The critical events of the Mulrunji case on Palm Island

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There are many people who still believe Mulrunji Doomadgee's singing of the reggae song "Who Let the Dogs Out" to senior sergeant Chris Hurley simply cut too close to the bone. Less than an hour after being placed in a cell the 36-year-old was dead - with his liver almost split in two, four broken ribs, a ruptured spleen, severe bruising to his head and a torn portal vein.

Hurley, then also 36, had been the officer in charge of police on Palm Island, Queensland for the preceding two years. Since joining the police force in 1987, he had spent most of his earlier career in other remote Aboriginal communities in the Cape York Peninsula and Gulf of Carpentaria, where in 2001 there was talk among other police in the Gulf region about his apparent lack of control over the locals, and of himself.

The announcement by Queensland's police commissioner last March, more than six years since Doomadgee's death in Palm Island prison on 19 November 2004, that the officers who investigated his death would not be disciplined was just the latest in a string of bitter disappointments for the Aboriginal community. The long struggle for justice since Doomadgee's tragic death had left many hopes hinged on the examination of the botched police investigation and subsequent internal review, when despite two prolonged inquests, and after much vacillation, Hurley walked away a free man.

The findings of the resumed second inquest delivered on 14 May 2010 still horrify thousands around Australia who followed the long-running case. The second inquest was called by Hurley himself to completely clear his name after he became the first police officer to ever be charged in relation to a death in custody in 2007, when Deputy State Coroner Christine Clements found he was responsible for Doomadgee's fatal injuries.

Clements had considered medical evidence and eye-witness accounts before handing down her detailed 35-page findings on 27 September 2006, calling Hurley's treatment of Doomadgee "callous and deficient" and his arrest "completely unjustified". At the inquest in August 2005 in Townsville, Clements heard that Doomadgee punched Hurley in the jaw as he was being removed from the police vehicle and a "scuffle" ensued. A witness, constable Kristopher Steadman, said both fell through the doorway of the police station and that it appeared Hurley landed on top of Doomadgee.

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(Image: The Tall Man - SBS)

However, another witness, local resident Penny Sibley, testified she saw Hurley retaliate by punching Doomadgee in the face, describing his mood as "wild". Evidence was also heard from key witness Roy Bramwell, who was sitting in the reception area of the prison station at the time and claimed to have witnessed Hurley attack Doomadgee. In an interview the day after Doomadgee's death, Bramwell said he saw Hurley punch him three times while shouting, "You want more, Mr Doomadgee? You want more?" Although Bramwell said a metal filing cabinet obscured Hurley's lower body, he said he could see Hurley's elbow rising and falling as he punched Doomadgee, who he said begged, "Leave me go, now. Leave me go - I'll get up and walk." Bramwell said Doomadgee was then dragged to a cell, from which Hurley returned moments later asking him if he had seen anything. When Bramwell replied no, Hurley said he was free to go.

Clements watched police station security footage which showed Doomadgee immediately after this lying on the floor of the cell, rolling slightly from side to side and crying in vain for help for almost 30 minutes, before eventually lying still as he died. 28 minutes later, another sergeant, Michael Leafe, was seen checking Doomadgee, pushing him with the toe of his boot. The video showed Hurley then entering the cell and confirming there was no breathing or pulse before sliding down the wall until he sat with his face in his hands. Neither police officer attempted resuscitation on Doomadgee.

Although exactly the same evidence was considered less than three months after Clements' decision by then Queensland Director of Public Prosecutions, Leanne Clare, she ruled on 14 December 2006 that there was not enough evidence to prosecute Hurley, setting aside Clements' findings. Despite the fact Hurley denied punching Doomadgee or falling on him, although admitting a trauma injury to Doomadgee's right eye and forehead was not there when he was arrested, Clare ruled the 74kg Doomadgee died as a result of the 115kg Hurley falling on him, declaring it a "tragic accident".

The outrage provoked by two such opposite conclusions led State Attorney General, Kerry Shine, to order a review of Clare's decision. This was conducted by former New South Wales Chief Justice, Laurence Street, resulting in manslaughter and assault charges being laid against Hurley on 5 February 2007. Hurley applied successfully to set aside the findings and was acquitted of manslaughter less than five months later at a Townsville trial. Dissatisfied with this result, he appealed to Queensland's District Court in September the following year to completely overturn Clements' finding that he had fatally injured Doomadgee, which was upheld by Townsville District Court Judge Bob Pack who on 17 December 2008 ordered a second inquest into Doomadgee's death.

Hurley again told the coroner presiding over the new inquest, Deputy State Magistrate Brian Hine, that he fell beside Doomadgee. Three medical experts gave evidence it would have required "massive force" from a likely bodily protrusion, such as a knee, to inflict the fatal injuries. They said Doomadgee's death was caused by a compression injury, being a huge weight exerted on his abdomen causing his liver to rupture, and him to slowly bleed to death.

It was put to the jury that Doomadgee must have fallen on his stomach through the door, as Hurley was behind him. However, all three medical experts confirmed the injury was from the front, compressing Doomadgee's liver onto his spine, where it severed. Hurley conceded that he "must have" come into contact with Doomadgee but said it was "a grey area" in his memory.

Hine did not admit as evidence a number of previous complaints against Hurley that had been considered by Clements in making her initial findings, because they did not directly relate to the charge of homicide. At the time of Doomadgee's death, Hurley had at least twenty prior complaints for police brutality already lodged against him, which the Queensland police tried to prevent the court from hearing.

These included allegations by three Palm Island residents, Douglas Clay, Noel Cannon and Barbara Pilot, that Hurley had previously assaulted them on the island. Clements had heard evidence from four police officers in March 2006 testifying that during Clay's arrest, Hurley had knocked him hard enough to propel him into a wall. Clay alleged that in about September 2004, after going to the police station and interrogating Hurley, he had punched him four or five times in the head and body.

Cannon alleged that after being arrested by Hurley in about July 2004 and placed in a cell, after repeated requests for a mattress Hurley came in and "grabbed [me] by the throat, and squeezed [my] throat. He then kneed [me] once in the stomach. It did not leave a bruise, it just winded me. He kept squeezing my throat. He squeezed so hard that I wet myself." Pilot, who is Doomadgee's niece, alleged Hurley once reversed a car he was driving with the result that its back wheel spun on her foot, saying that although the bone was sticking out through her skin for which she later had to receive hospital treatment, Hurley told her to get up and go inside.

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Lex Wotton (right) leaves the Brisbane Magistrates court in Brisbane on Thursday, Oct. 9, 2008. Mr Wotton is charged with allegedly inciting the November 2004 riots on Palm Island in northern Queensland.
(AAP Image/Dave Hunt)

Clements had found that in relation to Pilot's complaint a "cursory and completely unsatisfactory investigation was belatedly undertaken by detective Robinson, who dismissed the complaint as fictitious," while there was no evidence whatsoever of Clay's or Cannon's allegations having been investigated. Without considering any of the prior complaints, Hine found that while Hurley must have been responsible for Doomadgee's death, "unclear evidence" meant he could not rule on whether the force applied was deliberate. Despite the fact Hurley was the only person to come in contact with Doomadgee between his arrest and death and failed after any injury, deliberate or otherwise, to provide any medical treatment, Hine delivered an "accidental death" verdict.

Clements had strongly criticised the police investigation following Doomadgee's death, calling it "reprehensive" and accusing some of the investigating officers of being "wilfully blind". Hine similarly found the investigating officers colluded with Hurley in order to protect him, accusing Hurley of fabricating evidence and saying he "probably lied" about the circumstances of the death when he repeatedly denied he had made physical contact with Doomadgee. Hine also recommended that Queensland's Crime and Misconduct Commission (CMC) be put in charge of investigating future deaths in custody, independent of police.

The CMC conducted a two-year multimillion dollar probe into the police investigation and internal review, releasing its findings on 16 June 2010, one month following Hine's decision. Its 216-page report found the investigation was "seriously flawed" and "ran counter to the spirit of the RCIADIC recommendations". It found both the investigation and subsequent review were characterised by double standards and an unwillingness to publicly acknowledge failings on the part of police, citing detailed evidence of bias, obfuscation of evidence, protecting colleagues from blame and police acting above the law.

It noted the investigation had been compromised from the outset, with a three and a half hour period before the investigating team arrived when Hurley was in charge at the police station. After Doomadgee was found dead in his cell, which was never declared a crime scene, Townsville detective inspector Warren Webber was called, who in turn notified the police headquarters Coronial Support Unit, the Police Ethical Standards Command and the CMC, but failed to notify the State Homicide Investigation Group as stipulated in the Coroner's Court guidelines.

Webber appointed detective sergeant Darren Robinson, later described Hurley's "friend" and who had also investigated Pilot's previous complaint, and detective senior sergeant Raymond Kitching, later found to be "well disposed" to Hurley, to fly to Palm Island to investigate. Hurley later admitted to having had conversations with key witnesses before the two arrived, after which he then met them at the airport and drove them back to his home. He also admitted to being unaware of the police service's operational procedures manual's stipulation that for "police-related incidents ... members directly involved in the incident or who are witnesses to the incident should not discuss the incident amongst themselves prior to being interviewed," even stating he regarded the direction as "highly counter to human nature."

The CMC found that when Hurley was finally interviewed, he was assisted in answering. Although he admitted to having watched video footage of Doomadgee in the watch-house cell before he was interviewed, the investigating officers failed record any discussion about it, giving conflicting accounts of when it was discussed and who was present at the time. They also failed to raise any questions about the integrity of the video evidence, despite a 13-minute discrepancy between the time on the watch-house surveillance video and the actual time, reading 10.17am at the commencement of monitoring when it was actually 10.30am, which Hurley said was due to the unreliable power supply on the island.

After they interviewed key witnesses, Robinson confirmed that he and Kitching went with Hurley to his home where Robinson cooked their evening meal. They were later joined by Webber and all spent about an hour at Hurley's residence, where Robinson said they ate and drank beer together and that Leafe "may have also called in for a beer".

Hurley was allowed to continue working at the station for another week, only finally being moved off the island on 26 November after the public announcement of the autopsy findings. The CMC later found that the report accompanying Doomadgee's body when sent for autopsy, signed by Kitching, failed to mention Bramwell's allegations of assault, the pathologist thus concluding his fatal injuries were accidental. When the crowd of locals gathered outside Palm Island community council was told of the finding by then mayor, Erykah Kyle, up to 200 people rioted, burning down the local police station, adjoining courthouse and police barracks.

Two hours later approximately 80 reinforcement police officers were flown by helicopter to the island and 28 locals were arrested, almost two dozen of whom served jail sentences. Several Palm Island residents later lodged discrimination claims with the Human Rights and Equal Opportunity Commission over the controversial police probes in the two days following the riot, claiming the investigation and law enforcement between 26 and 28 November 2004 subjected them to arbitrary and unlawful interference with their privacy, family and home. They are seeking an apology from the state government and for measures to be put in place to educate and empanel Indigenous jurors for trials on the island.

In July 2005, the CMC advised the Queensland Police Service's Ethical Standards Command that it found the basis on which police assessed there was reasonable suspicion that those to be arrested were at each of the Palm Island homes, and thus the lawfulness of entering the homes, was unclear. However it did not recommend disciplinary action, as the officers who entered the homes believed they had the power to do so.

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Aboriginal and Torres Strait Islanders march on Parliament House in Brisbane, Friday, June 22, 2007. The protest was in response to the acquittal of Senior Sergeant Chris Hurley this week of manslaughter charges over the death in custody of Palm Islander Mulrunji Doomadgee in 2004.
(AAP Image/Dave Hunt)

Its findings on the police investigation, however, resulted in six police officers involved facing discipline for misconduct. While the CMC recommended disciplinary action against four of the officers, including Kitching and Robinson, it stopped short of calling for criminal prosecutions, the sanctions faced including reprimand, fines, demotion or dismissal. Its report urged the Queensland police commissioner, Bob Atkinson, to acknowledge the unacceptable conduct of the officers and to take immediate action to repair police integrity and restore public confidence in the service. Atkinson himself was also criticised, with the CMC noting he "... is responsible for the culture in which the flawed Palm Island review was produced, and hence he must be held accountable for it."

Atkinson responded the same day in a media video release, stating he had "always acknowledged that the initial investigation ... could have been handled better," adding, "But the police service has learnt a great deal. We have changed the way we do things ... We are committed to having this resolved but it's important that that be done in a considered, fair and evidence-based way. It is time to bring this matter to an end so that everyone can move on."

However, the CMC's 14-day deadline of 2 July 2010 was repeatedly pushed back by Queensland Police Union in its vow to fight any sanctions against the six officers. Further delay was caused when Kitching and Robinson applied for an injunction to prevent Atkinson deciding their fate, arguing he had been "backed into a corner" by the CMC's vow to pursue its own action if he failed to do so. His replacement, deputy police commissioner Kathy Rynders, released her 410-page response to the CMC's findings on 15 March 2011, more than eight months past the initial deadline. While acknowledging there were "failings in the initial investigation," Rynders said the evidence "simply does not support action for misconduct or official misconduct" and recommended the investigating officers receive only "managerial guidance". In turn, the CMC cited a "legal loophole" for its self-proclaimed powerlessness to challenge her decision.

With the CMC vowing to take over primary responsibility for investigating all deaths in police custody in Queensland, many understandably fear the change will be futile. Itself a government body and according to its website a self-stated partner of the police, its proposed "independent" investigations are seen by many as a procrastination of truly addressing the issue. Many believe the change in responsibility will in practice be limited, particularly in the event of a death in custody in a remote location, when the CMC would likely employ police officers to conduct investigations due to lack of staff.

A CMC communications officer, Shelley Thomas, confirmed to this writer in August 2010 that, "Because the CMC does not have regional offices, should a death in custody occur outside of the metropolitan area, it will be necessary for the assigned CMC officer to make arrangements to secure the crime scene via Queensland Police Service officers. The CMC may also request assistance from the QPS to help conduct the investigation."

Rynders' public rejection of the CMC's recommendations coming exactly one month before the twentieth anniversary of the culmination of the Royal Commission into Aboriginal Deaths in Custody was most certainly not lost on the Aboriginal community. Nor was the fact that she had publicly attended a bravery awards ceremony on 2 November 2008 in Townsville with family and colleagues of the 22 police officers who were on Palm Island during the riot. Three senior police officers received the QPS Valour Award, the highest police service award, while Rynders personally awarded medals to two of the officers whose fate she later decided, congratulating them for their "courageous and professional handling of the riots".

The ceremony was held five days before then 40-year-old father of four Lex Wotton's sentencing to six years' imprisonment by Judge Michael Shanahan in Townsville, having been found guilty by an all-white jury of inciting the riot, after a three-week trial and almost two days of deliberation. This was despite the fact that Wotton, a former locally elected community councillor and powerful spokesperson for his community and Aboriginal causes nationally, had urged calm after Hurley's acquittal in 2006, stating in a public address: "Justice has a colour and it is white. The community of Palm Island is devastated, but it must accept the verdict of the jury."

During his trial in October 2008, the Brisbane District Court was shown footage of an enraged Wotton immediately following the public announcement of Doomadgee's autopsy findings, bare-chested and with a shovel in his hand. The image was broadcast all over Australia, neglecting to explain Wotton was a plumber who had just tried to repair a damaged water pipe on the main road of the island. Video footage of the riot showed Wotton in front of the angry crowd, raising his arm in an attempt to calm them before restraining one young man trying to run towards the police, who were lined up and armed with clubs, pistols and a dog on a leash. Witnesses told the court Wotton had attempted to pacify the crowd, with one witness, Hal Walsh, testifying Wotton asked him to organise transport to safely take police to the airport and twice told youths to stop throwing rocks.

Contrary to this, detective sergeant Darren Robinson told the court that Wotton earlier approached senior officers at the station armed with two large plumbing wrenches. Robinson said a visibly angry Wotton swore at the officers and accused them of murdering Doomadgee, also claiming to have seen him smash a window at the courthouse with one of the wrenches.

After Wotton's sentencing on 7 November 2008, although no-one was injured in the riot then Queensland police union president, Cameron Pope, said that justice had been served, adding, "This was one of the most violent attacks in the history of Queensland, on the legal system and on police officers." Wotton, the only person to have spent a significant amount of time in prison over the events surrounding Doomadgee's death, was released on parole on 18 July 2010 having served a third of his six year sentence, with a full-time release date of 18 July 2014.

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Elizabeth Doomadgee, sister of Palm Island's Mulrunji Doomadgee who died in police custody in 2004, raises her arms after a prayer ceremony outside the Townsville Supreme Court, Wednesday, June 20, 2007.
(AAP Image/Dave Hunt)

There was outcry about his parole conditions, which include the stipulations he cannot speak to the media and cannot attend public meetings on Palm Island without prior approval. Although he neither drinks nor gambles, Wotton was also prohibited from attending any premises where gambling is conducted, a measure many believe serves only to further isolate him from his community, where gambling is a popular past-time and rallies a regular occurrence. His legal team, Levitt Robinson solicitors in New South Wales, are appealing the conditions on the grounds they are unconstitutional and infringe the International Covenant on Civil and Political Rights, which Australia has ratified.

However, spokesman for the Department of Corrective Services, Ross McSwain, said after Wotton's release that his parole conditions were similar to those handed out to most prisoners and that there was "nothing unusual about the no media access condition on a parole order." When contacted by this writer for further explanation, the Queensland Department of Corrective Services declined to respond.

Professor on Indigenous policy and Townsville Indigenous Human Rights Committee chair, Gracelyn Smallwood, criticised the ban. "If Lex was a non-Indigenous man we don't believe he'd have been muzzled. He's very articulate, which is why he's been gagged for four years. They keep saying that the same conditions apply to all prisoners on parole in Queensland. Not so. The principal of the Belgian Gardens State School here in Townsville was found with 2,000 pornographic child images. He was stood down by Queensland Education but then they let him go on holiday to Europe with his wife and children before he was sentenced. They won't even let Lex talk to the media. It's one justice for whites and another for black people."

Smallwood criticised the justice system as being "totally against Aboriginal Australians", adding, "Mulrunji's is not the only case. There's quite a substantial amount of cases. It would never be tolerated in any other country. Whilst the PM can talk about reconciliation, it's basically just rhetoric when these types of injustices are continuing." In an interview filmed in Townsville in 2005 while Wotton was awaiting trial, he told of his own view to French anthropologist Barbara Glowczewski: "What do we want out of reconciliation? All I want is just live under a law, and that law protects all and is fair to all, it's pretty simple. I don't want to be treated as an Aboriginal person. I want to be treated as a human being. And I think that many people feel the same way, even if we are not saying it all at the same time ... We want to live in peace, knowing that there is protection out there, for each and every one of us."

The repercussions of the complete dearth of such protection are evident in the Palm Island community. The Doomadgee family received $370,000 in damages in a civil settlement last year, a pittance for a family who have suffered such profound loss, grief and trauma. Doomadgee's mother, Doris, died of cancer just two weeks after her son's death, while the long-running debacle over his death claimed several other lives since his own, including his only child, Eric, a young boxer who was just 15 when his father died. He hanged himself on 31 July 2006, nineteen months after his father's death.

Less than six months later, on 15 January 2007, 24-year-old Patrick Bramwell, whose arrest Doomadgee was arrested for protesting and who shared his cell as he died, was found hanged from a tree on Palm Island, just one month after Hurley's acquittal by Clare based on the tenuous claim he did not know how Doomadgee sustained his fatal injuries. In a media interview in September 2006, Bramwell had vowed to fight for justice. He is believed to have been under police pressure not to testify during Street's review, with Palm Island residents confirming he was picked up by a police car on the night he died and taken for a ride before returning home. He had twice tried to commit suicide two years earlier after two retractions of his statements.

Hurley, meanwhile, continues to work as a senior police officer with the Queensland service in popular holiday destination the Gold Coast, having been on fully paid leave while awaiting trial and often being promoted to the rank of acting inspector when filling in for senior colleagues. His legal bills were all covered by the Queensland Police Union, while he also received a $102,955 compensation payout less than three months after Doomadgee's death for property he claimed to have lost in fires during the riot. The CMC canvassed possible fraud charges against him after it was found he valued the contents of his police residence at just $34,419 with insurers, but is understood to have written to the parties involved in May 2011 stating that no criminal or disciplinary charges were warranted, although the reason for the discrepancy in claims was never revealed.

With a large amount of other secret evidence still suppressed by two strict non-publication orders issued by both inquests, many believe there is an ongoing cover-up of an endemic problem. Rynders' recent decision not to discipline any of the investigating officers, despite incontrovertible evidence of misconduct, has led many to blame a culture of impunity in the police force. CMC chairman, Martin Moynihan, described the decision as "almost incomprehensible", while Palm Island mayor, Alf Lacey, said the police service had "blood on its hands".

Hurley was the first person to ever be charged over a death in custody in Australia, before he was promptly exonerated by Clare. Despite her controversial decision, Clare was awarded a lifetime post as a judge in March 2008. Her promotion into the judiciary earned her a pay rise, immunity from being sacked and ensured generous superannuation on retirement.

With no police officer charged or even disciplined over the events surrounding Doomadgee's death, Queensland Police Union has submitted a claim to the government for reimbursement of approximately $1m in legal fees it incurred during the various coronial and court cases.

It's just one more bitter pill to swallow for those who viewed the Doomadgee's death as having presented the best possibility for justice over an Aboriginal death in custody - something many now believe those in power will, regardless of the circumstances, go to any lengths to prevent.