Palm Tree Justice?

Of course, I have been following the newspaper reports of outrage by members of the Palm Island indigenous community at the decision of the Queensland Director of Public Prosecutions not to prosecute Chris Hurley, a policeman involved in the death of Mulrunji, an indigenous man living on Palm Island. The decision will now be reviewed by former Chief Justice of the District Court, Pat Shanahan and Peter Davis, SC.

I don’t like to come to knee-jerk conclusions on matters like this. I like to look at all the information available and make up my mind. Consequently, this post will be reasonably in-depth, as I don’t think any of the news reports I have read went into enough detail.

1. Findings of the Coroner’s report
The Coroner’s report made the following findings:

  • Mulrunji (also known as Cameron Doomadgee) was a 36 year old man who had never previously been in trouble with the police.
  • Senior Sergeant Chris Hurley was in charge of the Palm Island police station. Hurley was called out to assist three sisters. The sisters had been assaulted by Roy Bramwell, the de facto partner of one of the women, Gladys Nugent. Hurley took Gladys Nugent to pick up her diabetes medication at a house in Dee Street. Outside the house in Dee Street was a young man called Patrick Bramwell, who was drunk and swearing at the police. His grandmother complained to Hurley about his behaviour, so Hurley arrested him and put him in the police van.
  • Meanwhile, Lloyd Bengaroo, the Police Liaison Officer, was in the van when Mulrunji walked past. Mulrunji and Bengaroo knew one another. Mulrunji asked Bengaroo why he was helping to lock up his own people. He was apparently drunk. Bengaroo told Mulrunji he had better keep on moving or else he’d be arrested. Mulrunji walked off. When Hurley got back into the car, he asked Bengaroo what Mulrunji had said, and Bengaroo related the exchange to him. Hurley then said he’d better arrest Mulrunji. They drove after Mulrunji, who turned and swore at them. Hurley arrested Mulrunji and put him in the back of the police van with Patrick Bramwell.
  • The police van arrived at the police station. Meanwhile, Seargeant Leafe had arrived at the police station with Roy Bramwell (the man who had assaulted his de facto partner and her sisters). Roy Bramwell was seated in the station awaiting questioning.
  • There is conflicting evidence from the point where Hurley went to get Mulrunji out of the van. Mulrunji was protesting that he should not have been arrested, and was uncooperative when Hurley tried to shepherd him into the police station. Mulrunji swung a punch at Hurley, and hit him in the jaw. Some witnesses said that they saw Hurley hit Mulrunji back with a jab to the ribs, but Hurley denied this.
  • Hurley was attempting to drag or grapple Mulrunji into the police station, when they both fell through the back door of the police station. In his initial statements, Hurley said that he did not fall on top of Mulrunji, but to the left of him, beside him. However, at the Inquest, Hurley gave evidence that he fell on top of Mulrunji.
  • Roy Bramwell was sitting waiting to be interviewed. His evidence was that he saw Hurley and Mulrunji fall. Mulrunji was lying on the ground and his feet were protruding from behind a filing cabinet. He saw Hurley get up. His evidence was that he saw Hurley’s elbow rise and fall threee times above the filing cabinet in a punching action. He could not see the rest of Mulrunji’s body, so he thought that Mulrunji could have been punched in the head. He also alleged that Hurley said “you want more, Mr Doomadgee, you want more?” Another witness, Constable Steadman, said that he heard Hurley say something in an abusive tone to Mulrunji after they fell through the door. However, he did not see what happened inside the station, as he was waiting outside for things to “settle down”.
  • Hurley gave evidence which directly conflicted with Roy Bramwell’s evidence. He said that he was trying to pick up Mulrunji by grabbing him by his shirt, and he had to try to grab him three times because Mulrunji’s shirt kept ripping in his hands. His evidence was that the movement of his elbow was as a result of his efforts to hoist up Mulrunji. The CCTV footage showed that Mulrunji’s shirt was indeed ripped. Hurley denied saying anything abusive to Mulrunji and denied that he punched Mulrunji.
  • Mulrunji was dragged into the cell and left there. Patrick Bramwell was then put into the cell with him. According to the CCTV footage, Mulrunji was apparently in great distress and writhing with pain. He was calling for help. No one came to help him, but Patrick Bramwell attempted to comfort him.
  • An hour later, when Leafe went to check on Mulrunji and Patrick Bramwell, he found that Mulrunji was unnaturally cold and not breathing. Hurley confirmed this. The police called an ambulance, who pronounced Mulrunji dead.
  • An autopsy disclosed that Mulrunji had died as a result of intra-abdominal haemorrage. Specifically, Mulrunji’s liver had been almost totally cloven in two and the hepatic portal portal vein had been ruptured so that there was a hole measuring 1.5 x 0.7cm along it. Four of Mulrunji’s ribs (from the 6th rib to the 9th rib) were fractured.
  • The doctors who completed the two autopsies on Mulrunji concluded that the injury to the liver was extremely unlikely to have been caused merely by a fall onto flat ground. The injury required significant compressive force. However, the doctors concluded that such an injury may have been caused by Hurley falling on top of Mulrunji with hard force, jabbing him in the abdomen with a knee or an elbow.
  • The initial investigation by the police suffered from a perceived bias. Hurley picked up the two investigating officers, one of whom was a friend, and the officers stayed at his house and ate dinner with him. This was not appropriate. However, the later investigation by the Crime and Misconduct Committee was entirely appropriate.

The Coroner found that Hurley lost his temper after Mulrunji punched him and after they fell to the floor. She accepted Hurley’s initial statements that he did not fall on top of Mulrunji, but to the left of him. She also accepted Roy Bramwell’s evidence that Hurley appeared to have punched Mulrunji after they both fell to the floor. She found that Hurley punched Mulrunji and caused the damage to his liver. Therefore, she concluded that Mulrunji died as a result of the injuries caused by Hurley.

The standard of proof applied by the Coroner is, as she acknowledges, a civil standard of proof, that is “on the balance of probabilities”. However, although it is “on the balance of probabilities”, it is a higher standard (called the Briginshaw standard) than the usual civil standard because of the seriousness of the allegations. The Coroner is empowered to refer the matter to the Director of Public Prosecutions pursuant to s 48 of the Coroners Act 2003 (Qld), which she did in this case.

2. Discretion of the Director of Public Prosecutions

The Director of Public Prosecutions is empowered to prepare, institute and conduct criminal proceedings in Queensland pursuant to s 10 of the Director of Public Prosecutions Act 1984 (Qld).

The Director of Public Prosecutions in Queensland has published a Policy Statement, which says the following about the decision to prosecute for an offence:

“The criteria which are to be applied in deciding whether to prosecute fall into two categories. First, is the evidence sufficient to justify proceedings? Second, does the public interest require a prosecution? The prosecutor must be satisfied as to the first question before moving on to the second.”

In determining whether there is enough evidence, the Policy Statement says that “the existence of a bare prima facie case is not enough. A prima facie case is necessary; however, a prosecution should not proceed if there is no reasonable prospect of securing a conviction before a hypothetical reasonable jury in jury trials.”

Of course, the Director of Public Prosecutions must consider that an offence is likely to be able to be proven beyond reasonable doubt (the criminal standard of proof), which is a higher standard than the civil standard. The Policy Statement lists a variety of factors to be taken into account, including admissability of evidence and whether there is any conflict between eyewitness accounts. The Director of Public Prosecutions must then move on to consider the public interest.

It should also be noted that the purpose of a Coroner’s report is quite different to a prosecution. A Coroner’s report is a fact-finding mission which is not subject to the laws of evidence, where as a prosecution is intended to apportion blame, and is thus subject to strict laws of evidence. Hurley’s evidence given at the Inquest could not be used against him in a criminal trial because of the privilege against self-incrimination: see also s 39, Coroners Act 2003 (Qld). Presumably Hurley’s various statements to police investigators would be inadmissible at trial because of the operation of the privilege against self-incrimination.

In her statement to the media, the Queensland Director of Public Prosecutions found that Mulrunji died as a result of a “complicated fall” and was a “terrible, terrible accident”. The press release regarding the finding is no longer available on the Internet.

3. Analysis of the decision of the Director of Public Prosecutions

Was the decision of the DPP not to prosecute a reasonable one? After reading the Coroner’s report in detail, I felt very strongly on a moral level that the decision of the DPP was unfair. Mulrunji was a man with a previously unblemished record who died because he offered a bit of cheek to a policeman. I note that the arrest of Mulrunji in those circumstances was exactly the kind of thing which the Report on Aboriginal Deaths In Custody said should be strongly discouraged. It was recommended by the Report that instead of arresting indigenous people for public drunkenness and like offences, some other kind of less punitive measure should be put in place to prevent precisely this kind of incident occurring.

From the Coroner’s report, it seems that there are two conflicting accounts as to how the injury of Mulrunji came about. On the one hand, Hurley says that it must have arisen from the fall through the door of the police station, and denies having punched or abused Mulrunji. His evidence is that he must have fallen on Mulrunji, despite the fact that he gave conflicting statements prior to the Inquest indicating that he did not fall on Mulrunji. On the other hand, Roy Bramwell says that after Hurley and Mulrunji fell through the door, Hurley got up and Bramwell witnessed a motion which looked like Hurley was punching Mulrunji. It is essentially a case where Hurley’s word is pitted against Roy Bramwell’s word.

However, at trial, Hurley would be entitled to claim the privilege against self-incrimination. As stated above, the evidence given at the Inquest could not be used against him at all. I am also presuming the statements made to various police investigations could not be used against him because of the privilege against self-incrimination. Thus the inconsistent evidence given by Hurley about the way in which Hurley and Mulrunji fell would not be admissible. Without this evidence, the case against Hurley looks a lot less strong. The prosecution would have to prove beyond reasonable doubt that Mulrunji’s death occurred as a result of punches administered by Hurley, but could not use Hurley’s prior inconsistent evidence that he fell beside Mulrunji rather than on top of him. Thus, they would have difficulty proving that the injuries could not have been caused by the fall. They would only have the account of Roy Bramwell to rely upon, and Bramwell did not actually see Hurley hit Mulrunji. They would have to ask the jury to draw an inference that Mulrunji’s injuries could not have been caused by a fall, and must have been caused by punches.

I must concede that I do not know the other evidence to which the DPP had access. Perhaps she had evidence which discredited the evidence given by Roy Bramwell? Perhaps she felt that Roy Bramwell’s evidence lacked credibility because he was in the police station for violence against his de facto wife and her sisters? Perhaps she had an account by an eyewitness who did not give evidence to the Coroner? The Coroner concludes that the evidence given by Bengaroo was unsatisfactory and lacking in detail, and that he probably saw more than he let on. I do not know. I am always wary of second guessing decisions where I have not been in the position of seeing all the evidence. As I have said in another post, there is a big difference between sitting on a jury and deciding a case based on detailed evidence and submissions, and reading a brief sensationalised article about a case in the paper.

Given what I have said above, I can understand how the DPP came to the decision that there was not sufficient evidence to prove beyond reasonable doubt that Hurley killed Mulrunji by a punch to the abdomen. The DPP must have considered that there was a prima facie case, but there was not a reasonable prospect of securing a conviction if the matter went to trial.

Nevertheless, I still think that I would have made a different decision based on the evidence I have read. I must acknowledge (as I have acknowledged before) that I am not a criminal lawyer, even less an experienced criminal lawyer like the DPP. But I would still think that the evidence of Roy Bramwell along with the evidence of the autopsy was strong enough to mean that Hurley should at least stand trial, and that this could be used as circumstantial evidence to prove that he caused Mulrunji’s death. I would also take into account the strong public interest in seeing that such alleged offences are prosecuted, and the necessity that the justice system not be seen to favour police officers and to disadvantage indigenous people.

It will be interesting to see what the conclusion of the review is.

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16 Comments

Filed under criminal law, deaths in custody, indigenous issues, Palm Island

16 responses to “Palm Tree Justice?

  1. iain

    Hi LE
    A good well thought out piece but on the issue of Bramwell’s evidence.
    I think that his evidence would be most unreliable, firstly he was very drunk, and his view of events was limited by his position in the room and a filing cabinet. Bramwell also has a long history of animosity to wards the police. All of these points were made by a piece in the Australian by Headley Thomas about a week ago.
    So once you don’t have his evidence the case against Hurley is very weak indeed.
    In the end is the public interest served at all by bringing a prosecution that is bound to fail, even when many “feel” that there should be a trial?

  2. David J

    I am also presuming the statements made to various police investigations could not be used against him because of the privilege against self-incrimination.

    Are you sure?

    Surely the privilege means that you can’t be forced to testify, but that once you have said something to a police officer it is admissible?

    And surely an admission against interest is also admissible?

    The fact that Hurley told investigating detectives three times that he fell next to (not on top of) Mulrunji, only changing his story at the inquest, is, I think, the core of the case against him.

    If Mulrunji’s fatal injuries were not caused by Hurley falling on top of him, it seems very likely that they were caused by a criminal assault.

    Note that approaching the case this way means that Bramwell’s testimony is not needed.

    Thank you for the exact references to the regulations and rules governing the DPP’s decisions.

  3. Legal Eagle

    Thank you, David J, for making me get off my bottom and actually look up my evidence law again. I must confess that it was never my strong point, as I scarcely ever had to use it in practice as a solicitor!

    I presume that Hurley will refuse to give evidence in any trial. Therefore, the prosecution would have to call for production of the documents comprising the statements of interview to prove that Hurley had said he did not fall on Mulrunji.

    I presumed that in any trial, Hurley would claim the privilege against self-incrimination in relation to the statements of interview, and refuse to produce them. However, now that I think about it, such documents would be in the possession of the police, not Hurley personally, so the privilege cannot be claimed by him after all.

    In any case, even if Hurley could claim the privilege against self-incrimination in respect of the records of interview, it could be argued that he waived it by answering the questions of the investigating officers freely. (Eek! Those Evidence Law brain cogs are moving very rustily. It’s a long time since they’ve moved).

    I agree with David J that the pivotal point against Hurley is the fact that he said he did not fall on Mulrunji, then suddenly changed his story at the Inquest. This is what makes me think that there is a case against him, and that there should be a trial. If Hurley did not fall on Mulrunji then an inference can be drawn that the injuries were caused in some other way. Hurley was the only person who had contact with Mulrunji in between the time when he was taken out of the van and placed in the cell. So Hurley was the only person who could have caused such injuries, and the inference to be drawn from the extent of the injuries is that Hurley must have hit Mulrunji with significant compressive force. It’s circumstantial, but not far-fetched.

    It may well be, as Iain has suggested, that Roy Bramwell may not be an entirely credible witness because of his intoxication at the time of the events, and his obstructed view of events. However, I think in circumstances like this, you have to let the jury make up their minds as to the credibility of his evidence. And as David J has noted, his evidence becomes less important if the first three statements of interview are admissible.

    So to my mind, this strengthens the argument that there should be a trial of Hurley.

  4. Andrew Bartlett

    You’ve made a measured assessment, but I believe there are a few extra questions which need answering.

    The most compelling question for me, which has not been answered or even addressed by the Premier, the A-G, the Solicitor General’s legal advice the Premier released, the Police Union or anyone else is:
    how and why did the DPP come to a conclusive finding that the death ‘must have been a tragic accident’ from a ‘complicated fall’?

    This does not match the expert medical from the coroner’s inquest, which you detailed in your post (and which I assume would be admissable in a trial). It is at best a possibility that the injury may have come from a heavy fall, although I have to say that it would have to be one hell of a fall to cleave someone’s liver in half in one go.

    I can understand the DPP making an assessment that the admissable evidence wouldn’t be enough to secure a conviction, regardless of whether I’d agree with it or not (not having seen or even knowing the origin of the mysterious ‘additional evidence’ which the DPP used to justify her decision and finding). But how can she also make a conclusive finding of accidental death? I would have thought it’s outside her job requirements, apart from being at odds with the expert medical evidence.

    There are other matters which add to the problem, although perhaps technically outside the immediate ambit of the DPP decision. However, taken together with the DPP decision (and her ‘finding’ and now the whole wierdness of whether she voluntarily offered her file to the A-G or not so he could launch an independent review), I think they point to a major problem.

    This includes the facts that:
    – after two years, there has been no action taken in regard to the clearly seriously flawed initial investigation;
    – there are appear to be no other actions taken in regard to basic failure of duty of care, and lying to the family when they first came to visit the lock-up;
    – this contrasts with the immediate overkill by the police in following up from the riots after the death (which were in response to the first flawed investiation and finding), which saw flocks of riot troopers bursting down doors and holding guns to people’s heads; bail conditions which amounted to exile from home and family; government appeals of the initial sentences for those who pleaded guilty resulting in them copping jail sentences.
    – the initial decision of the Police Service (publicly backed by the Premier) not to stand the police officer down from duty when the Coroner’s finding was first made that he had caused the man’s death in custody.

    Of course, on top of this there is the whole history of government and police treament of Aboriginal people in Queensland, which I know can’t be core to the DPP’s decision, (although could be partly relevant to the public interest test). Just try imagining what the result would have been in the reverse situation where somehow the police officer had died in the ‘complicated fall’ and the Aboriginal man was unharmed. He’d have been arrested straight away, refused bail and still be in custody today awaiting trial.

  5. Legal Eagle

    Yes, I agree with you that it was outside the DPP’s ambit to conclude that it was a “terrible, terrible accident” and that the injuries were caused by a fall. That is a decision for a judge or a jury, to my mind. I haven’t commented on the way in which she phrased her statement to the media in my post, because I can’t find the original statement on the Internet any more, just excerpts in newspaper articles. That irritates me, because I like to have all the information. The whole thing is bizarre in the extreme.

    It would have been acceptable for the DPP to say that the evidence did not prove beyond reasonable doubt that Hurley hit Mulrunji, but it was inappropriate to draw a factual conclusion.

    The conduct of the police afterwards was absolutely appalling, including the lies to Mulrunji’s family about his death, the over-the-top response to the riot, the lack of transparency and independence of the initial investigation and so forth. It confirms a perception that the system is biased towards the police and against indigenous people. I have not considered these things in making my assessment because they are part of the broader political context. They help explain why Mulrunji’s family and Palm Islanders are so upset, but they are not directly relevant to the decision to prosecute, except (as I mentioned) as a part of the public interest test.

    It is extremely disappointing that such things can happen after the Report on Aboriginal Deaths in Custody, which sought to rectify the imbalance. I agree that the response would be totally different if an Aboriginal man had killed a police officer.

  6. Anonymous

    And for trivia buffs, did you know that DPP ‘Leanne Clare’ was previous Brisbane Crown Prosecutor ‘Leanne Hurley’.

    For ‘evidence’ search for ‘Hurley’ in this document: http://www.hansard.act.gov.au/HANSARD/1992/pdfs/19920624.pdf

  7. Scott

    The case against Hurley does not require Bramwell and is strengthened by the admissible evidence of Hurley’s close friend and colleague, who stated that Hurley said he fell next to Mulrunji, not on top of him.

  8. JB

    I must say this is a very good piece of literature, However you are wrong on your law on the privilege against self incrimination. Snr Sargent Hurley has already admitted the aforementioned, that constitutes a confession of those fact, he now can not use the privilege to protect statements already made. Also whilst the DPP does not have the power to put him on the stand, if he elected to take the stand the privilege will fall due to past comments stated and any inconsistencies therein.

    Any reasonable crown prosecutor who knows there law could easily win a committal against Hurley, However Leanne Claire being the epitome of inadequacy of our legal system and the cause of the people of Queensland being victim to another appalling Labour Government parliament decision resulting from the inept policy of positive discrimination.

  9. reason

    Thank you for going to so much trouble Legal Eagle.

    However personally I don’t see what all the fuss is about. I would have thought that Hurley will give evidence, he presents well and his favourable evidence could assist the defence case and the issue of his comments regarding the fall will be of limited significance for a jury.

    Juries are typically taken from the general community. They often have a better insight into rough and ready issues due to their experiences in a less than privileged background. You might be aware that a charge often levelled at judges when the jury system is advocated relates to the limitations on understanding things outside of their experience. Accordingly, the fact that Hurley said he fell on the left and then said he must have fallen on top will probably be a non-event.

    I am aware of the significance that some place on Hurley’s comments and aware of my audience so I’ll explain the issue not to be patronising but simply because I believe that some in here might overlook that which is important due to lack of experience. A jury could be virtually guaranteed to not make the same mistake.

    When I read about Hurleys fall and his subsequent comments it reminded me of an experience at High School cadets (example 1). Below I relate that experience together with the example a friend in the police service gave when I told him about the emphasis on Hurley’s comments about where he fell (example 2). I hope these help clarify things for those who might not have been afforded the opportunity to understand how people work in these types of situations due to lack of personal experience.

    Example 1 We were playing a game where tapping people on the shoulder was important. Like Hurley there was some excitement involved (albeit not as much). Like Hurley’s focus on Mulrunji’s head not hitting the filing cabinet I was focussed on someone’s shoulder. I leapt out from cover and thrust out a hand tapping a fellow cadet’s shoulder and said “gotcha”. That is all I noticed. His perception was quite differently. The force of my rapidly moving hand bumping his jaw captured his attention particularly as it was sufficient to make him feel sick afterward. He also noticed me say “Gotcha”. I heard third hand that he was not impressed and apologized once I was aware of the situation. Naturally, after reading the description of the fall in the acting coroner’s report, I would be amazed if Hurley knew exactly how he fell.

    Example 2. A friend of mine pursued a suspect and arrested him. My friend was pumping adrenaline due to the excitement involved. The suspect punched him while being arrested. My friend punched him back. Nothing serious but a factual part of the arrest. At least he is sure that is what happened because credible witnesses said so. He had no recollection of either punch during the course of the scuffle.

    That is what two people with broadly analogous experiences thought of when they heard about the fall and Hurley’s subsequent comments. At least some people on the jury are likely to be able to relate it to their own experiences. A judge might lack the benefit of such experiences in considering the evidence. A jury will not. Hence it will probably not seem too important to the jury.

  10. Legal Eagle

    I think you make some very interesting points, Reason.

    Human perception is a funny thing and the human memory is not necessarily an accurate record of what has occurred.

    On the weekend, I was having an argument with my Mum and sister about a memory I had of a visit to a family friend’s house when I was a teenager – I had one version of events, whereas my mother and sister looked at me blankly when I recounted what “happened”, and denied that my memory was accurate. Their denial doesn’t change the fact that I remember a certain thing happening, and I’m sure they’re convinced I’m delusional.

    It’s one of the problems with legal cases: people say what they think occurred, and one has to assess from that what actually occurred – it can often be impossible to know what actually occurred.

    I think in situations of stress a person’s mind can react strangely too. I saw my sister hit by a car when I was young (she was okay, just had a broken leg) – I can remember the details of the car almost perfectly (it was red, looked like an old model Nissan) but apparently the driver spoke to me afterwards, and I can’t remember what he said at all.

  11. reason

    Exactly! and good point about stress.

    Most people can relate this type of thing to their experience. Members of the judiciary don’t have that advantage. For example the Acting Coroner seemed to conclude that Hurley had the appearance of telling the truth but concluded he must have been lieing (“Despite a steady demeanor … does not persuade me he was truthful…). Reading the report this seems to be solely because he didn’t know where he fell.

    Compare that with a jury understanding this human quality we have discussed. Hurley’s situation seems toward the extreme end of the spectrum. The end where a human could not be expected to know where they fell. The jury will realize that.

    Hurley gets punched in the jaw. There is a struggle. According to witness Mr Bonner, Mulrunji is in front. Adrenaline is presumably pumping. Hurley falls downstairs with Mulrunji. Presumably Mulrunji goes over the edge first with Hurley tring to hold on to him (if Mulrunji is in front). While falling downstairs Hurley is noticing Mulrunji’s head moving dangerously close to a filing cabinet. They hit the floor. Remember, if Hurley fell on top, it could only be a knee or elbow. It is hard to imagine a 200.33cm 115kg Hurley balancing on a knee or elbow for 5 seconds or even 1 second. Obviously it would be a split second thing and obviously he would have ended up on the left or right. Of course presumably Constable Steadman will continue to say that it appeared that Hurley landed on top of Mulrunji.

    That is a blow by blow account of the fall as the Acting Coroner’s report would suggest it happened if Hurley fell on top. However don’t be misled. Falling objects accelerate at 9.8m/s2. The entire fall would have been extremely quick.

    Further, it isn’t nice to think so cold bloodedly about Mulrunji but if Hurley fell on top then Mulrunji would have broken his fall. If Hurley hit spikes with a knee or elbow it would injure him and he would either notice or soon realize. This is the opposite so there is no reason to think that it would be memorable.

    I said it was at the extreme. You pointed out that stress can interfere with the mind. Mulrunji actually died. No matter what caused the death Hurley would clearly have experienced stress.

    Assuming that the Acting Coroner is correct and Hurley gives evidence in a way that makes him appear to be telling the truth, can you see why I think that to people on the jury he will be a good witness – in spite of originally saying he fell on the left.

  12. Legal Eagle

    I can see how it can be argued either way – of course I can! – I’m a lawyer after all. That’s my job.

    What I can’t tell is what sort of a witness Hurley will be, or indeed how a jury will react to him. I don’t have enough experience of jury trials to know how they would react.

    As I’ve described in another post, I think legal training makes one see the world in a different light to normal people. I would like to be able to put aside my legal training and look at things “normally”, but I don’t think that’s entirely possible. That being said, looking at things legally is not necessarily a bad thing (legal training teaches one to be objective and forensic).

    Re your comments about judges – I have worked in the Court system, and I can confirm that many judges have a pretty good grip on reality, despite press beat-ups suggesting the contrary. The thing which impressed me when I worked in the Court system is that (whether I agreed with the ultimate decision or not) each and every judge I worked with did his or her absolute best to make a just decision, and cared deeply about the implications of the decision. It was reassuring and inspiring to know that they put such care into judgments.

    I have seen a lot of witnesses give evidence over the years, and one does get a sense of when people are telling the truth or not. It’s not a question of demeanor – someone may be very nervous, but nevertheless truthful, and someone else may be an experienced witness with a steady demeanor, but nevertheless be lying. It’s an instinctive thing, really. I think after a few years, one starts to pick up body language and other subtle signs one might not even be aware of on a superficial level.

    Have you ever tried to convince yourself that something didn’t happen, and ended up believing it? I think there are also cases witness may be lying to himself about what occurred – he believes it’s the truth, but it is clear that this can’t be true (because of other corroborating evidence).

    So, judging the truth of a witness’s evidence is a complicated business. The only way in which I could make a judgment about Hurley would be to watch him and others give evidence. As I say, it could go either way. The jury’s burden is to decide beyond reasonable doubt whether Hurley deliberately caused Mulrunji’s injuries, or whether they were accidental. It’s a heavy burden. I don’t envy them.

  13. reason

    “I can see how it can be argued either way – of course I can! – I’m a lawyer after all. That’s my job.”

    Is it a case of just arguing another way or looking at the big picture? You aren’t at work so you can speak candidly. I type that just in case you are deliberately underplaying the significance of what I said by your categorisation. In that post I was explaining that he can’t be expected to know where he fell and suggesting that someone aware of that fact couldn’t reasonably conclude that he was lying because he didn’t know where he fell. This may give insight into the decision of the experienced Criminal Lawyer tasked with determining what a reasonable jury would be capable of.

    I suspect if the Acting Coroner was mindful of the fact she wouldn’t have formed the credibility conclusion. I certainly don’t think she would argue for the sake of arguing. With respect, lawyers are used to arguing anything due to the ‘hired gun’ nature of the role. By contrast (to the Acting Coroner) Street was commissioned to do a job and everyone knew what his boss wanted. He was probably a very talented Barrister prior to joining the bench and his role is thus less clear. Nevertheless, whether or not his job allowed him to argue for the sake of arguing, I suspect he would have had an extremely privileged background and could not be expected to have expertise on the issue we have been discussing.

    Wouldn’t a better example of what you are talking about be something like me arguing that Hurley’s ‘change of story’ indicates credibility as it indicates that he originally had no idea what caused the death (no idea it was caused by injuries) and probably assumed it was alcohol poisoning so he wasn’t looking for an excuse for injuries? That argues it in the other direction.

    ”What I can’t tell is what sort of a witness Hurley will be, or indeed how a jury will react to him. I don’t have enough experience of jury trials to know how they would react.”

    Yes. It is good that experienced Criminal Lawyers make the call regarding whether or not to charge. However I am just assuming he would be a good witness because the acting coroner who I’m guessing would have worked as a magistrate and been involved in trials seemed to think so. Of course she didn’t actually think he is a good witness. It is an inference. Specifically, if but for not knowing how he fell he would appear to be a good witness, then to people who realize he can’t be expected to know how he fell he would probably appear to be a good witness. Nothing more. (Plenty of assumption conceded.) I note that everyone has their strengths and weaknesses. Assessing appearance of candor is probably a strength of the Acting Coroner while experience in scuffles is probably not.

    ”Re your comments about judges”
    Thank you for your comments. I invite any readers to confine my comments to the issue of experience and background. I definitely don’t want to suggest that judges don’t have a good grip on reality or lack care. Nevertheless I can’t help wondering if ironically your choice of words “good grip on reality” might have been analogous to the Acting Coroner’s demeanor comment and may have been taking a very broad view of “grip on reality” to encompass the concept of wide knowledge of life. This would be analogous to the use of “demeanor” when something broader was apparently meant to be communicated.

    ”… It’s not a question of demeanor … “

    Perhaps not and perhaps the Acting Coroner could have elaborated more but it is hard to explain fully “an instinctive thing” so her expression in context is reasonable. I quoted it as the only reason she seemed to say it was that she seemed to want to communicate that Hurley presented in a way that appeared truthful but she nevertheless wasn’t going to accept his evidence fully. She could have said that she can’t put her finger on it as it is an “instinctive thing” and demeanor plays a part although isn’t everything but Hurley gave evidence as if he was truthful but she wasn’t convinced because he originally said he fell on the left and later said he must have fallen on top. However that would be a little unwieldy and she was trying to explain why she didn’t accept all his evidence not vice versa so the focus was on the fall.

    ” The jury’s burden is to decide beyond reasonable doubt whether Hurley deliberately caused Mulrunji’s injuries, or whether they were accidental. It’s a heavy burden. I don’t envy them.”

    Nor I but there would seem to be tougher cases that juries have to decide. Would you concede that on the relevant issue the evidence does seem to lean in a particular direction? So much so that experts in two different government bodies decided that there was insufficient evidence to go to trial. Everything seems to slot together (often exaggeratedly). The only clear inconsistency at the relevant time is Bramwell’s kicking allegations. Of course if outside of a coronial inquiry Bramwell’s punching allegations can be modified then that would clash with the fall/injury evidence and be another inconsistency. Note however that without an assumption that Hurley could not have fallen on top there would be no reason to stretch Bramwell’s evidence in that way.

  14. Legal Eagle

    The main problem I see with the evidence is that Mulrunji’s injuries were so severe that a significant compressive force must have been applied to his body. The doctors said was remotely possible that the injury may have been caused by Hurley falling on top of Mulrunji with hard force, jabbing him in the abdomen with a knee or an elbow.

    It was only after these findings that Hurley changed his story and said he must have fallen on Mulrunji. Therein lies his credibility problem for me.

    Police are professional witnesses who often give evidence before magistrates and judges. Therefore they know how to present evidence and how to avoid questions that they do not want to answer. I think that is what the Acting Coroner was getting at when she said Hurley had a “steady demeanor”. I’ve got no idea whether or not her assessment was accurate.

    The reason I pussyfoot around is because I have watched many, many trials, and I know that it’s really hard to judge without seeing it yourself. I would see a trial and then read about it in the paper – and sometimes it seemed to me like the article was describing a totally different event! They’d leave out things I thought were important, and stress things which I thought were totally irrelevant.

    I am acutely aware in this circumstance that I am just going off “secondary sources” and the media, and I don’t have access to all of the information. Therefore I am very wary of making judgments without access to the “primary sources”. It may be that if I had seen all the witnesses and read all the evidence I would have a totally different reaction. Such pussy-footing is an irritating lawyer’s trick, I know, but I can’t help it, I was trained that way. 🙂

  15. reason

    “The main problem I see with the evidence is that Mulrunji’s injuries were so severe that a significant compressive force must have been applied to his body.”

    Problem? Would you accept that the combined mass of the two struggling men, falling together perhaps in an accelerated and less than controlled fashion through the doorway and downstairs could generate considerable force? What if one of those men and the one on top was hulking Hurley?

    I see that as consistent with Hurley’s innocence personally. Why do you see it as a problem?

    “The doctors said was remotely possible that the injury may have been caused by Hurley falling on top of Mulrunji with hard force, jabbing him in the abdomen with a knee or an elbow.”

    Are you paraphrasing:

    “Medical witnesses were asked to consider whether the application of a knee or an elbow, whilst
    Mulrunji was on the hard flat surface, either during or separate to the fall could have caused the
    mechanism of injury. This was accepted as a possible means by which the injury could have
    occurred.

    Dr Lampe noted that the reported changes in Mulrunji’s behaviour from aggressive prior to the
    fall, to passive after the fall, suggests the events surrounding the fall are crucial.”

    “Associate Professor Stephen Lynch, who is a specialist general surgeon practising in the field of
    liver transplant surgery and treatment gave evidence. He discounted any physical possibility of Mulrunji having sustained the liver injury prior to the point of being removed from the police vehicle at the back of the police station. He said Mulrunji would not have been able to struggle, as the evidence suggests, if he had blood in his abdominal cavity at that time. His injuries must have occurred at the time of the fall or afterwards. This is again noteworthy because of the evidence that after the fall, and after Sergeant Leafe had returned from opening the cell door, Mulrunji was no longer resisting and required to be dragged to the cell.”

    “Dr Ranson also said:
    “A complicated fall where the two individuals fall together from a standing position would not usually cause the liver laceration seen in this man unless during the process of the fall a small area of direct crushing pressure was applied to the front of the upper
    abdomen with the back or posterior lateral aspect of the body fixed against a hard surface………If a large person were to fall in an accelerated or uncontrolled fashion on top of an individual who was lying on their back on the ground, such that a small part
    of their body, for example a knee applied a crushing type force to the upper abdomen, it is possible that such a liver laceration might be caused.””

    Is it possible that you have misrecollected (probably) Dr Ransom’s evidence that that falls don’t normally cause that type of injury but this exact injury could happen if a knee hit? Could you have misrecollected that as only “remotely possible” that such a fall could cause the injury? Don’t worry you are not Hurley so noone assumes that your recollection is perfect. ; )

    Or were you just playing with words to make something sound a particular way because you are a lawyer? : )

    “It was only after these findings that Hurley changed his story and said he must have fallen on Mulrunji. Therein lies his credibility problem for me.”

    I don’t see why. He was there the entire time so if he is innocent it would be reasonable behaviour. Can we try a transparent hypothetical? If you fell down with someone and didn’t notice that you fell on them. They died. You had no idea why. Then you became aware that falling on top of them could explain the death what conclusion would you reach in consequence? Would you later believe and say that you didn’t fall on them? What would a reasonable human being in that situation do? If you were the subject of my hypothetical and someone described your conclusion as a “change of story” (the phrase has connotations beyond the literal) would you consider that fair?

    What would an experienced Criminal Lawyer in the DPP do? Would they be operating under the presumption of guilty until proven innocent or innocent until proven guilty? Realistically at the least Hurley can’t be guaranteed to know how he fell (although as you know I believe you can put it more strongly. “Snowballs hope” comes to mind.) He isn’t presumed to be guilty so it shouldn’t be a fatal credibility issue.

    In context the potential fact of Hurley falling on top and not realizing is strengthened by surrounding evidence as it fits like a key in a lock. Bonner said Mulrunji was first so if anyone fell on anyone it would be Hurley on Mulrunji. A few people said they fell. Steadman said it looked as if Hurley fell on Mulrunji. Hurley said Mulrunji didn’t move after the fall and he thought he was mucking around. Leafe arrived shortly afterward and needed to help Hurley drag Mulrunji into a cell as he wasn’t moving. Mulrunji died. Medical experts held that if the fall went a particular way it could explain the death. That particular way would be a knee or elbow only – something that would be less likely to be noticed during the complicated fall. In other words if Hurley fell on top in the usual sense he may have remained there and would be more likely to recall falling on top. However if he fell on top via a knee or elbow he would have ended up on the right or left and probably recalled being on the right or left rather than on top. Where is the credibility issue?

    “…I’ve got no idea whether or not her assessment was accurate…”

    Nor I but it is just about all I have. There was a description in the newspaper of Hurley that was along the lines of him being very polite and presentable (I guess when you are that big people normally cooperate without any macho stuff so he can afford to be gentlemanly). That seemed to suggest a generally good presentation. I believe that that helps. However I concede that it is all secondary as you said.

    Having said that there is no escaping the fact that Mulrunji died in the watchhouse. The only alternative explanation available requires Roy Bramwell. Even if that part of his testimony that isn’t ruled out by medical evidence is accepted completely it doesn’t work. You need to stretch it like the Acting Coroner did to fit the injuries. Would the DPP be entitled to assume that they or a reasonable jury could stretch the evidence that way in a criminal trial (cf. coronial inquiry)?

    “… I can’t help it, I was trained that way. 🙂 “

    A victim of circumstances. : )

  16. Pingback: skepticlawyer » Palm Tree Justice - Part II

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