Hart, Naomi --- "Separating the Inquest from the Trial: The Mulrunji Case" [2009] IndigLawB 5; (2009) 7(10) Indigenous Law Bulletin 23

Separating the Inquest from the Trial: The Mulrunji Case

By Naomi Hart.

In the 1991 National Report of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’), Elliott Johnson QC wrote,

A death in custody is a public matter. … Justice requires that both the individual interest of the deceased’s family and the general interest of the community be served by the conduct of thorough, competent and impartial investigations into all deaths in custody.^[1]

The death of Cameron Doomadgee (hereafter referred to as Mulrunji, in accordance with his family’s wishes) was certainly a highly ‘public matter’. Mulrunji died on the floor of a cell in the police watchhouse on Palm Island, 65 kilometres northwest of Townsville, on 19 November 2004. Multiple autopsies revealed that he had died as a result of severe abdominal haemorrhaging. His liver had been ruptured by a forceful pressure applied to his stomach area, which had ‘squeezed the liver by pushing it up against the front of his spine’, nearly splitting it in two.^[2] Video footage of the cell showed that Mulrunji, a ‘fit, healthy’ thirty-six year old Aboriginal man who ‘was not a trouble maker’ and had never been arrested on the Island, had cried out and ‘writh[ed] in pain as he lay dying on the cell floor’.^[3]

Mulrunji’s death attracted substantial media and legal attention. It sparked riots on the Island, resulting in the controversial conviction of one Palm Island resident, Lex Wotton, for rioting with destruction.^[4] It was the first death in custody to be investigated under the new Coroners Act 2003 (Qld) (‘the Coroners Act’), which had been designed to implement several RCIADIC recommendations.

The Coroner’s Findings

In September 2006, the Acting State Coroner of Queensland, Christine Clements, delivered a finding that the fatal injuries to Mulrunji were the result of three punches to the abdomen delivered by Senior Sergeant Chris Hurley. Hurley had earlier arrested Mulrunji on the street for a public nuisance offence as Mulrunji had been heavily intoxicated and had sworn at a police liaison officer.Ms Clements rejected an alternative proposition that the death was the result of an accident. It was generally accepted at the inquest that Hurley and Mulrunji had tripped on a stair as they entered the watchhouse together and had both fallen to the floor. Medical evidence suggested that, if Hurley had fallen on top of Mulrunji, pressure applied to Mulrunji’s abdomen by a small body part, such as a knee, could also have caused the injuries. However, Ms Clements discounted this version of events as Hurley had repeatedly stated in police investigations that he had fallen to Mulrunji’s side.

This was the first occasion, under the new legislation, where the actions of a police officer had been found to have caused a death in custody. Palm Island residents received Ms Clements’ findings with relief and elation. In contrast, the response by the Queensland Police Union (‘QPU’) was hostile. The then QPU President, Gary Wilkinson, accused the coroner of conducting a ‘witch-hunt’ and ‘deliberately overlook[ing]’ evidence that would support an alternative finding.^[5]

The District Court Decision

A recent and crucial development of this case, however, has attracted sparse public attention. Upon an application by Hurley’s legal team, the inquest was referred to the District Court in Townsville. Under s 50(d) of the Coroners Act, the District Court may set aside a finding if it ‘could not be reasonably supported by the evidence’. Just one week before Christmas, Pack J delivered a judgment setting aside Ms Clements’ findings, stating that ‘the hypothesis the fatal injury occurred as a result of the fall [as Mulrunji and Hurley had entered the police station together] cannot be excluded’. His Honour accordingly ordered that a fresh inquest be conducted.^[6] Surprisingly, in light of the case’s high public profile, the judgment was not included in court lists and was delivered in a near empty courtroom. Media outlets were alerted that the judge would hand down his decision just hours in advance. Palm Island residents received no notification before or after the judgment was delivered; they first became aware of it when reporters asked them for comments.^[7]

This article makes two arguments about Pack’s J’s decision. The first is that the judge applied an inappropriate test for overturning the coroner’s finding. The second is that the Coroners Act narrowed the scope of the coronial investigation between the initial inquest and the District Court review; this diminished the prominence of Ms Clements’ recommendations on how to prevent future deaths in similar circumstances. The review of the inquest produced outcomes akin to those that might result from a criminal trial, which is contrary to the intention of the Coroners Act.

Distinguishing Coronial Investigations and Criminal Proceedings

It is a well established common law principle that an inquest is a fact-finding exercise which is to be distinguished from a criminal trial, where the prosecution attempts to prove an individual’s guilt beyond reasonable doubt.^[8]

In framing the Coroners Act, the Queensland legislature codified the principle that an inquest is an inquiry and not a trial. Sections 45(5) and 46(3) prohibit a coroner from including any statement that a person may be criminally or civilly liable for the death. Section 48 states that a coroner who suspects that an offence has been committed should refer the matter to the appropriate prosecutorial authority. In the case of an indictable offence, the Director of Public Prosecutions will decide whether the individual has a case to answer and whether the matter will be heard in court.^[9]

One reason why the Coroners Act differentiates criminal from coronial proceedings is to allow coroners to draw on a wider base of evidence than may be available in a trial. Section 37 provides that the Coroner’s Court is not bound by normal rules of evidence, but ‘may inform itself in any way it considers appropriate’. Moreover, s 39 states that a coroner may order a witness to give evidence that would tend to incriminate the witness if the coroner is satisfied that it is in the public interest to do so.^[10] This explicitly removes the privilege against self-incrimination that is available to defendants in criminal trials. Relying on s 39, Ms Clements issued a direction to obtain Hurley’s evidence about the possible cause of Mulrunji’s fatal injuries on the grounds that ‘[t]he public interest in the death in custody of an indigenous man on Palm Island was sufficient to require his answers’. She emphasised, though, that his answers would not be admissible against him in any other proceedings except for the offence of perjury.^[11]

It is a feature of a healthy legal system that a matter arising from an inquest, when referred to a court for a criminal trial, may produce a different outcome to that of the inquest. In the present case, when Hurley appeared before the Supreme Court in Townsville charged with manslaughter and assault, he was acquitted by a jury.^[12] But despite the separate criminal proceedings, Pack J’s decision blurred the distinction between a coronial and criminal matter.

The Test for Setting Aside a Coroner’s Finding

A District Court may set aside a coroner’s finding and order a fresh inquest where the finding ‘could not be reasonably supported by the evidence’.^[13] Pack J interpreted this test as determining whether the coroner has satisfied ‘the need to exclude a competing hypothesis’.^[14] He stated,

the Coroner has failed to weigh the evidence always keeping in mind that alternative hypotheses needed to be considered and excluded before inferences adverse to Hurley could be drawn from proven facts.

Specifically, he referred to medical evidence ‘supporting the proposition Hurley fell on Mulrunji’ and that the abdominal injuries were caused by Hurley’s knee.^[15]

This test does not reflect the ordinary meaning of the language of the statute: there is nothing in the Coroners Act to indicate that, for a finding to be ‘reasonable’, all other propositions must be proven invalid. It is also at odds with the standard developed in other Australian jurisdictions, outlining when a coroner’s findings may properly be set aside. In South Australia, for example, s 27 of the Coroners Act 2003 (SA) provides that the Supreme Court may set aside the findings of an inquest and order a fresh inquest if the initial finding is not open on the evidence. Drawing on case law from multiple jurisdictions, Debelle J interpreted this provision in Saraf & Anor v Johns. His Honour held that the court should ‘limit its role’ in correcting a coroner’s finding, stating that,

If on any reasonable view of the evidence the Coroner’s decision can be supported, the appellant who complains of that decision cannot have it set aside and have another decision that the appellant desires substituted for it.

His Honour emphasised that ‘reasonable minds may reasonably disagree as to the cause’ of a death, but that the existence of multiple possible interpretations did not render any individual interpretation unreasonable.^[16]

Ms Clements’ findings were based on a reasonable interpretation of the evidence. Hurley himself stated in multiple police interviews that he had fallen to the side of Mulrunji as they had entered the police station, suggesting that the injuries had not been caused by Hurley’s knee pressing into Mulrunji’s abdomen.^[17] All the medical evidence concurred that a fall of the two men side by side onto a flat surface was unlikely to have caused Mulrunji’s injuries.^[18] There was a witness who gave evidence that he had seen Hurley’s elbow go up and down three times, and had heard Hurley simultaneously shout, ‘You want more Mr Doomadge, you want more?’^[19] This evidence supports the hypothesis that Hurley punched Mulrunji in the stomach.

Justice Pack correctly stated there was some chance that Mulrunji had received his injuries when Hurley fell on top of him. The medical evidence left open this possibility; Hurley had also acknowledged before the coroner that he may have fallen on top of Mulrunji, contrary to his previous statements to police investigators. However, even if this ‘accidental death hypothesis’ is considered reasonable, that does not speak to the reasonableness of the coroner’s finding.

Judge Pack’s interpretation of the test for setting aside a coroner’s finding seemed to afford Hurley the high degree of protection he would enjoy in a criminal trial. That is, the coronial version of events need not merely be reasonable, but must be provable beyond reasonable doubt. Defining the test for setting aside coronial findings in this way may set a troublesome precedent. In criminal trials, if the incriminating version of facts cannot be proven to the exclusion of others, the accused will be acquitted. In an inquest, however, if District Court judges were to set aside findings whenever an alternative hypothesis was available, inquests could potentially continue indefinitely. That is, District Courts could repeatedly find that another hypothesis could not be excluded with complete certainty.

The Scope of a District Court Review of an Inquest

In a criminal trial, a jury’s purpose is to determine whether the accused performed an act or series of acts that constitute an offence. Previous or subsequent acts or circumstances are defined as circumstantial evidence and have limited weight in the final verdict. In an inquest, though, s 46(1) of the Coroners Act empowers coroners to make comments on diverse circumstances surrounding a death in order to make recommendations to improve the administration of justice and to prevent deaths in the future. Courts have held that the scope of circumstances in which coroners can legitimately include in their comments should be construed ‘liberally’.^[20]

In a review of a coroner’s finding, a District Court is allowed to set aside a coroner’s finding;^[21] that is, the cause and manner of the death in question. Judge Pack’s decision exposed the deficiency of such reviews: its narrowness means that prominence is removed from a coroner’s comments and recommendations.

Justice Pack’s decision placed disproportionate emphasis on the direct cause of death: whether Mulrunji’s abdominal injuries were caused by punches to his stomach delivered by Hurley. Ms Clements’ initial findings, on the other hand, took into account the ‘overall sequence of events’ that resulted in Mulrunji’s death.^[22] For example, she considered the fact that Hurley had alternatives to arresting Mulrunji but had chosen to exercise his discretion to take Mulrunji into custody.^[23] Justice Pack, however, largely dismissed the arrest as a salient factor, describing it as having ‘limited relevance’ to the question of whether Hurley later punched Mulrunji at the police station.^[24] Similarly, the coroner included substantial findings on the poor quality of care that Mulrunji had been afforded in custody. He had been checked only twice over the two hours he spent unconscious in the police cell, for only a few seconds each time. Even when the second check cast serious doubt upon Mulrunji’s health, none of the officers in the watchhouse had the skills, equipment or inclination to attempt CPR.^[25] Justice Pack, though, made no remarks whatsoever about the police officers’ serious breaches of their duty of care to Mulrunji.

Focusing exclusively on an act that may indicate criminal liability – that is, whether Hurley had punched Mulrunji – diverts attention from the important comments and recommendations that Ms Clements included in her report. Ms Clements specifically commented on the need to

• increase police awareness of alternatives to arrest in cases involving public nuisance and public drunkenness offenders;

• expand first aid training for all officers; and

• improve processes for monitoring prisoners’ health while in custody.^[26]

Most emphatically, she also espoused the need to increase transparency in post-mortem police investigations. In this case, all the investigating officers came from the Townsville region and so were friends or at least acquaintances of Hurley’s. Hurley had met them at the Palm Island airport, driven them to the scene of the death, and invited them to dinner at his house that night – an invitation which the officers had accepted. The coroner recommended an overhaul of police investigation procedures to ensure not only greater impartiality, but also the appearance of greater impartiality.^[27] Judge Pack, however, made no reference to the police investigations.

This decision, framed in terms of whether an ‘inference adverse to Hurley can be supported’ diminishes the importance of Ms Clements’ comments. Yet those comments all echo RCIADIC recommendations, which Queensland is yet to fully implement. The absence of any mention of measures to prevent future deaths in custody has left an indelible impression of injustice upon Palm Island residents – all the more so given the District Court’s failure to even notify residents of the present decision. One Indigenous leader in Townsville, Gracelyn Smallwood, reflected local sentiment when she stated, ‘the police and the Government get off scot-free’. She described Pack J’s decision as an instance of ‘bully boys getting their own way while Aboriginal people suffer’.^[28] Such disenchantment with the legal system further erodes relations between the Indigenous community and the police force on the Island.

The Coroners Act does not mention whether a District Court may review a coroner’s comments and recommendations: it is unclear whether, had he been so inclined, Pack J would have been within his legislative authority to either dispute or support Ms Clements’ comments. Either way, this decision diminishes the value of an inquest as a vehicle to improve the administration of justice. By failing to mention matters critical to Mulrunji’s death, the public reaction it received, broader issues of police discretion, police negligence, or the need for transparent and accountable police investigation procedures, the decision undermines coronial attempts to prevent similar deaths in the future. In order to avoid such a narrowing of the focus of the review of an inquest, the Queensland Government should consider amending the Coroners Act to expressly allow or even compel judges to reflect on the comments as well as the findings of a coroner.

Conclusion

It was a deliberate choice on the part of the Queensland legislature to decouple inquests from criminal proceedings. This choice was partly based on a commitment to maintaining the rigour of criminal trials, but also to protect defendants against the possibility that otherwise inadmissible evidence might be used against them in subsequent court proceedings. But there was another rationale: to preserve the integrity of coronial proceedings. By interpreting the standard for setting aside Ms Clements’ finding as hinging on the exclusion of alternative hypotheses – rather than whether the coronial finding was reasonable –Pack J set a questionable precedent for reviews of inquests in the future. Further, the absence of any discussion of the coroner’s recommendations has significantly tarnished the appearance of justice being done in this case. The Queensland legislature should consider a means of redressing this fault in the coronial process.

Naomi Hart is in her final year of an Arts/Law degree at the University of Sydney. She has worked for several years as a legal assistant at Redfern Legal Centre, has completed an internship at the Sydney Centre for International Law, was a contributing author to the Australian Yearbook of International Law in 2008, and is currently the Executive Director of The Globalist, an undergraduate international affairs magazine published in ten countries.

---

^[1] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol. 1, 109.
^[2] Office of the State Coroner (Qld), Finding of Inquest – Inquest into the Death of Mulrunji (27 September 2006) COR 2857/04(9) 7-8.
^[3] Ibid 2,32.
^[4] ‘Palm Island rioter Lex Wotton gets six years jail’, The Australian (Canberra), 7 November 2008.
^[5] ‘Police Union rejects Mulrunji inquest ‘witch-hunt’’, ABC News Online, 27 September 2006.
^[6] Hurley v Clements & Ors [2008] QDC 323 (18 December 2008) per Pack J [88]-[90].
^[7] ‘Judge overturns Doomadgee finding’, The Australian (Canberra), 19 December 2008, 1,6.
^[8] R v South London Coroner; ex parte Thompson (1982) 126 SJ 625 per Lord Lane CJ; R v Tennent; ex parte Jager [2000] TASSC 64 per Cox CJ.
^[9] Cf Coroners Act (Qld) 1958 s 24(1)(d) which enabled coroners to commit individuals to trial for murder, manslaughter or other offences, and s 43(2)(b) which compelled coroners to include in their findings the identity of any person(s) committed for trial.
^[10] Cf Criminal Code (Qld) 1899 s 644A, Evidence Act (Qld) 1977 ss 10,15.
^[11] Office of the State Coroner (Qld), above n2, 22.
^[12] ‘Police Union welcomes new Hurley inquest’, Brisbane Times (Brisbane), 20 June 2007.
^[13] Coroners Act (Qld) 2003 s 50(5)(d).
^[14] Hurley v Clements, above n6, per Pack J [83].
^[15] Ibid [79]-[88].
^[16] Saraf & Anor v Johns [2008] SASC 166 per Debelle J at [19], [23] [emphasis added]. See also Khan v Keown & Anor [2001] VSCA 137; R v Tennent [2000] TASSC 64; (2000) 9 Tas R 111.
^[17] Office of the State Coroner (Qld), above n2, 13,15,17,19-20.
^[18] Ibid 7.
^[19] Ibid 20.
^[20] Doomadgee v Clements [2006] 2 Qd R 352 per Muir J at [31].
^[21] Coroners Act) s 50(5)
^[22] Office of the State Coroner (Qld), above n2, 25.
^[23] Ibid 28,29.
^[24] Hurley v Clements, above n6, per Pack J [42].
^[25] Office of the State Coroner (Qld), above n2, 27,32-33.
^[26] Ibid 28-32.
^[27] Ibid 31-33.
^[28] Murphy, ‘Judge overturns Doomadgee finding’, above n7, 1,6.