The letter below is from The Weekend Australian, Saturday, December 30, 2006. It is entitled DPP and Beattie have brought discredit to their offices. It refers to the death in custody of Mulrunji Doomadgee, the background of which can be found here and here over at public opinion. The letter is written by Scott McDougall, Director of the Caxton Legal Centre in New Farm, Queensland. It is a good letter. It will disappear from the public sphere and go behind News Corps paid wall tomorrow.

Before considering the appropriateness of the respective actions of the Director of Public Prosecutions, Leanne Clare, and the Queensland Government, it’s important to first consider the evidence that would be admissible against Senior Sergeant Chris Hurley in a criminal trial over the death in custody of Mulrunji Doomadgee.

The following published summary of the evidence by Peter Callaghan, senior counsel for Mulrunji’s family at the coroner’s inquest, has not received challenge from any quarter:

Senior Sergeant Hurley arrested and incarcerated Mulrunji (the triviality of his “offence” and any unlawfulness attaching to the arrest need not be debated). As Mulrunji was removed from the police van he struck Senior Sergeant Hurley a blow to the face. Hurley immediately punched him back. This evidence would be given by a sober and respected elder of the Palm Island community. The fact that she described Mulrunji striking the first blow establishes her objectivity. A scuffle ensued and both men did fall on to a flat, hard floor at the same time. No one else saw exactly how the bodies were positioned at the moment of impact with the ground; Hurley was then heard, by another police officer, yelling abusively at Mulrunji; Mulrunji was placed in a cell where he bled to death, internally. He had suffered a ruptured liver and four broken ribs. Severe force was required to cause these injuries – the sort of force conventionally associated with a high speed motor vehicle trauma. The medical evidence established conclusively that these injuries could not have occurred in the course of a simple fall to a flat surface. The only way they could have been sustained in a fall is if someone had fallen on top of Mulrunji in a particular fashion. In a conversation with a close friend and colleague, Hurley said that he had fallen next to Mulrunji. Such a fall could not have caused the death. Photos of the corpse also revealed an injury to Mulrunji’s eye. This injury was not present when he was taken into police custody. It was unlikely to have been caused in the same action which damaged the liver.

Leanne Clare not only decided that there was insufficient evidence to prosecute a criminal offence, she publicly exonerated Hurley by offering her conclusion that the death was a “terrible accident”. In the face of the admissible evidence, such a decision would require clear evidence that the “particular fashion” of the fall was accidental and did not involve any element of voluntariness or recklessness on Hurley’s part. As the admissible evidence stands, the direct evidence of Hurley punching Mulrunji outside the station, combined with the forensic evidence of the injury to Mulrunji’s eye and evidence from a police officer about Hurley’s verbal abuse, might convince a jury that the manner in which Hurley fell on Mulrunji was not accidental.

Clare says that in making her decision she sought and received further evidence. However Clare has been unprepared to disclose the nature or source of the evidence and the public has been left to speculate as to what the further evidence is. Given the overwhelming public interest in this case, Clare’s naivety in thinking that such a situation would be tenable suggests that she lacks the nous necessary to hold the office of the DPP.

Therefore, Clare’s error has not been limited to the making of the decision not to prosecute. She has discredited the office of the DPP by failing to disclose adequate reasons for her decision, for failing to seek an interstate opinion (as she had done previously in recent cases), by refusing to disclose the further evidence she acted upon and by offering gratuitous and inflammatory remarks such as that she is required to act upon “evidence” rather than “emotion”.

For his part, Premier Peter Beattie has needlessly brought himself undone by trying to finesse a safe political position rather than allowing the Attorney-General, Kerry Shine, to act decisively to maintain public confidence in Queensland’s justice system. It’s the primary responsibility of the Attorney-General, as the state’s chief legal representative, to oversee the administration of justice in Queensland. Mr Shine has already demonstrated a capacity and willingness to protect the integrity of the justice system by initiating contempt charges against the president of the Queensland Police Union following an attack upon the Acting State Coroner.

Given Clare’s refusal to seek an interstate counterpart’s opinion, it was entirely appropriate for Mr Shine to take action to initiate his own independent review. Should that review find that charges should be laid against Hurley, it is open for the Attorney-General to present and prosecute an indictment on his behalf and he should not hesitate to do so.

Comments

Posted by: mark b | January 9, 2007 5:27 PM