In June 2007 Queensland Police officer Snr Sergeant Chris Hurley was acquitted of charges of killing Mulrunji at the Palm Island watch house, near Townsville. The finding marked the end of years of speculation about how Mulrunji had died while in custody. His injuries were serious, and included a liver cloven in two, which caused his death.
The events surrounding the death and the long prosecution process, including two coronial investigations, are documented in Chloe Hooper’s The Tall Man (2008), which was named winner of the 2009 Victorian premier’s Literary Award for non-fiction. Hooper also won the Davitt Award for true crime, the 2009 John Button Prize, the 2009 Indie Award for non-fiction, and the 2009 Ned Kelly Award for non-fiction. The book has also been shortlisted for the 2009 Queensland Premier’s Literary Awards.
Her book has had a significant impact in the broader public sphere in Australia. But how true are the facts it contains? Was Hurley guilty, as Hooper suggests? Accusations of guilt failed the most recent test, in Queensland’s Supreme Court, but these accusations, which started with a coronial finding in September 2006, have flared on and off.
Hooper’s book clearly favours an assumption of guilt for Hurley, although this is never stated. Hooper’s sympathies lie with Mulrunji and his family and the onus of proof of innocence seems therefore to have swung back to the police’s side.
The following is a detailed analysis of the events leading up to Mulrunji’s death, prepared in cooperation with Michael Bates, a commenter on this blog.
In 1991 the Royal Commission into Deaths in Custody recommended sobering-up shelters to which a person drunk in public can be taken. This was because most Aboriginal people in police lockups are in “protective custody” after being found drunk in public. Successive governments have taken so long to implement this life or death measure in all jurisdictions that as late as July 2003 Chris Hurley pointed out to the Federal Parliamentary Standing Committee on Aboriginal and Torres Strait Islander Affairs that Palm Island lacked an alcohol diversion program and as a result police only had one option for drunk and disorderly people: the watchhouse.
It is therefore ironic that the death was the result of Hurley arresting Mulrunji and taking him to the watchhouse when he was drunk in public in November 2004. At the time of the arrest Hurley was escorting Gladys Nugent so that she could safely retrieve her belongings from Roy Bramwell's house. She was one of three women who Roy Bramwell had assaulted. Mulrunji walked past, challenged Police Liaison Officer Bengaroo as to why he helped lock up his own people, and then kept walking before turning and swearing at the police. Hurley drove up to him and arrested him on a public nuisance charge. Although some witnesses said that Mulrunji wasn’t really drunk the Coroner’s report held that Mulrunji’s blood alcohol concentration at the time of his death was 0.292. His blood alcohol concentration at the time of arrest is unknown but must have been at least as high.
Hurley dropped off Ms Nugent then transported Mulrunji to the watchhouse. He removed Mulrunji from the van and struggled to get him into the watchhouse. Mulrunji punched him in the face after getting out of the vehicle and then attempted to struggle out of Hurley’s grasp. This apparently caused Mulrunji to fall into the watchhouse and Hurley to fall with him.
Mulrunji was taken to a cell and later found dead as a result of a serious injury to his liver. Being a death in custody, the matter attracted national attention. Some naturally speculated that Hurley had beaten Mulrunji causing injuries that led to his death. By 3 December 2004 speculation appeared to gain substance when media reports revealed that a witness (Roy Bramwell) had seen Chris Hurley punch Mulrunji. An article in The Australian on 13 December 2004 had Murrandoo Yanner state that he viewed Mulrunji while preparing him for his funeral and that the head injuries looked so severe that he was unrecognizable. In response to a Minister’s suggestion that Yanner was not a medical expert he said “I’ve seen plenty of bodies and I’ve seen blokes who have had the shit kicked out of them, and I know what it was.” It wasn’t until 27 September 2006 that the Coroner's report revealed that the only visible facial injury was a small oval shaped graze in the centre of his right eyebrow and this finding was never well publicised.
On 1 March 2005 The Sydney Morning Herald reported that Patrick Bramwell claimed to have witnessed Hurley taking Mulrunji out of an adjoining cell and punching him on both sides of his body. This allegation was also rejected by the Coroner in her 2006 report with reference to video footage from the cell. The Coroner said that the video footage showed Bramwell was in the same cell and that Mulrunji wasn't taken from the cell, thus voiding his allegations. Patrick Bramwell later hung himself.
It is possible to pinpoint the time when Mulrunji’s fatal injury occurred within a very small time frame with a high degree of confidence. The medical evidence cited by the Coroner showed that the fatal injury could not have occurred before the fall as Mulrunji would have been unable to struggle after sustaining the fatal injury. Associate Professor Stephen Lynch, a specialist general surgeon specializing in liver transplant surgery, said that the injury must have occurred at the time of the fall or afterwards. It would be impossible for someone with that injury to engage in the struggle which Mulrunji put up when he was first removed from the police vehicle. Also, the Coroner advised that the video footage from the watchhouse enabled Patrick Bramwell’s allegations of assault after being locked up to be dismissed.
Therefore the fatal injury must have occurred in a period of time starting with the fall and ending when Mulrunji was filmed entering the cell. The incident occurred on a weekday morning at Palm Island watchhouse and it was not hard to find witnesses during that time. Arguably the time period can be further narrowed. Mulrunji, Chris Hurley and Roy Bramwell were only out of view of other witnesses for approximately 6 or 7 seconds after the fall according to media reports of the testimony at trial.
The Coroner considered the two possibilities. One was that Hurley's 115kg had fallen on top of Mulrunji with a knee or elbow making contact causing the fatal injury. Another was an assault involving punching as alleged by Roy Bramwell. She noted that medical evidence ruled out Bramwell’s allegation of kicking.
It was well publicized that the Coroner accepted Roy Bramwell’s evidence of punching and that she found this to be the cause of Mulrunji’s death. Bramwell had alleged that Hurley punched Mulrunji three times in the head. The Coroner's opinion redirected these blows to Mulrunji's midsection due to the nature of the fatal injury and her belief that Bramwell's view was partially obscured.
The matter was then referred to the Department of Public Prosecutions. A complaint was also made to the Criminal Misconduct Commission as police killing people in custody is obviously a breach of police ethics. This resulted in analogous investigations. The DPP had to determine whether there was sufficient evidence to launch a criminal trial and the CMC had to determine whether there was sufficient evidence to launch disciplinary proceedings.
On 14 December 2006 the Queensland Director of Public Prosecutions made a shock announcement. Her finding was that there was insufficient evidence to charge Chris Hurley. She also said that the incident was a tragic accident. On the same day the Criminal Misconduct Commission announced that no disciplinary charges would be laid.
The Queensland Government circumvented the DPP and on 4 January 2007 Sir Laurence Street was hired to review the DPP decision. Being the son of Jessie Street, famed for her advocacy of indigenous rights, his appointment was welcomed by the indigenous community. On 16 January 2007 Street visited the home of the dead man’s family to “pay our respects and express our regrets”. On 26 January Sir Laurence argued that there was sufficient evidence to prosecute and the trial commenced on 5 February with Hurley facing charges of assault and murder. The prosecution was launched by the Attorney General as the DPP refused to prosecute. This later attracted criticism from Robert Mulholland QC in The Courier Mail on 6 July 2007. Mulholland claimed that it relied on a power which was a relic from another time. This was disputed by former Attorney General Matt Foley in the same publication the next day. Foley argued that it was legitimate and the Fitzgerald Report confirmed that the Attorney General has extensive powers.
The defence was that the fatal injury was sustained in the fall with Hurley's weight hitting Mulrunji through a knee or elbow. The trial prosecutor proposed a knee drop theory whereby Bramwell executed a WWF-style knee drop on Mulrunji. No one said they saw a knee drop after the fall but the prosecution needed to account for the medical evidence which unanimously states that if Hurley landed on top of Mulrunji with a knee or elbow it would explain the fatal injuries and most other options were ruled out.
Hurley was acquitted by a jury on 20 June 2007. He subsequently appealed the coronial findings and they were overturned by District Court Judge Bob Pack on 17 December 2008. This ruling was then appealed in the Supreme Court’s Court of Appeal which presented a judgment on 16 June 2009.
The Court of Appeal judgment included the startling announcement that the medical evidence before the Coroner ruled out the alleged punching as the cause of the fatal injury. It also pointed out that the Coroner didn't report that evidence. As a result the Court considered that the Coroner’s judgment that Hurley had punched Mulrunji to death should be overturned. This was startling as the medical evidence ruled out kicking and the options prior to the trial prosecutor’s knee drop theory had always been a choice between an injury in the fall or an injury from punching.
Hurley’s adversaries in the Court of Appeal argued that only the Coroner's finding regarding punching should be set aside and a knee drop or something similar during the ‘window of opportunity’ should automatically be considered the cause of death. The basis for this was Hurley's evidence in early interviews that he didn't recall falling on top of Mulrunji. By the time of the Coroner's report he said that he figured he must have fallen on top with a knee or elbow but didn’t remember. That remains his position today. The Coroner and the prosecution took the view that Hurley would have had to remember making contact with Mulrunji at the bottom of the fall and the contact therefore must not have occurred. Thus they argued that circumstantial evidence proved that Hurley didn't fall on top of Mulrunji. (Another witness gave evidence that Hurley looked like he "landed on top of the other person".) In consequence Hurley's adversaries argued that a knee drop during the subsequent ‘window of opportunity’ must be the explanation. The Supreme Court disagreed, saying that Bramwell's evidence could be taken to rule that out.
Was Hurley guilty as Hooper suggests? The Coroner reported that medical evidence ruled out the time before the fall as the time of the fatal injury and kicking after the fall was ruled out by the medical evidence. Further, no assault occurred once Mulrunji was placed in a cell. The Supreme Court reported that the medical evidence excluded punching as a cause of fatal injury. They also pointed out that Bramwell’s evidence is inconsistent with the knee drop theory. If this is all correct the possibilities seem limited. If Hurley’s knee didn’t hit Mulrunji’s stomach and split his liver at the bottom of the fall how did Hurley do it?
We will probably never know.