Stephen J. A related concern noted by Shadbolt J was the difficulty of uncovering errors in a police investigation several years after it had occurred. Police could recite their statements purporting to identify Murray, but there was no way of testing precisely what they recalled from the disturbance and isolating this from the later reconstructions.
The existence of a "high level of toleration of police untruthfulness within the police force" was a matter of concern raised by Hal Wootten in his Royal Commission Regional Report covering NSW.[7]
He specifically pointed to the inadequate nature of police investigations. The implications of such malpractice for Aboriginal defendants are substantial. In the Brewarrina riot case, families who had already suffered deaths in custody and undergone the experience of a Royal Commission investigation had to cope with further trauma and separation. No compensation has been offered yet to Murray or Bates for their improper incarceration. They have even been subject to a compensation claim from police for several thousands of dollars, awarded by the Victims' Compensation Tribunal based on the 1991 trial convictions after those convictions had been overturned.
The legal proceedings against Aboriginal defendants after the Brewarrina riot stand in stark contrast to the lack of prosecutions against any custodial officers who failed in their duty of care toward Aboriginal and other prisoners who died in custody. This lack of action against illegality by police or prison officers has persisted despite a strong suggestion by Commissioner Elliot Johnston in the RCIADIC's National Report (and noted by Amnesty International in their 1993 report on Australia[8]) about the need to carefully consider such action in particular cases. There is definite evidence on which to base prosecutions in some cases, but the will to prosecute shown toward Aboriginal defendants has been clearly lacking where charges against custodial officers are concerned.
The police who recklessly attacked the wake for an Aboriginal man who died in custody in suspicious circumstances were not charged or disciplined, but rather commended for their bravery. Yet the Brewarrina riot would most probably never have occurred had the local police just gone to the hotel as instructed and not tried to arrest Aboriginal people and disperse them from the park. Certainly, the serious injuries which police sustained were a consequence of the fighting which erupted in the park, not an inevitable result of bottles being thrown at the hotel toward the end of the wake.
The question of police responsibility for the Brewarrina riot is worth asking, particularly in view of criticism of Bourke.police less than a month before this disturbance, in connection with another riot that had occurred in August 1986. A report to the NSW Aboriginal Affairs Minister said the lack of understanding of Aboriginal life by many police contributed to "the state of hostility between Aborigines and police", and predicted this would "ensure regular breakdowns of public order". While some police were involved in preparing this report, which contained many recommendations for improved services, the recommendation to reduce the high rate of policing in Bourke was dismissed by Bourke Shire President Trev Randall as' just ridiculous'.[9]
The Report of the National Inquiry into Racist Violence noted that over-policing of Aboriginal communities concerns not only the numbers of police regularly present, but also the nature of police interventions.[10] The police -in Brewarrina on 15 August 1987 decided to break their agreement about keeping clear of the wake partly because they wrongly supposed that only a handful of Aboriginal people were in the park, not the 50 or more that they actually confronted. It is likely that the police would have made arrests that night if they faced much less opposition. Given the perception at the time that the only possible way Lloyd Boney could have died was at the hands of police, this action of using arrest as the first rather than the last resort was bound to provoke further trouble.
While police are notorious for arresting Aboriginal people for little or even no provocation, the decision to break up the wake for Lloyd Boney was not simply routine police behaviour. What is remarkable about the police conduct on that night is their complete lack of awareness of both the number and the feeling of Aboriginal people at the wake, despite a patrol by two officers near the park two hours before the disturbance began and surveillance during those two hours by two other liaison officers from the hotel verandah. There was also very little coordination between the patrol commander at the station, the liaison officers and the riot police about what they should do if faced with resistance, which in the circumstances should have seemed highly likely.
A rumour which circulated in the media immediately after the disturbance may contain a clue to this lack of awareness of the situation on the part of the police. Mark Olson, the local coroner initially investigating the death of Lloyd Boney, claimed that "the ABC stage-managed racial riots" by spending "over $1000" to "buy alcohol for Aboriginal leaders to get them worked up". This claim was strongly disputed by the ABC at the time. At the committal hearing a year later, the inspector running the case said no evidence had been found to support this allegation. Why did Mr Olson, a well known advocate for the use of riot gear, by police, make such a false claim, described in the Sydney press as 'bizarre'?[11]
There has never been a proper inquiry into the reasons for the Brewarrina riot. It may be too long since the disturbance to determine exactly what happened and why. Yet important questions of police accountability remain, concerning both the provocative conduct of police officers on the night and the incompetence of subsequent investigations. Similar disturbances have occurred in Wilcannia and other western NSW towns in recent years. There was also the street fighting that took place in Brisbane in the aftermath of Daniel Yock's death in police custody.
Underlying the Brewarrina riot and other disturbances are different perceptions that police and Aboriginal people have of respect for law and order. Without the full and urgent implementation of the RCIADIC recommendations, especially those such as Rec.87 and Rec.226 about arrest as a last resort and independent investigation of complaints against police, the potential for future trouble will remain. The risk of violence may even increase if Aboriginal over-imprisonment continues along with a lack of government response to the findings of the RCIADIC.
[1] Commissioner Hal Wootten, Report of Inquiry into the Death of Lloyd James Boney, ALPS, Canberra, 1991, p98. After the inquest police presented new evidence about the possibility of self-hanging which was subsequently accepted by the RCIADIC.
[2] The Encyclopoelia of Aboriginal Australia, Aboriginal Studies Press, Canberra, 1994, Vol.1, p140. The original source for the five-hour scenario was a brief statement released by NSW Police on the morning after the disturbance: The Australian, 17 August 1987.
[3] Report of Inquiry into the Death of Lloyd James Boney, p61.
[4] At the forum, organised by NSW young lawyers on 5 May 1993, calls for Aboriginal representation on juries trying Aboriginal defendants were made by Lloyd McDermott and from the floor.
[5] Report of Inquiry into the Death of Lloyd James Boney, pp115-125.
[6] Constable Anthony Bordin, evidence in Bathurst District Court on 4 April 1991, transcript, p214.
[7] Hal Wootten, Regional Report of Inquiry into Aboriginal Deaths in Custody in NSW, Victoria and Tasmania, ALPS, Canberra,1991, p296.
[8]National Report of Inquiry into Aboriginal Deaths in Custody, Vol.1, J,106; Amnesty International, Australia: A criminal justice system weighted against Aboriginal people, February 1993, p1.
[9] Sydney Morning Herald, 21 July 1987; The Western Herald (Bourke), 31 July 1987. For background and further analysis see Chris Cunneen and Tom Robb, Criminal Justice in North-West New South Wales, NSW Bureau of Crime Statistics and Research, Sydney, 1987, pp181-187.
[10] Chris Cunneen, "Policing and Aboriginal communities: is the concept of over-policing useful?" in Chris Cunneen (ed.), Aboriginal Perspectives on Criminal Justice, Institute of Criminology, Sydney, 1992,p82.
[11] . The Australian, 17 August 1987; Sydney Morning Herald, 17,18 August 1987, and 27 July 1988.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1994/51.html