Palm Tree Justice – Part II

I see that Sir Laurence Street has concluded that it is worth pursuing charges against Chris Hurley, the officer who arrested Palm Island man Mulrunji. Mulrunji died very soon after he was placed in custody.

For a summary of the circumstances behind this decision, see my previous post here. I think that it is a good decision. It certainly seemed from my point of view that there was enough evidence to proceed to a prosecution. Now a jury can determine for once and for all whether Sergeant Hurley is guilty of any crime.

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3 Comments

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

3 responses to “Palm Tree Justice – Part II

  1. reason

    Are you sure it is a good decision?

    I invite you to consider it further. I acknowledge that I have brought your attention to certain things in posts postdating your comment about the decision so you might have already thought about it more.

    As you essentially said previously, for there to be sufficient evidence to proceed to prosecution a call has to be made regarding whether there is sufficient evidence to establish each element of the offence and the reasonable jury properly instructed has to be considered.

    The Commonwealth DPP produced the following relating to their own analogous decisions:

    “The Prosecution Policy requires that before a prosecution is commenced or continued there is prima facie evidence of the elements of the offence and a reasonable prospect of conviction. The existence of a bare prima facie case is not enough. The prosecutor must evaluate how strong the case is likely to be when presented in court. The evaluation must take into account such matters as the availability, competence and credibility of witnesses and their likely effect on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor also should have regard to any lines of defence open to the alleged offender and any other factors that could affect the likelihood or otherwise of a conviction. The assessment may be a difficult one and there can never be an assurance that a prosecution will succeed. However the dispassionate application of the test by an experienced criminal lawyer is the best way to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds.”

    I assume it would be a reasonable description of the task of their state counterparts.

    Cutting to the chase there was a limited ‘window of opportunity’ so to speak for the death to be caused and it can probably fairly be said that there seems to be essentially two competing potential causes of the death.

    The first is hulking Hurley toppling onto Mulrunji and fatally injuring his liver. This is consistent with the belief of witness Hurley. It is also consistent with the order in which they would have fallen based on witness Bonner’s evidence. Hurley will not be criminally responsible for this potential cause of death. From the medical evidence it is a possible cause of death. Weight will be added to this evidence by Hurley’s truthful appearance when giving evidence. Weight will be added by Hurley’s evidence that he encouraged Mulrunji to get up but Mulrunji didn’t do anything and he thought Mulrunji was mucking around. This is consistent with Mulrunji’s liver being fatally injured during the fall. (It will also probably be the nail in the coffin for the falling on the left red herring previously discussed.) Weight will also be added to this evidence by the constable who will give evidence that it looked like Hurley landed on top.

    The second potential cause is broadly derived from the evidence of Roy Bramwell. He essentially said that Hurley stood up and stood over Mulrunji (that bit is undisputed) then he punched Mulrunji in the head a few times and kicked him a few times. As you have said he has some character issues that may affect his credibility. Further, Mulrunji didn’t die from being punched in the head and the medical evidence ruled out kicks to the body. The kick issue would also undermine his credibility. The Acting Coroner implicated Hurley by stretching Bramwell’s evidence to fit the cause of death. She took the view that Bramwell saw punching but had a poor view and the punching must have been to the liver area rather than head. Can the same stretch be made in court? If not then there is no evidence that can secure the conviction. If so then there is serious credibility issues.

    The DPP decision has the appearance of being sound and this view is supported by surrounding circumstances.

    The CJC made essentially the same decision. They were considering the evidence for the purpose of disciplinary proceedings rather than criminal trial but they also ruled out there being sufficient evidence (for a disciplinary tribunal) to find that Hurley caused the death.

    Likewise, a memo was published whereby Beattie contacted an experienced DPP prosecutor who considered the DPP decision and took the view that it was correct.

    Accordingly, in substance I’m suggesting that the DPP decision should be preferred. I also suggest that there are other things to consider regarding whether or not it is a good decision.

    The DPP quote above is prefaced with the following:

    “The effect of instituting criminal proceedings on an individual can be enormous. Careful consideration must be given to a matter before criminal proceedings are instituted.”

    This raises another issue regarding whether the decision to proceed is good. It isn’t a trivial matter for the individual concerned (or their family). The defendant is presently suspended from work and is facing a lengthy criminal trial.

    Likewise, each extension of the saga has a significant cost on other people involved. There were two examinations of the deceased’s body by pathologists. The coronial enquiry commenced with one Coroner and concluded with an Acting Coroner. Presumably this would have caused a delay. Rumours are rife and will flare up every time something happens. Mulrunji’s son has committed suicide and when Street was appointed the other inmate in the watchhouse committed suicide. The human tragedy continues. If Hurley is found innocent, which seems reasonably likely, you can bet there will be more protests and more problems for Mulrunji’s family.

    For these reasons I’d suggest that a jury determining for once and for all whether Sergeant Hurley is guilty of any crime isn’t just an easy hypothetical. It has severe human consequences.

    The trial has personal implications for Hurley and his family and personal implications for Mulrunji’s family. And if the trial outcome goes a certain way it will likely result in a replay of the unrest following the DPP decision.

    For these reasons I invite you to reconsider whether or not it is a good decision.

    (But I do think that DPP representatives could have refrained from some of the media comments they made for the reasons you gave in previous blogging.)

  2. Legal Eagle

    I think the distress felt by Mulrunji’s family is because of the initial lack of action in relation to his death. I think they would be more distressed if there was no trial than if the matter continues.

    I think the feeling of the indigenous community is that there’s one rule for indigenous people and another for non-indigenous people. Consider, instead, what would have happened if Mulrunji had caused injuries to Hurley, and Hurley had subsequently died? I suggest that the response of the police would be totally different.

    By the trial going ahead, of course it will cause distress to Hurley and his family. However, there could be benefits for him as well in a trial going ahead. I imagine that there is a perception in some sections of the community that he hit Mulrunji and caused his death. If he is found innocent, I’m sure Mulrunji’s family will protest. However, that’s the way our justice system works, and they have to live with that. If a jury finds that he is innocent, he can then continue his life with the knowledge that a jury of his peers has found him innocent.

  3. reason

    I think they would want a trial but I think the trial will string it out and lead to greater disappointment.

    “I think …”

    I agree.

    “By the trial going ahead, of course it will cause distress to Hurley and his family.”

    Distress that would not occur if things had gone the normal route and the DPP decision was left alone.

    “However, there could be benefits for him as well in a trial going ahead.”

    The only benefit will be a tainted victory (tainted by bad pr). Those who consider him guilty won’t change their mind. I’m sure that won’t be worth a long criminal trial.

    “I imagine that there is a perception in some sections of the community that he hit Mulrunji and caused his death.”

    I think the media consider this the only option and a healthy section of the community don’t take it any further.

    “If he is found innocent, I’m sure Mulrunji’s family will protest. However, that’s the way our justice system works, and they have to live with that.”

    That is easy to say but after about 4 years and expectations manipulated by the usual people spreading rumours when someone dies and the media I’d suggest this will be a terrible blow to them.

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