Report in Response to the ‘CMC Review of the Queensland ... · Report in Response to the ‘CMC...

Report in Response to the ‘CMC Review of the Queensland Police Service’s Palm Island

Review’

QUEENSLAND POLICE SERVICE

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CONTENTS

INTRODUCTION 1 Preliminary Observations 2

The Incomplete QPS Investigation 8 Conflicting views 9 Legislation 9 Jurisdictions and their Differing Functions 10 Purposes of Discipline 11 The Status of Recommendations 12 Standard of Proof in Disciplinary Proceedings 13 Determining the Category of Conduct 14 ‘Organisational issues – implications for the QPS’ 17 Wider Failings in the Investigation 19

Public Interest Considerations 21

PARTICULARS OF ALLEGATIONS AGAINST OFFICERS INVOLVED 26 Preliminary Matters 26

The RCIADIC 26 Recording of Suspects 28 The IRT Review Purpose 30 Commissioner’s Instructions 31

Detective Senior Sergeant Raymond Kitching and Detective Inspector Warren Webber 32

Allegation 1: Officers Serving on Palm Island Involved in Investigation 32 Allegation 2: Hurley Transporting Investigators 56 Allegation 3: Dinner at Hurley’s Residence 82 Allegation 4: Discussions between Witnesses 97 Allegation 5: Off the Record Discussions between Webber, Williams and Hurley 115 Allegation 7: The Form 1 127 Allegation 8: Lack of Support to Indigenous Witnesses 161 Allegation 14: Failures in the Questioning of Senior Sergeant Hurley 174 Allegation 15: Issues Relating to Roy Bramwell 194 Allegation 16: Failure to Pursue Other Lines of Questioning 197

Detective Inspector Warren Webber 203 Allegation 6: Lack of Vigour in Questioning the PLO 203 Allegation 9: Notification of the Deceased’s Family 227

Inspector Mark Williams 242 Allegation 1: Officers Serving on Palm Island Involved in Investigation 244

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Allegation 2: Hurley Transporting Investigators 246 Allegation 4: Discussions between Witnesses 259 Allegation 5: Off the Record Discussions between Webber, Williams and Hurley 264 Allegation 6: Lack of Vigour in Questioning the PLO 272 Allegation 7: The Form 1 286 Allegation 8: Lack of Support to Indigenous Witnesses 293 Allegation 14: Failures in the Questioning of Hurley and – 305 Allegation 16: Failure to Pursue Other Lines of Questioning 305

(Former) Detective Sergeant Darren Robinson 305 Allegation 1: Officers Serving on Palm Island Involved in Investigation 309 Allegation 3: Dinner at Hurley’s Residence 314 Allegation 8: Lack of Support to Indigenous Witnesses 320

Investigation Review Team (the IRT) 325 Allegations Made Against the Members of the IRT 325 Additional Allegations 402 Conclusion 405

APPENDIX 1 Copies of Correspondence between the QPS and CMC 1

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INTRODUCTION

1. This matter has its origins from the tragic passing of an Indigenous man in the Palm

Island Watchhouse on 19 November 2004, some six years ago. I respectfully refer to

the deceased by his tribal name Mulrunji. The incident has endured intense scrutiny. It

has directly resulted in three Coronial inquests, appeals before the District Court and

Court of Appeal, and a criminal trial in the Supreme Court. It has also incidentally given

rise to considerations by a number of bodies including the Queensland Police Service

(QPS) and the Crime and Misconduct Commission (CMC). In addition, the death itself

and the events surrounding the death have been the subject of intense public debate

and media reporting. My considerations arise within the scope of issues which are

incidental to the death of Mulrunji.

2. The Acting State Coroner delivered her findings at the completion of an inquest in

2006.1 This was the second inquest; the first was abandoned for reasons that are not

presently relevant. The findings of the Acting State Coroner were critical of, amongst

other things, aspects of the investigation of Mulrunji’s death. The Commissioner

initiated a review of the findings. He directed the formation of what became the

Investigation Review Team (the IRT).2 The IRT prepared a report (the IRT Report)

which the Commissioner forwarded to the CMC.3 The CMC subsequently published a

report titled ‘CMC Review of the Queensland Police Service’s Palm Island Review’

dated June 2010 (the CMC Review). The CMC Review was critical of the IRT Report

and the IRT’s recommendations. The CMC Review made its own recommendations

with regards to the alleged conduct of six officers. Four of the officers, namely

Detective Inspector Webber, Detective Senior Sergeant Kitching, (former) Detective

Sergeant Robinson and Inspector Williams, were involved in the initial investigation of

Mulrunji’s death. The remaining two officers, namely Acting Superintendent and

Inspector were members of the IRT and were primarily responsible for the

preparation of the IRT Report. In essence, the CMC Review recommended that, based

on the evidence, consideration be given to commencing disciplinary action against all

six officers. I have been appointed as the Prescribed Officer with the responsibility of

determining any disciplinary proceedings against these officers.4

1 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006) 2 Memo from Commissioner to Deputy Chief Executive (Operations), Director, Office of the Commissioner and Assistant Commissioner, Ethical Standards Command, 19 December 2006. 3 Letter of Commissioner R Atkinson, Queensland Police Service to Mr Robert Needham, Chair, Crime and Misconduct Commission, 21 November 2008. 4 See Letter of Commissioner R Atkinson, Queensland Police Service to The Honourable Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission, 26 August 2010; Letter from Acting Director Mark Docwra, Crime and Misconduct Commission to Commissioner Atkinson, Queensland Police Service, 10 September 2010.

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3. It is my duty to articulate my reasons, in accordance with my prescribed responsibility,

whether any identified officer should face disciplinary proceedings, and if so, to hear

those matters. I expect my decision will attract significant public interest and continued

scrutiny. There have been a variety of views expressed in different forums about

diverse aspects of this matter. They are united only by their discord.5 There will be

views that are contrary to my determination of these allegations; contrary opinion is a

common incident of decision making.

4. Regrettably, my role in this process is unlikely to bring closure to the relatives of

Mulrunji, the people of Palm Island, or the wider Queensland community. Given the

scope of the CMC Review, the recommendations preclude my authority to consider the

conduct of a number of officers who were not subject to the CMC Review

recommendations. I acknowledge some of those officers are still subject of CMC

investigations.

5. I have been tasked to make an independent determination of the allegations against

the six abovementioned officers in my duty as Prescribed Officer. This duty is

delineated by legislative and common law requirements. I acknowledge that significant

responsibility is entrusted to the Prescribed Officer in this process.6 Six years have

passed since this tragedy and the community is entitled to see these proceedings

concluded.

6. I have made my determinations with respect to the allegations contained in the CMC

Review. In accordance with my responsibility, I provide my reasons with respect to

each of the six subject officers. As stated, I have undertaken this process as Prescribed

Officer ‘authorised by the regulations to take disciplinary action in the circumstances of

any case in question’.7

Preliminary Observations

7. Before I provide my reasons, I make a number of preliminary observations. It is

unnecessary to duplicate a chronology of events leading to my appointment; this is

adequately set out in the CMC Review.8

5 Cf, eg, the view of the Director of Public Prosecutions that the death was a ‘terrible accident’ and the decision of the Attorney-General to commence proceedings for manslaughter. See Office of the Director of Public Prosecutions, ‘Hurley Not to Face Criminal Charges’ (Media Release, 14 December 2006);The Honourable Kerry Shine, Attorney-General and Minister for Justice, Report of the Attorney-General to the Legislative Assembly made pursuant to Section 11 of the Attorney-General Act 1999, 18 July 2007 . 6 See Aldrich v Ross [2001] 2 Qd R 235; Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23; and Conder v Baulch & Anor [2008] QSC 110. 7 Section 7.4 Police Service Administration Act 1990, and in particular, section 4.8(3) Police Service Administration Act 1990. 8 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xi-xii.

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8. On 9 September 2010, the CMC supplied me with a compact disc containing a number

of documents. This disc contained relevant material for my consideration as Prescribed

Officer. I quickly formed the view that other material relevant to my considerations was

not available. On 27 September 2010, I wrote to Mr Docwra, Acting Director, Integrity

Services, CMC. 9 I highlighted the previous requests for material made by the

Commissioner prior to my appointment as Prescribed Officer. I suggested that some of

the evidence supplied to me was unsatisfactory, and I identified additional material that

I believed should have been provided. I also requested the CMC ‘exhaustively identify

all the material relied upon to support each allegation’. 10 Initially, I received no

response. On 11 October 2010, I requested the Chairperson, CMC, to directly

intervene and ensure a response was provided to my letter of 27 September 2010.11 I

expressed my view that ‘not all the material was forwarded for my independent

consideration of the evidence’.

9. I subsequently received a response on 15 October 2010 from Ms McFarlane, Acting

Director, Integrity Services, CMC.12 Accompanying that response was a table that set

out the documents I had requested, the extent of access that would be granted, and the

reasons why I was denied access where that decision had been made. Illustrative of

the basis for denying access were the comments in relation to the first and last

documents listed in my request. The first document listed was the transcript of the

Hurley manslaughter trial. I was denied access on the basis that it was

[n]ot relevant to CMC Review conclusions and recommendations. Having

regard to the principle of cooperation and making optimal use of resources

any consideration of this material is considered to be an inefficient use of

resources.

Similary, my request for ‘[a]ny material relevant to the six subject officers capable of

consideration by the Prescribed Officer’ was denied on the same basis.

10. On 19 October 2010, I responded to Ms McFarlane and articulated my concerns that I

was not in receipt of all relevant material. Amongst my concerns, I identified errors in

the transcripts that had been provided to me and inconsistencies between those

transcripts and the CMC Review.13

9 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Acting Director Mark Docwra, Crime and Misconduct Commission, 27 September 2010. 10 Ibid 3. 11 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Chairperson Martin Moynihan AO QC, Crime and Misconduct Commission, 11 October 2010. 12 Letter from Acting Director Dianne McFarlane, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 15 October 2010. 13 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Acting Director Dianne McFarlane, Crime and Misconduct Commission, 19 October 2010.

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11. Ms McFarlane responded on 29 October 201014 acknowledging that while ‘there may

be errors in the interview transcripts, [the CMC] consider the importance of the

interviews relates to questioning practices and questions which were not asked’.15 With

respect to the inconsistencies between transcripts provided to me and the CMC

Review, I was advised:

Regrettably we incorrectly linked to the index a transcript of interview with

Senior Sergeant Hurley which had not been verified by Senior Sergeant

Kitching.16

12. With respect to my request for material I was advised:

In the absence of cogent grounds demonstrating relevance we do not intend

to provide you with material which was not relied upon in making the CMC

Review recommendations against the nominated officers and which would

unnecessarily delay your timely consideration of the relevant matters we

agree need to be completed as soon as possible.17

13. In my letter of 1 November 2010 I restated an earlier request to be provided with

particulars of the allegations. 18 I emphasised my role as the Prescribed Officer. I

continued to source all material and I raised my concerns with respect to the CMC

determining the relevance of material and its accuracy. It is difficult to demonstrate

relevance when access to the material is denied.19 Although the parliament intends

that the CMC should cooperate with the QPS,20 I have no power to compel the CMC to

release documents to me.21 I made a further request.22

14. The Chairperson, CMC, responded directly to my last request. He said, in part:

In the public interest we need to advance our mutual desire to resolve these

matters as soon as possible.

You have asked in your letter of 1 November that if the CMC believes it has

exhaustively identified all the specific evidence it says supports the

14 Letter from Acting Director Dianne McFarlane, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 29 October 2010. 15 Ibid 2. 16 Ibid. 17 Ibid 3. 18 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Acting Director Dianne McFarlane, Crime and Misconduct Commission, 1 November 2010. 19 Cf R v Spizzirri [2000] 2 Qd R 686, 692-3. 20 Crime and Misconduct Act 2001 s 34. 21 Cf ibid, s 49(3). Despite assertions to the contrary in the Supreme Court, the CMC denies that the CMC Review is a report under s 49. 22 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Acting Director Dianne McFarlane, Crime and Misconduct Commission, 1 November 2010.

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allegations, then to advise you plainly of this belief. The CMC has already

made its position in this regard clear. I, nonetheless, re-state the CMC’s

position, but will refrain from canvassing again all the points previously made

in our letters to you which support that position.

In Chapter 13 at page 162, of the report of the CMC Review of the QPS Palm

Island Review, the CMC clearly states that the evidence relied upon to

support its views is detailed in Chapters 9, 10, 11 and 12 of the Review

Report.

I repeat the CMC’s previous advice to you that it did not rely upon all the

material referred to in the Review Report at page xv and listed in Appendix 1

in making its recommendations. I understand that you have requested some

material referred to in the list in Appendix 1 which was not relied upon by the

CMC. It has not been provided to you as it is irrelevant.

….

In forming an opinion about whether any of the subject officers should be

disciplined on any ground referred to in regulation 9 of the Police Service

(Discipline) Regulations 1990, you therefore are to consider only the material

gathered by the IRT investigation and the material relied upon by the CMC in

making its recommendations concerning the allegations involving those

subject officers.

In your independent consideration you are not limited to those specific pieces

of evidence in the material referenced by the IRT or in footnotes in the CMC

Report, you are obliged to consider all the contents of all the material relied

upon by the IRT and by the CMC.

….

In summary, the CMC has exhaustively identified in the CMC Review Report

and the Index all of the material that supports the recommendations

contained in the CMC Report. You have all of this material in your possession.

There is, in the CMC’s view, no other material that you can require from the

CMC that is relevant to your consideration as a Prescribed Officer.23

23 Letter of The Honourable Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010 (emphasis added).

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15. I was disappointed when the CMC concluded that it was responsible for determining

what evidence was relevant to my considerations. It dictated that I was ‘to consider only

the material gathered by the IRT investigation and the material relied upon by the CMC

in making its recommendations concerning the allegations involving those subject

officers’.24 I respectfully disagree. My responsibility as the Prescribed Officer requires

that I form an independent view of the matters under consideration.25 I must identify

evidence that is both inculpatory and exculpatory. In the event of disciplinary

proceedings, I must be confident that I have identified all of the evidence including ‘the

evidence which [may be needed] to rebut the allegations … or to make a plea in

mitigation of penalty’.26

16. The correspondence of 12 November 2010 stated that it ‘seems that the Commissioner

determined that it was unnecessary to conduct any additional inquiries to gather further

material in relation to the allegations against the subject officers before doing so’. In

fact, the material was not provided to the Commissioner to make a determination, nor,

it seems, was he invited to re-consider the outcome of the IRT investigation. Rather,

the CMC Review stated that ‘in the CMC’s view, in all the circumstances, any further

investigation of the matter was unlikely to significantly change the outcome’.27 The

material was provided to me by the CMC on 9 September 2010 and I was advised that

I was ‘to consider only the material gathered by the IRT investigation and the material

relied upon by the CMC in making its recommendations concerning the allegations

involving those subject officers’.

17. In accordance with my responsibilities as a decision maker, I hold the view that it was a

matter for me to assess the evidence based upon all available material and determine

what to accept as relevant, or reject as being irrelevant. In the Misconduct Tribunal

decision of Crime and Misconduct Commission and Conder, Senior Member Freeburn

SC stated ‘this tribunal should act on as complete evidence as possible’.28 In order to

gain a full appreciation of the circumstances and the entire scope of the conduct, I

considered it was proper that I carefully consider as complete evidence as possible.

This included the analysis of witnesses and their versions, wherever given. I also

wanted to explore the conduct of the officers and witnesses in other contexts.

18. To fully appreciate the conduct of the officers I sourced evidence as I was able,

including some of the evidence given before the State Coroner during the initial

24 Letter of The Honourable Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010. 25 See, eg, Crime and Misconduct Commission and Conder (Unreported, Misconduct Tribunal of Queensland, Senior Member Freeburn SC, 4 December 2008). 26 Meehan v Cunningham District Bowls Association [2005] QSC 156 (10 June 2005), [41]. 27 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 13. 28 (Unreported, Misconduct Tribunal of Queensland, Senior Member Freeburn SC, 4 December 2008).

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inquest, the subsequent inquests before the Acting State Coroner and the Deputy Chief

Magistrate, and the subsequent criminal trial of Hurley. I also considered the impact of

any alleged failings by the investigators on the conduct of those proceedings. In my

view, it was necessary to gain a broad understanding of the operational activities of the

officers during the initial police investigation, the subsequent investigation by the CMC

and the review conducted by the IRT. Having sourced this material, I am confident I

have broadened the initial scope of my considerations, thereby exposing any

aggravating circumstance, any mischief, and not just the specifics of certain procedural

failings in an operational environment. To gain a true appreciation of the allegations, it

is necessary to consider the circumstances of the incident and the subsequent

investigations from a holistic perspective.

19. My request for the CMC to particularise its allegations met with no response. The

provision of particulars is a necessary element of natural justice. An accused person,

including a person accused with respect to disciplinary matters, is entitled to know ‘the

specific offence which is being alleged’ against them.29 A charge may not identify the

specific act or omission upon which it is founded. Particulars supplement the detail

provided in the charge. They ensure a person accused of misconduct knows with

reasonable particularity how they are alleged to have broken the law.30 I invited the

CMC to ‘particularise all of the material it says supports each of the

recommendations’.31 I was not provided with particulars of any specific charge against

the officers named in the CMC Review.

20. It would have been instructive to assess the alleged failings of the initial police

investigation with reference to the comprehensive investigation later conducted by the

CMC. The report was not in the material I was allowed to access. I can only assume

that, given there were no specific allegations within the CMC Review relating to the

serious flaws – other than the issues of ‘special interest’, perceived conflict of interest

and some questions not followed up – the initial investigation which encompassed a

relatively short period was both competent and fair. Given the serious nature of the

allegations, the state of the evidence, the purpose of discipline and the parties’ right to

review my decision, I expressed my concerns and sought cooperation and advice from

the CMC. I believe my continued requests for assistance were reasonable.

29 Johnson v Miller (1937) 59 CLR 467, 497; Meehan v Cunningham District Bowls Association [2005] QSC 156 (10 June 2005); Green v Nanango Bowls Club Inc [2002] QSC 201 (17 July 2002). 30 Pointon v Cox (1926) 136 LT 506, 510. 31 Letter from Deputy Commissioner Kathy Rynders, Queensland Police Service to Acting Director Dianne McFarlane, Crime and Misconduct Commission, 19 October 2010.

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The Incomplete QPS Investigation

21. In direct prelude to these views and recommendations, the CMC Review states under

the title ‘The initial QPS investigation and the conduct of the officers involved’:

In the CMC’s view the investigation into the death of Mulrunji was seriously

flawed, its integrity gravely compromised in the eyes of the very community it

was meant to serve. The way in which the investigation was conducted

destroyed the Palm Island community’s confidence that there would be an

impartial investigation of the death.

There is evidence to suggest that the investigation was conducted in a

manner that paid no heed to QPS’ own policies and procedures, let alone its

Code of Conduct, and ran counter to the spirit of the RCIADIC

recommendations.

The investigation failed the people of Palm Island, the broader Indigenous

community, and the public generally. Furthermore, it called into question the

reputation of the Service and damaged public confidence in the integrity of

the Queensland Police Service and its members.

In the CMC’s view the evidence is insufficient to support consideration of any

criminal prosecution proceedings. It is noted that neither Coroner has

referred any information to the Director of Public Prosecutions for

consideration of criminal proceedings.

However, contrary to the view of the QPS expressed in the Palm Island

Review, the CMC considers the conduct of the officers involved in the initial

QPS investigation serious enough to warrant consideration of disciplinary

proceedings.

Consideration of disciplinary proceedings against officers involved

In considering the conduct of the individual officers and whether it warrants

consideration of any disciplinary action and/or management action, the CMC

has taken into account the obligations and requirements of each officer under

the QPS Code of Conduct and the OPM; each officer’s experience in the

QPS; the evidence of the allegations and the officers’ continuing attitude.32

32 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxiv (emphasis added).

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22. Presumably, the suggestion that the ‘investigation into the death of Mulrunji was

seriously flawed’ refers only to that part of the investigation conducted by Webber,

Kitching, Williams and Robinson. As an aside, I note that Williams was part of the

investigation team assembled by the CMC which the Acting State Coroner suggested

‘proceeded thoroughly, competently and impartially’.33 In any event, the CMC assumed

responsibility for the investigation on 24 November 2004. The QPS investigation was

not completed by the initial investigators. The evidence shows the actual investigative

inquiries conducted by the initial investigators occurred within a 48 hour timeframe, with

the exception of the later attendance at the autopsy. Documents produced as a result

of these preliminary investigations were provided to CMC officers immediately upon

request. I also note that it seems no additional evidence of importance was uncovered

by the CMC investigation. With the exception of Steadman, no new witnesses of

substance were identified.

Conflicting views

23. The CMC and QPS regularly liaise to consider disciplinary matters in accordance with

legislative requirements. If the view of either organisation suggests an officer is liable to

disciplinary proceedings and the sanction, if proven, may include dismissal, officers are

inevitably suspended or stood down from duty. Requests of this nature have been

made where the CMC has assumed responsibility for an investigation (eg Operation

Capri) or cooperatively investigated with the QPS (eg Operation Foxtrot Distinct).

These operations are described in the CMC publication titled ‘Dangerous Liaisons’.34

The CMC did not request that the QPS stand down or suspend any one of these six

officers named in the CMC Review. I have considered this decision as part of my

characterisation of the alleged breaches. I note that, with the exception of Robinson

who medically retired, the officers named in the CMC Review have continued in their

respective roles. This has permitted me to consider these officers’ ‘continuing

attitude’.35

Legislation

24. I have considered a number of legislative provisions in the context of my role as the

Prescribed Officer. This has included relevant provisions under the Coroners Act 2003,

Police Service Administration Act 1990 and associated Regulations, and the Crime and

33 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 11. Williams, and some other members of the original CMC investigation team, were present when the riots commenced on Palm Island which compromised their continued involvement. 34 Crime and Misconduct Commission, ‘Dangerous liaisons: a report arising from a CMC investigation into allegations of police misconduct (Operation Capri)’, 2009. 35 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxiv.

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Misconduct Act 2001. Where necessary, I have considered the legislative provisions as

they stood at 19 November 2004.

Jurisdictions and their Differing Functions

25. As noted earlier, the death of Mulrunji has received intense scrutiny. Various aspects

have been considered in a variety of fora. Coronial and criminal proceedings have been

concluded and other proceedings are pending. Lamentably, despite undertaking my

duty to determine the conduct of these six officers, the reality is my decision does not

finalise many issues.

26. The material that I have relied upon in determining this matter contains

recommendations made pursuant to the Coroners Act 2003 and the Crime and

Misconduct Act 2001. The legislative provisions that authorise these recommendations

serve disparate purposes.

27. My role differs to the role of decision makers acting in accordance with the provisions of

the Coroners Act 2003 and the Crime and Misconduct Act 2001. A Coroner has a wide

power to comment on matters related to a death.36 Similarly, the CMC has wide powers

to make reports. 37 Differing standards of proof also apply to different tribunals. A

Coroner need only ‘reasonably suspect’ a person has committed an offence before

referring a matter to the Office of the Director of Public Prosecutions or a relevant chief

executive of a department in the case of non-indictable offences. As the CMC Review

has noted:

In the CMC’s view the evidence is insufficient to support consideration of any

criminal prosecution proceedings. It is noted that neither Coroner has

referred any information to the Director of Public Prosecutions for

consideration of criminal proceedings.38

28. I note that neither the Coroner nor the CMC reported any information to the

Commissioner regarding official misconduct or police misconduct with respect to

Webber, Kitching, Williams and Robinson. Having said that, I acknowledge the

comments made by the Coroners, and I will later address them.

29. The relevant standards of proof in criminal, coronial and disciplinary proceedings are

also disparate. Differing procedural requirements allow me to consider material that

36 Coroners Act 2003 s 46. 37 Crime and Misconduct Act 2001 pt 6. 38 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxiv.

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might not be admissible in other jurisdictions. 39 The standard of proof required in

disciplinary proceedings is one of ‘reasonable satisfaction’.40

Purposes of Discipline

30. The CMC opined that the ‘over-riding concern [of the current process] is to maintain

proper standards of conduct of members of the QPS and ensure that the public can

have confidence in the QPS’.41 This is the essence of the disciplinary process.

31. In Police Service Board v Morris, Brennan J stated:

The effectiveness of the police in protecting the community rests heavily

upon the community’s confidence in the integrity of the members of the police

force, upon their assiduous performance of duty and upon the judicious

exercise of their powers. Internal disciplinary authority over members of the

police force is a means – the primary and usual means – of ensuring that

individual police officers do not jeopardize public confidence by their conduct,

nor neglect the performance of their police duty, nor abuse their powers. The

purpose of police discipline is the maintenance of public confidence in the

police force, of the self-esteem of police officers and of efficiency.42

32. In Re Bowen, Demack J summarised the purposes for which disciplinary proceedings

are conducted:

The purpose of proceedings taken by a misconduct tribunal in respect of

official misconduct by a member of the police service is:

1. To protect the public;

2. To protect the police service by –

(a) maintaining public confidence in the service;

(b) maintaining legislative confidence in the service so that

necessary powers are not curtailed because they are

being abused;

39 Wednesbury Corporation v Minister of Housing and Local Government (No 2) [1966] 2 QB 275. 40 The standard of proof which I must apply is discussed further below. 41 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxiii. 42 (1985) 156 CLR 397, 411-12.

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(c) maintaining confidence within the service that members

are performing their duties with integrity.43

33. These principles have been subsequently incorporated into the QPS Human Resource

Management Manual (HRMM). In essence, the purpose of discipline is to:

• maintain public confidence in the Queensland Police Service (the

Service);

• maintain the self esteem of members of the Service;

• maintain confidence in the ability of the Service to fulfil its statutory

functions;

• maintain proper standards of conduct for members of the Service (by

specific and general deterrence principles);

• maintain the efficiency of the Service; and

• protect the reputation of the Service.44

The Status of Recommendations

34. Within the material, there are a number of recommendations made pursuant to

legislative requirements. I acknowledge the observations made under those respective

jurisdictions. However, I am bound to comply with legislative and common law

requirements to determine the conduct pursuant to my duty as the Prescribed Officer.

In fulfilling my obligations, I am required to determine the allegations by reference to

the evidence as contained within the material, and not be influenced by judgements,

assessments or recommendations of others, including those of the IRT and the CMC.45

Notwithstanding, I remain cognisant of their various views and recommendations.

35. Accordingly, I make my determinations based solely upon the evidence before me, as

contained within the material. I acknowledge my decision whether to commence

disciplinary proceedings for misconduct against Webber, Kitching, Robinson and

Williams, and disciplinary proceedings against the members of the IRT, will be the

subject of extensive scrutiny and generate alternate views and comments from others.

43 [1996] 2 Qd R 8, 10. 44 HRMM ch 18.1.1. 45 Crime and Misconduct Commission and Conder (Unreported, Misconduct Tribunal of Queensland, Senior Member Freeburn SC, 4 December 2008).

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Standard of Proof in Disciplinary Proceedings

36. The standard of proof required for finding a disciplinary matter substantiated is one of

‘reasonable satisfaction’. In Briginshaw v Briginshaw, Dixon J stated:

The truth is that, when the law requires the proof of any fact, the tribunal must

feel an actual persuasion of its occurrence or existence before it can be

found. It cannot be found as a result of a mere mechanical comparison of

probabilities independently of any belief in its reality. No doubt an opinion that

a state of facts exists may be held according to indefinite gradations of

certainty; and this has led to attempts to define exactly the certainty required

by the law for various purposes. Fortunately, however, at common law no

third standard of persuasion was definitely developed. Except upon criminal

issues to be proved by the prosecution, it is enough that the affirmative of an

allegation is made out to the reasonable satisfaction of the tribunal. But

reasonable satisfaction is not a state of mind that is attained or established

independently of the nature and consequence of the fact or facts to be

proved.

The seriousness of an allegation made, the inherent unlikelihood of an

occurrence of a given description, or the gravity of the consequences flowing

from a particular finding are considerations which must affect the answer to

the question whether the issue has been proved to the reasonable

satisfaction of the tribunal. In such matters "reasonable satisfaction" should

not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Everyone must feel that, when, for instance, the issue is on which of two

dates an admitted occurrence took place, a satisfactory conclusion may be

reached on materials of a kind that would not satisfy any sound and prudent

judgment if the question was whether some act had been done involving

grave moral delinquency… This does not mean that some standard of

persuasion is fixed intermediate between the satisfaction beyond reasonable

doubt required upon a criminal inquest and the reasonable satisfaction which

in a civil issue may, not must, be based on a preponderance of probability. It

means that the nature of the issue necessarily affects the process by which

reasonable satisfaction is attained. When, in a civil proceeding, a question

arises whether a crime has been committed, the standard of persuasion is,

according to the better opinion, the same as upon other civil issues… But,

consistently with this opinion, weight is given to the presumption of innocence

and exactness of proof is expected.46

46 (1938) 60 CLR 336, 361-63 (citations omitted).

14

37. There is a clear distinction between criminal and disciplinary matters with regard to

standards of proof. In Rejfek v McElroy, the Court made the following observation:

But the standard of proof to be applied in a case and the relationship

between the degree of persuasion of the mind according to the balance of

probabilities and the gravity or otherwise of the fact of whose existence the

mind is to be persuaded are not to be confused. The difference between the

criminal standard of proof and the civil standard of proof is no mere matter of

words: it is a matter of critical substance. No matter how grave the fact which

is to be found in any civil case, the mind has only to be reasonably satisfied

and has not in respect to any matter in issue in such a proceeding to attain

that degree of certainty which is indispensable to the support of a conviction

upon a criminal charge.47

38. A useful summary of the test, particularly in the context of disciplinary proceedings, was

set out by Dr J R Forbes stated.

The standard of proof is that of the balance of probabilities or “reasonable

satisfaction”; the latter is the better term because the appropriate degree of

proof depends upon the gravity of the charge, the intrinsic probability (or

improbability) of the event alleged, and the consequences of an affirmative

finding to the party charged.48

39. I have applied this standard of proof to my deliberations.

Determining the Category of Conduct

40. Determining the category of conduct can be a difficult task particularly where there are

several acts or omissions involved. A single act could amount to official misconduct,

misconduct or a breach of discipline. Acts or omissions which, when considered in

isolation, do not constitute official misconduct, misconduct or a breach of discipline may

take on that character when considered with other acts or omissions. The entire

circumstances of each allegation/s must be considered before categorising the

conduct. The terms are defined as follows:

Official misconduct is conduct that could, if proved, be—

(a) a criminal offence; or

47 (1965) 112 CLR 517, 521. 48 Robinson v Stevens (Unreported, Misconduct Tribunal Queensland, Dr Forbes, 2 July 1993).

15

(b) a disciplinary breach providing reasonable grounds for terminating

the person’s services, if the person is or was the holder of an

appointment.49

misconduct means conduct that–

(a) is disgraceful, improper or unbecoming an officer; or

(b) shows unfitness to be or continue as an officer; or

(c) does not meet the standard of conduct the community reasonably

expects of a police officer.50

breach of discipline means a breach of this Act, the Police Powers and

Responsibilities Act 2000 or a direction of the commissioner given under this

Act, but does not include misconduct.51

41. Section 17.1.7 of the HRMM provides:

Determining whether a member’s conduct, whether on or off duty, is right and

proper in terms of this code requires examination of:

• the nature of the conduct exhibited; and

• the context in which the conduct takes place.

Within this framework, appropriateness of conduct is then determined with

reference to the expectations of the Service, the wider community and the

provisions of this code…

42. The Misconduct Tribunal decision of Shauer v Banham usefully illustrates this principle.

Dr Forbes discussed the background of a disciplinary proceeding that involved three

‘counts’ of misconduct. When the three ‘counts’ progressed before the appellate

jurisdiction, the respondent offered no material in support of two of the three original

counts. Dr Forbes stated:

When three such counts were “alive” it may well have been appropriate to

place them under an overarching charge of “misconduct”; I suggest nothing

to the contrary. I have merely decided that “misconduct” is not an appropriate

charge when the only surviving count alleges a failure to obey the

49 Crime and Misconduct Act 2001 s 15. 50 Police Service Administration Act 1990 s 1.4. 51 Ibid.

16

Commissioner’s instruction to the letter, without any aggravating

circumstances.52

43. Taken individually, none of the allegations made against any of the officers is capable

of constituting an allegation of misconduct or official misconduct.

44. The collective affect of all of the allegations, considered in the context of each

individual officer might be capable of constituting misconduct though, in the

circumstances, not official misconduct. That conclusion is dependant on the

allegations being made out and a consideration of the impact of those proven

allegations considered collectively. As the substantive part of my decision will

demonstrate, not all of the allegations have been made out. Of those allegations that

are, their collective affect is not capable of constituting misconduct or official

misconduct in this case. Consequently, it is unnecessary for me to make any decision

in relation to an allegation of misconduct or official misconduct.

45. There is a distinction between criminal and disciplinary sanctions. Unlike criminal

sanctions, disciplinary sanctions are not retributive. Disciplinary sanctions are aligned

with the purposes of discipline and to that end are designed to be protective in nature;

protective of both the community and the QPS.53 The protective function of disciplinary

sanctions overshadows the importance of specific or general deterrence. 54 The

relevant considerations when determining a disciplinary sanction are necessarily

informed by the purpose of discipline.

46. It does not necessarily follow that the identification of a breach of discipline will result in

a disciplinary hearing and a consequential disciplinary sanction. The Prescribed Officer

when delegated the powers of the Commissioner has a wide discretion under the

Police Service Administration Act 199055 to chastise, or correct by way of guidance,

inappropriate conduct.56 Consistently with the purpose of discipline, such action is

focussed ‘on improving the conduct of subject members and preventing recurrence of

similar complaints’.57 Where appropriate, a matter may be removed from the formal

disciplinary process and dealt with managerially by chastisement or guidance. I have

considered whether managerial remedies are more appropriate in dealing with

particular complaints discussed in my decision.

52 (Unreported, Misconduct Tribunal Queensland, Dr Forbes, 24 February 1997). 53 NSW Bar Association v Evatt (1968) 117 CLR 177, 183-4. 54 Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2009] 1 Qd R 230. 55 Section 4.8; see particularly sub-s (3). 56 Police Service (Discipline) Regulations 1990 s 11. 57 Queensland Police Service, HRMM, s 18.2.3.

17

47. The factors relevant to considering the appropriateness of the managerial resolution of

complaints are set out in the HRMM s 18.2.3.2. With some adaptation, those factors

also describe relevant considerations when determining an appropriate sanction at the

conclusion of a disciplinary hearing. I have given some consideration to these factors

in the context of the particular complaints raised by the CMC Review. In particular, my

considerations have included all the circumstances giving rise to the complaint,

including the nature and seriousness of the allegations, community expectations, the

attitude of the officers to the perceived failings, the exposure of the officers to public

criticism and censure in the inquests, criminal trial and CMC Review, whether the

conduct was intentional, reckless, suggestive of malice or partisanship, whether the

conduct was indicative of a course of conduct on the part of any particular officer or of

any systemic issue, the impact of the perceived failing particularly on the coronial

inquests and criminal trial, any evidence of collusion, the service history of the officers

including their conduct subsequent to the matters giving rise to the complaint, whether

any perceived breaches are technical in nature and the length of time that has elapsed

since the matters arose. This is not an exhaustive list.

‘Organisational issues – implications for the QPS’

48. The CMC Review suggested under discussion of the topic ‘Organisational issues –

implications for the QPS’ that the ‘QPS and its officers must recognise the need to be

thorough and impartial, and be seen to be thorough and impartial, particularly when

investigating their own officers’. 58 The statement is premised on the assertion that the

investigators, the IRT and the Commissioner have fallen victim to a culture of ‘over-

identification with fellow officers who were under examination’.59 I accept the validity of

the concerns. Nevertheless, with respect, I do not believe these views have taken into

account the demands of an operational officer, particularly one engaged in front line

policing in a remote area of the State. This is understandable. It is difficult to

comprehend the practical realities of policing. What is perhaps mistaken as over

identification with the officers is in reality an appreciation of these practical realities.

The proper examination of these issues requires a balance. This was the the view of

the the Court of Appeal in Aldrich v Ross:

The provision of a system which permits one external public review of the

disciplinary decision is not only the protection against a wrong or

unacceptable decision, it is also the provision of a source which can be

expected to bring a perspective to bear from the public point of view. That is

not to say that considerable respect should not be paid to the perceptions of

58 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxvii & xxviii. 59 Ibid.

18

the Commissioner as to what is needed for the maintenance of internal

discipline. It would be appropriate for the Misconduct Tribunal in making up

its own mind to give considerable weight to the view of the original decision-

maker who might be thought to have particular expertise in the managerial

requirements of the police force.60

49. As the former Deputy Commissioner in charge of Regional Operations, Palm Island fell

within my portfolio of responsibilities. Although that was at a time after this tragedy, I

have specific knowledge of the Island in a policing context. I have visited the Police

station and watchhouse that replaced the former facilities. As with all remote areas, the

Palm Island community is faced with many challenges and hardships. There are a

variety of issues specific to the area that place demands upon finite policing resources.

This can be difficult to comprehend in a policing context for persons who have not been

exposed to those sorts of demands.

50. Before my appointment to Deputy Commissioner (Regional Operations), I was the

Assistant Commissioner of Metropolitan South Region. Prior to that, I was the Assistant

Commissioner at the CMC. These diverse roles have provided me with a

comprehensive understanding of the operational requirements of policing in general,

and the importance and value of the CMC/QPS partnership. Before my appointment to

Commissioned rank, I was a Police Prosecutor and facilitator of Police Prosecutor

Courses. I clearly appreciate the specifics of evidence, impartiality, fairness, public

interest considerations and the need for full disclosure.

51. I have applied my comprehensive understanding of operational policing and my

experience in the managerial requirements of the Police Service during my

deliberations. I have previously ordered sanctions of demotion, pay point reduction and

community service, amongst others, including the ultimate sanction of dismissal. Every

case has its individual character, where issues are diverse, and often complex and

unusual. Community confidence, the needs of the organisation, and the purposes of

discipline, take precedence over any detriment to a subject officer.

52. Along with these considerations, factors bearing upon my decision include, but are not

limited to:

• the evidence within the material;

• the actions of the officers;

• the location of the incident;

60 [2001] 2 Qd R 235, 257.

19

• the availability of resources;

• any evidence of male fides or animus;

• any ‘course of conduct’;

• a consideration of best practice, both retrospectively and prospectively.

Wider Failings in the Investigation

53. The CMC chronology is silent regarding the time the CMC were advised of this death in

custody. However, the CMC noted that on 19 November 2004:

12.10 pm QPS Northern Regional Complaints Manager Kachel was

asked to notify the Ethical Standards Command (ESC) and

the CMC of Mulrunji’s death.

54. The inclusion of this comment in the chronology of the CMC Review suggests that the

CMC accepts notification occurred at about this time.

55. The State Coroner’s Office was notified of the incident:

12.20pm At about this time Detective Inspector Webber notified the

Office of the State Coroner of Mulrunji’s death.

56. The Coroners Act 2003 determined that a Coroner was responsible for the investigation

of this death. That Coroner may seek the help of a lawyer or other person who the

coroner reasonably believes can help the coroner investigate the death.61 That did not

occur. Generally, my experience suggests, in cases where the cause of death is

unknown and suspicion may attach to the possible cause, an autopsy is performed as a

matter of priority, usually within 24 hours. In this case, an autopsy did not occur until 23

November 2004, four days after the incident.

57. There is limited information in the material explaining why it took four days for the

autopsy to be performed. The IRT findings indicate that a ‘pathologist was not available

to conduct the post mortem as would routinely occur’.62 However, the basis for this

comment is not apparent. In any event, the delay affected the momentum of the

investigation and focus of inquiry. An earlier indication of the cause of death would

have had a substantial and material impact on the course of the investigation.

61 Coroners Act 2003 s 15; Police Powers and Responsibilities Act s 794. 62 Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, ‘Allegations Concerning Form 1’, 6.

20

58. The CMC were advised of the incident around the same time as the Ethical Standards

Command (ESC), or shortly thereafter given my knowledge of the reporting

requirements between the QPS and CMC. This was within hours of the incident

occurring on 19 November 2004. In the absence of evidence to the contrary, it is

reasonable to infer the information provided to the CMC was consistent with the

Executive Briefing Note that advised of the scuffle between the arresting officer and the

deceased, and the blood that was visible above his right eye. I note the CMC states the

Executive Briefing Note was faxed on Monday 22 November 2004.63 I particularly note

the CMC response to the QPS via the Matters Assessed Report.

[T]he CMC faxed a Matters Assessed Report to the ESC noting that the CMC

would review the police investigation report. 64

59. Upon being provided with this information, the CMC had legislative power to take over

the investigation from the QPS. The legislation also empowered the CMC to give

directions to the QPS in relation to the disciplinary aspect of the investigation. For

example, the CMC could have directed the matter be independently investigated by

officers from outside the region, reminded the QPS of the obligation to treat the death

in custody as suspicious and not presume natural causes or reminded the officers of

the 1991 recommendations of the Royal Commission into Aboriginal Deaths in Custody

(RCIADIC) and the State Coroner’s guidelines. Significantly, the CMC did not treat this

matter as a homicide and assume responsibility from the beginning. The CMC

assumed responsibility when the cause of death became known and the Commissioner

requested the CMC to assume responsibility. These statements are not made to be

critical of the CMC or the State Coroner; they are made with a view of demonstrating

the mindset which existed in relation to Indigenous deaths in custody by those entities

at that time.

60. By 3.00pm on 19 November 2004, a QPS investigation team was on the Island. I note

the entry in the CMC chronology suggests that, by ‘about this time, investigative

inquiries commenced’.65

61. The investigators conducted a number of interviews on 19 and 20 November 2004,

including re-enactments with several witnesses. They interviewed another witness at

Ingham on 21 November 2004. They were also involved in other investigations

unrelated to this death in custody. The CMC assumed responsibility for the

investigation upon becoming aware of the autopsy results. There was no opportunity

63 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 28. 64 Ibid. This is a CMC document by which an agency is advised of the CMC’s decision about how to deal with a matter. 65 Ibid xi.

21

for the initial QPS investigators to conduct follow-up interviews with those witnesses

spoken to during the preliminary inquiries. All initial QPS investigations, inquiries and

interviews conducted by the officers were handed over to the CMC without any

suggestion of reluctance or hesitation. It is apparent that that evidence formed part of

the final brief of evidence.66

62. All law enforcement bodies undoubtedly appreciate that investigations often require

witnesses to be re-interviewed and other lines of inquiry need to be determined. As the

CMC are aware, I was the Prescribed Officer with respect to a number of subject

officers arising from the CMC Investigation codenamed Operation Capri. The CMC

interviewed witnesses up to three times within Investigative Hearings, and then on

further occasion/s in the disciplinary forum. In addition to this, the ESC further

interviewed some officers on more than one occasion. That operation ran a number of

years, whereas these officers’ role comprised effectively 48 hours of uncompleted

work.

63. The CMC Review was particularly critical of the ‘questioning practices’ 67 of the

investigators. Nevertheless, the CMC adopted practices during its interviews with

witnesses that were inimical to the goal of establishing independent versions. The

interviews with police were, at times, adversarial. Witnesses were asked leading

questions when addressing critical issues. Extraordinarily, on one occasion, two

witnesses were interviewed together. To some extent, the practices adopted by all of

the investigators reflected the uniqueness of the investigation.

64. There is no doubt that the investigating officers did not adhere to all of the OPMs and

the Code of Conduct (the Commissioner’s instructions) in everything they did. As the

Prescribed Officer, I need to determine the nature of those failures in an operational

environment to make an assessment of their culpability, and to determine the

appropriate course of action in consideration of the entire circumstances.

Public Interest Considerations

65. Unlike the results of the inquests, the appeals, the criminal trial and the CMC Review, a

disciplinary decision by a Prescribed Officer is not usually a public document.

Nevertheless, I expect that, whether quickly or not, this decision will find its way into the

public domain. I certainly hope that it does. The public has expressed a genuine

interest in the outcome of the various proceedings sparked by the tragic events on

Palm Island on 19 November 2004. They have been exposed to various perspectives.

66 Ibid 29. 67 See, eg, Letter from Acting Director Dianne McFarlane, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 29 October 2010.

22

The public are entitled to give proper consideration to this disciplinary decision. With

this in mind, I make the following comments.

66. It is inevitable that, whatever my decision, some quarters of the public will be

disappointed. It is impossible to reconcile the opposing views that have permeated the

discussion of these events. I have not attempted to do so. My responsibility is to carry

out my duties as Prescribed Officer. I appreciate that my decision will be the subject of

criticism.

67. It is a natural response to an incident as tragic as Mulrunji’s death to seek to attribute

blame. Mulrunji died unnaturally. His injuries were significant. His passing was sudden

and unexpected. It is to be expected that such a death will invoke a strong and

passionate reaction and I acknowledge the legitimacy of those feelings. The intensity of

these feelings is liable to be further intensified when it is perceived that justice has not

been served. I note there was a strong reaction to the acquittal of Hurley. There

continues to be strong feelings amongst many in the community. The danger, however,

is that strong feelings tend to cloud sound judgment. Issues are prejudged.

68. My responsibilities dictate that I give dispassionate consideration to the evidence. My

decision is not one of political expediency or convenience. Nor are my personal views

of any significance. My duty is to discharge the responsibilities of Prescribed Officer in

accordance with my statutory obligations, following the path lain out in the common law

and relevant policy. I have sought to detail, throughout the earlier pages of this

decision, the reasoning process that I have adopted and the basis for my decision. I

have endeavoured to ensure that sincere readers will understand the basis for my

conclusions. I also accept not all readers will accept my conclusions.

69. A number of reports have circulated following a television report that linked me to the

awarding of medals to two of the officers discussed in this decision. 68 The report

included an interview with Mr Andrew O’Brien, a solicitor who had represented

Mulrunji’s family during the inquests. He suggested that ‘there might be a perception of

bias’ in relation to my appointment as Prescribed Officer. The suggestion has been

endorsed by some commentators.69

70. The issue of conflict of interest (real or apparent) is one faced by all senior decision

makers. What is important is that we recognise the potential for any such conflict,

declare it where appropriate, make decisions based on available evidence and that our

68 Australian Broadcasting Commission, 'Inside Story', The 7.30 Report, 29 November 2010 (John Taylor) <http://www.abc.net.au/news/stories/2010/11/30/3080409.htm?section=justin>. 69 John Taylor, Dea Clark and Debra Nowland, 'Calls grow for Deputy Police Commissioner to stand aside', ABC News (online), 30 November 2010 <http://www.abc.net.au/news/stories/2010/11/30/3080409.htm?section=justin>.

23

decisions are subject to a review mechanism. In relation to this issue, I did declare the

possible perception of my involvement in the Palm Island awards as a conflict of

interest to the Commissioner. I assured him that there was no conflict of interest. My

involvement with the named officers was limited to the performance of one of my official

functions. I had no previous or subsequent involvement with any officer mentioned.

71. The Deputy Chief Magistrate suggested a ‘suspicion’ of collusion between the

investigators and Hurley.70 More provocatively, some commentators have suggested

that the initial investigation was a cover-up. 71 Commentary of the latter type is

inflammatory and detracts from the reasoned discussion of the issues. Unfortunately,

some in the community will continue to foment mischief at their leisure and publish their

views irrespective of the evidence. Simply put, there is no evidence of any cover-up.

The suggestion of collusion, however, cannot be ignored, particularly given the

undeniable integrity of the Deputy Chief Magistrate who advanced this view.

Nevertheless, I have not dealt with this matter. The CMC previously determined that

they would retain jurisdiction to address this aspect of the investigation. I understand

the CMC has completed their investigations. They took the view that:

[T]he CMC has determined that no further investigation is necessary of the

allegations of possible collusion made by Deputy Chief Magistrate Hine in so

far as they may relate to Inspector Webber, Inspector Williams, Senior

Sergeant Kitching and Sergeant Robinson.

The basis for this determination is that following a review of all the relevant

material the CMC has determined there is insufficient evidence to support

either criminal or disciplinary proceedings.72

72. The CMC Review suggested the initial QPS investigation was ‘seriously flawed’. 73

There are a number of complaints made in the CMC Review which appear to be the

basis for the CMC’s conclusion. They are dealt with in detail in the substantive part of

this decision. Nevertheless, it is worthwhile considering the conclusion in a more

general context. The first point to note is that the CMC only raised a complaint that the

investigation was ‘seriously flawed’ in the CMC Review. Despite numerous

opportunities over five and a half years, the CMC did not raise any complaint of this

nature with the Commissioner or in any other forum. If the investigation was seriously

70 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville and Brisbane), Deputy Chief Magistrate Hine, 14 May 2010), [210]. 71 Michael McKenna, 'Time for a new boss to take on bad forces', The Australian (Sydney), 5 July 2010 2010, 2. 72 Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Commissioner R Atkinson APM, Queensland Police Service, 17 June 2010. 73 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xxiv.

24

flawed, the failings should have been immediately evident. As the overviewing agency

for police disciplinary matters, such serious failings should have been dealt with

immediately. There is no explanation as to why the Commissioner was not approached

with a view to imposing some protective measures against the officers involved, such

as stand downs or suspensions.

73. The CMC completed a comprehensive report to the Coroner.74 Unfortunately, this was

one of the documents which I was unable to access.75 However, there appears on the

evidence available to me, no concerns raised by the CMC in this report about the

quality of the investigation or possible misconduct by any officer involved in the

investigation. When issues of concern about the conduct of investigators were raised in

the inquest before the Acting State Coroner, the CMC did not commence nor direct the

commencement of an investigation into possible misconduct by the officers. The

Commissioner initiated the IRT process. The belated raising of this complaint is

disappointing.

74. There is no doubt that there were failings in the initial investigation. A number of factors

contributed to bring these failings about and these are addressed in my decision.

Despite these failings, the evidence demonstrates that the investigators took the

investigation seriously. Senior management immediately mobilised a team that

included the most senior investigators in the Region and crime scene experts. They

arranged a chartered aircraft to expedite their arrival and commenced investigations

upon arrival at Palm Island Police Station. The investigators continued well into the

night, working to a task rather than a clock, without taking a meal and through the

weekend. The evidence obtained by these officers was utilised in the later coronial and

criminal proceedings.

75. It seems that the conclusion that the investigation was seriously flawed is based more

on issues incidental to the investigation than the quality of information gathered during

the investigation. If the post mortem had yielded a result of ‘death due to natural

causes’, I think it highly unlikely that any discussion of discipline proceedings for

misconduct or official misconduct would follow. On the alternative, the QPS may have

utilised the provisions pursuant to the Discipline Regulations and provided managerial

guidance to deal with the matters. The actions of the officers must be viewed

objectively, not with the benefit of hindsight. The evidence simply does not support

action for misconduct or official misconduct.

74 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville and Brisbane), Deputy Chief Magistrate Hine, 14 May 2010), [76]. 75 The material was made available to the Commissioner during the inquest before the Deputy Chief Magistrate. It was provided to the Commissioner conditioned on its use only for purposes connected with the inquest. Consequently, it has not been provided to me for the purpose of the disciplinary proceedings.

25

76. I now turn to my consideration of the specific allegations raised in the CMC Review.

26

PARTICULARS OF ALLEGATIONS AGAINST OFFICERS INVOLVED

77. Disciplinary complaints, like criminal charges, are proffered against individual officers. I

have, therefore, considered the complaints raised in the CMC Review as they apply to

each individual officer. Nevertheless, for convenience, I have set out my reasons

relating to a number of the matters involving both Webber and Kitching in one

discussion. I have adopted this approach to avoid needless repetition and to provide

proper context. It should not be concluded, because I have discussed the officers

collectively, that I have not turned my mind to their separate conduct or culpability.

Some of those same matters involved Williams and/or Robinson. However, the

discussion relating to the latter officers was sufficiently distinct to make the retention of

individual discussions practical.

78. The allegations raised against the members of the IRT were not particularised against

one or other of the two officers involved. The clear intent in the CMC Review was that

the two officers were equally culpable. This creates some difficulties in progressing

disciplinary charges. Nevertheless, for reasons that shall become apparent in my

discussion of the IRT, these difficulties became largely irrelevant.

Preliminary Matters

79. There are several elements of the CMC Review discussion which permeate the

considerations of all the complaints. I have discussed these matters as part of a

preliminary discussion rather than repeat those discussions in respect of each officer.

Those discussions relate to the affect of the Royal Commission into Aboriginal Deaths

in Custody, requirements relating to the recording of interviews with suspects, the

purpose of the IRT Report and the relative standing of instructions issued by the

Commissioner.

The RCIADIC

80. The CMC Review makes reference to the Royal Commission into Aboriginal Deaths in

Custody (the RCIADIC). In particular, the CMC Review references Recommendation

35(a):76

That police standing orders or instructions provide specific directions as to

the conduct of investigations into the circumstances of a death in custody. As

76 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 19.

27

a matter of guidance and without limiting the scope of such directions as may

be determined, it is the view of the Commission that such directions should

require, inter alia, that:

a. Investigations should be approached on the basis that the death may

be a homicide. Suicide should never be presumed;77

81. The CMC Review observed that:

Despite the publicly stated adoption of that recommendation on at least three

occasions prior to Mulrunji’s death there was not at that time an explicit

statement in any QPS policy or procedure document, including the OPM, to

that effect. Rather the OPM relevant at the time of Mulrunji’s death required

that:

• Investigating officers should ‘not presume suicide or natural death

regardless of whether it may appear likely’ (section 16.24.3).78

82. The criticism appears to be that the policy did not explicitly indicate that investigations

should be approached on the basis that the death may be a homicide. Despite this

criticism, the CMC Review nevertheless asserted that the RCIADIC, amongst other

things, ‘could and should have governed the actions of the police officers involved in

the investigation’.79 This assertion is seemingly made on the basis that ‘the Queensland

Government and QPS said that they had implemented’80 the recommendations. This

argument is clearly flawed. The recommendations of the Royal Commission have effect

only to the extent that they are implemented. A failure to implement a recommendation

may be a basis for criticism of the agency to whom it was directed; however, a

recommendation that has not been implemented has no binding affect. In particular, an

unimplemented recommendation of the RCIADIC does not bind members of the QPS.

83. In any event, the OPM did construct a comprehensive scheme for the investigation of

deaths in custody, consistent with Recommendation 35(a). Section 16.24 of the OPM81

set out the requirements for investigating deaths in custody. These requirements were

in addition to s 2.4: 'Crime scene' and s 1.17: 'Fatalities or serious injuries resulting

from incidents involving members (Police related incidents)'82 of the OPM and other

77 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5, Recommendation 35(a). 78 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 19. 79 Ibid 18. 80 Ibid. 81 ‘Deaths in Custody’. 82 Section 16.24.2 of the OPM. Section 2.4 included a discussion of crime scenes under the the general heading of ‘Incident Management’.

28

general investigatory requirements.83 They are entirely consistent with the approach to

homicide investigations more generally.84 They applied whether the death appeared to

be from an ‘apparent suicide, foul play, accident or natural causes’.85

84. Volume 1, ch 4 of the RCIADIC set out an explanation of the concerns giving rise to

Recommendation 35(a). The Commissioners noted that investigations into deaths in

custody were frequently conducted superficially 86 and in a perfunctory 87 way,

proceeding ‘[c]haracteristically … on the assumption that the death was a suicide’.88

The QPS policy in place in November 2004 was well suited to address the concerns of

the RCIADIC and, in particular, to ensure that investigations into deaths in custody

were not conducted superficially or perfunctorily.

Recording of Suspects

85. The more significant difficulty that arises in the CMC Review is the meaning to be given

to Recommendation 35(a) in the context of an investigation. The CMC Review makes a

number of statements critical of the investigators for failing to record conversations.

The basis for this criticism is the apparent interpretation of particular provisions of the

Police Powers and Responsibilities Act 200089 in the context of investigations to which

Recommendation 35(a) is directed. Illustrative of this type of criticism is the statement

on page 69 of the CMC Review:

Section 436 of the Police Powers and Responsibilities Act 2000 provides that

the questioning of a relevant person must, if practicable, be electronically

recorded. As this matter should have been investigated as if a homicide,

Hurley should have been treated as if a suspect.90

86. This statement appears to be the clearest articulation of the CMC’s view of the effect of

Recommendation 35(a) and the requirements of the Police Powers and

Responsibilities Act 2000 on the investigators. However, it is not sustainable.

87. The reference to s 436 apparently reflects the content of the Police Powers and

Responsibilities Act 2000 at the time the CMC Review was prepared. At the time of the

83 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 19. 84 See s 2.6.2 of the OPM. 85 Section 16.24.2 of the OPM. 86 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1, [4.2.4]. 87 Ibid [4.2.5]. 88 Ibid. 89 Unless otherwise indicated, references to the Police Powers and Responsibilities Act 2000 refer to Reprint No 3R, reprinted as in force on 7 November 2004. 90 Citations omitted.

29

investigations on Palm Island, the operative provision was s 263 91 which relevantly

provided:

(1) This section applies to the questioning of a relevant person.

(2) The questioning must, if practicable, be electronically recorded.

88. Apart from suggesting some carelessness, the reference in the CMC Review to s 436

does not appear to be material. There does not appear to be any relevant textual

differences between the former s 263 and the current s 436, and the practical effect of

the provisions appears identical. More important to present considerations is the

meaning of the term ‘relevant person'.

89. The requirements of s 263 were part of ch 7, pt 3 of the Police Powers and

Responsibilities Act 2000. Chapter 7, pt 3 ostensibly sought to provide ‘[s]afeguards

ensuring rights of and fairness to persons questioned for indictable offences’. 92

Relevantly, s 246(1) provided:

This part applies to a person (relevant person) if the person is in the company

of a police officer for the purpose of being questioned as a suspect about his

or her involvement in the commission of an indictable offence.

90. In order to be properly described as a relevant person, a person must be a suspect in

the commission of an indictable offence. This section is concerned with the purpose for

which the person is in the company of an officer and appears to have an element of

subjectivity.93 Section 246 therefore operated when an investigator formed a suspicion

that (a) an indictable offence has been committed and (b) the person in the company of

the police officer was a suspect in the commission of that offence. The meaning of

suspicion was discussed in George v Rockett:

A suspicion that something exists is more than a mere idle wondering

whether it exists or not; it is a positive feeling of actual apprehension or

mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as

Chambers's Dictionary expresses it. Consequently, a reason to suspect that

a fact exists is more than a reason to consider or look into the possibility of its

existence.94

91 Police Powers and Responsibilities Act 2000 as amended by Primary Industries and Fisheries Legislation Amendment Act 2004. The PPRA has undergone numerous amendments since November 2004 and was subject to a complete renumbering in 2006 – see Police Powers and Responsibilities and Other Acts Amendment Act 2006 s84; s 810 of the PPRA currently in force. 92 Heading to Chapter 7, Part 3 of the PPRA. 93 Cf Ruddock v Taylor (2005) 222 CLR 612, 622; R v Cho [2001] QCA 196 (25 May 2001) [24]. 94 (1990) 170 CLR 104, 115.

30

91. The CMC Review appears to rely on Recommendation 35(a) to support the first

suspicion. However, to approach investigations ‘on the basis that the death may be a

homicide’ is not the same as holding a ‘positive feeling of actual apprehension’ that the

death is a homicide. The recommendation seeks to ensure investigations are not

superficial or perfunctory but cannot create a suspicion that the death is in fact a

homicide. Moreover, it is not sufficient to simply hold a positive feeling of actual

apprehension that an indictable offence has been committed; it is also necessary to

hold a positive feeling of actual apprehension that the particular person was involved in

the commission of the offence. Any suggestion that Hurley, or any other person, was a

‘relevant person’ must necessarily consider the basis upon which such a suspicion

might have been formed at that particular time. It is noteworthy that no criticism is made

in the CMC Review of the investigators for failing to apply other relevant safeguards.

The IRT Review Purpose

92. The CMC Review concluded that the IRT had ‘conducted a disciplinary investigation’.95

This conclusion was apparently made on the basis that each interview conducted by

the IRT commenced with words to the effect that the IRT were ‘conducting a

disciplinary investigation into any criticisms of Police made by the Acting State

Coroner’. 96 In addition, the IRT reports into individual officers describe themselves

generically as a disciplinary investigation. Although the process undertaken by the IRT

undoubtedly had elements of disciplinary considerations, it would be wrong to

characterise it as strictly a disciplinary investigation.

93. The IRT commenced an examination of the ‘adverse comments made by the Acting

State Coroner in her inquest findings dated 27 September, 2006’ in January 2007.97

Their purpose was ‘to examine and report on all adverse comments, other than

responsibility or misconduct for the death of Mulrunji’ and make ‘recommendations’.98

Notably, the Acting State Coroner did not specifically make reference to any breach of

discipline.99 The considerations were more wide-ranging. The list of issues identified by

the IRT included criticisms of the QPS, its policies and individual members.100 The latter

could conceivably give rise to the identification of breaches of discipline. So much is

95 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 35. 96 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station), 2 August 2007, Transcript Tape 2 [47]. 97 Memo from Commissioner to Deputy Chief Executive (Operations), Director, Office of the Commissioner and Assistant Commissioner, Ethical Standards Command, 19 December 2006; cf Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, xiii. 98 Memo from Commissioner to Deputy Chief Executive (Operations), Director, Office of the Commissioner and Assistant Commissioner, Ethical Standards Command, 19 December 2006 99 Cf Coroners Act 2003 s 48(4). 100 Report of Investigation Review Team, Queensland Police Service, 'Executive Summary', 2008, 6.

31

evident from the IRT Report which ultimately concluded some disciplinary actions were

warranted. 101 Nevertheless, it seems that the charter of the IRT was somewhat

unusual, with no obvious precedent. It appears that the IRT adopted the general

framework of a disciplinary investigation to progress their responsibilities. This was a

practical approach. It enabled the content of the interviews to be applied to any

disciplinary proceedings that may have later developed. It also gave notice to the

officers that were interviewed that the interviews might later be applied in that way. The

IRT clearly had disciplinary processes in mind102 and subsequently indicated that they

were conducting disciplinary interviews. 103 Nevertheless, disciplinary matters do not

appear to have been the only, or even the primary, purpose of the IRT’s work.

94. The CMC’s conclusion that the IRT was a disciplinary investigation appears to have

been shaped by its knowledge of complaints made in consequence of the Acting State

Coroner’s findings. The CMC Review acknowledged that there was no specific

reference in the IRT Report of the complaints made to the CMC.104 However, the CMC

Review assumed that the IRT Report was intended to deal with those complaints.105

This does not appear to be the case. There is no evidence before me to suggest the

complaints were forwarded to the IRT for investigation as part of their responsibilities.

To the contrary, it seems that whilst the IRT did become aware of the existence of at

least one of the complaints, these complaints were not forwarded to the IRT.106

Commissioner’s Instructions

95. The Commissioner ‘may give, and cause to be issued, to officers, … such directions,

written or oral, general or particular as the commissioner considers necessary or

convenient for the efficient and proper functioning of the police service’.107 Implicit in

this power is the power to amend or repeal those instructions.108

96. The CMC Review fails to draw any distinction between the various types of instructions

issued by the Commissioner to members of the Police Service. In particular, the OPM

is structured around a triumvirate of instructions, namely orders, policies and

procedures. Each is defined in the OPM:

101 See the discussion below at paragraph 523. 102 Procedural Fairness Submission from Inspector and Inspector to The Honourable Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission, 30 April 2010, 15. The IRT noted that a view was formed about the role of Superintendent prior to his interview. 103 Ibid 17. 104Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 5, 34. 105Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 5. 106 Email from Bob to Colin Strofield, 14 November 2007. 107 Section 4.9 of the Police Service Administration Act 1990. 108 Cf Acts Interpretation Act 1954, ss 23 and 24AA.

32

Order: An order requires compliance with the course of action specified.

Orders are not to be departed from.

Policy: A policy outlines the Service attitude regarding a specific subject and

must be complied with under ordinary circumstances. Policy may only be

departed from if there are good and sufficient reason(s) for doing so.

Members may be required to justify their decision to depart from policy.

Procedure: A procedure outlines generally how an objective is achieved or a

task performed, consistent with policies and orders. A procedure may outline

actions which are generally undertaken by persons or organisations external

to the Service.109

97. The maintenance of this distinction is important when assessing the conduct of the

officers course of action.

Detective Senior Sergeant Raymond Kitching and Detective Inspector Warren Webber

Allegation 1: Officers Serving on Palm Island Involved in Investigation

98. Webber and Kitching were subject to specific criticism from both the Acting State

Coroner and the CMC Review. The Acting State Coroner commented:

It was unwise and inappropriate for an officer serving on Palm Island, who

was known to be a friend of Senior Sergeant Hurley to be involved in the

investigation. It was not the fault of Detective Robinson that this occurred – it

was the responsibility of those appointing the investigators to recognise the

perception of collusion that this might create.110

99. The Acting State Coroner also stated:

27. The involvement in the investigation of Mulrunji’s death of officers

from Townsville and Palm Island was inappropriate and undermined

the integrity of the investigation.

…

109 See ‘Definitions’ of the OPM. All references are to OPM issue 16 July 2004 unless otherwise indicated. 110 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10.

33


who knew Senior Sergeant Hurley personally, or were friends with

him, was inappropriate and compromised the integrity of the

investigation.111

100. The CMC Review commented:

The evidence suggests that Robinson’s conflict of interest was such that it

should have prevented him from any involvement whatsoever in the

investigation. In other words the CMC’s view is that the integrity of the

investigation could not have been preserved by judicious management of

Robinson’s involvement.

It is not clear from the information whose decision it was to involve Robinson

in the investigation, nor is it apparent from the available evidence that

Robinson made any attempt to disclose his friendship with Hurley. In any

event Webber and Kitching had a responsibility to ensure the impartiality of

the investigation.

In the CMC’s view, there were sources of local knowledge other than

Robinson available to the investigation team, and finding one would not have

delayed the investigation as has been argued. There is no information that

suggests that the investigation team (or the IRT) gave any real consideration

to alternative sources of local knowledge, such as:

• Acting Senior Constable Tonges, who was on Palm Island at the time

and had been stationed there since April 2003.

• The list of local ATSILS contacts, support persons and interpreters which

must be maintained under sections 6.3.6 and 6.3.4 of the OPM.

• The Community Justice Group (who Robinson said were present when

witnesses signed their statements).

• Senior Sergeant Dave Dini, a cross-cultural liaison officer also was

identified by the Acting Assistant Commissioner as someone who may

have been able to identify appropriate support people and may have

been able to also identify appropriate sources of local knowledge.112

111 Ibid 31. 112 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 55-57.

34

101. The CMC Review further commented:

Section 1.17 of the OPM gave Webber direct responsibility for the

investigation of the death in custody and required him to ensure that the

investigation was conducted impartially.

In the CMC’s view, Webber failed to do so when he allowed Robinson, who

was a friend of Hurley and who he knew had previously failed to properly

investigate an allegation against Hurley, to be involved in the initial QPS

investigation, justifying his use by his local knowledge and failing to consider

any other options.

…

Section 1.17 of the OPM required Kitching to conduct the investigation

expeditiously and impartially.

In the CMC’s view, Kitching failed to do so when he allowed Robinson, a

friend of Hurley’s to be actively involved in interviews and, among other

things, to ask questions.113

102. OPM 1.17 relevantly provided:

ORDER

All police related incidents are to be investigated by or under the direction of

the regional crime coordinator unless otherwise directed by the Internal

Investigation Branch, Ethical Standards Command or the Crime and

Misconduct Commission.

Investigations of police related incidents are to be conducted expeditiously

and impartially and the psychological welfare of individuals considered.

POLICY

When investigating police related incidents, a regional crime coordinator

should conduct the investigation or appoint an independent senior

investigator with sufficient criminal investigation background to carry out

investigations. Considerations by regional crime coordinators in making any

such appointments should include the gravity of the incident, the rank of the

officers or the level of seniority of the members who are directly involved in

113 Ibid 165-6 (citations omitted).

35

the incident (as opposed to witnesses), and the establishment at which those

officers or members directly involved in the incident are stationed.

In cases involving custody police related incidents, a regional crime

coordinator should appoint an investigator from a police establishment other

than from where the incident occurred, or where the officers or members

directly involved in the incident are stationed.

Where the Crime and Misconduct Commission or Internal Investigation

Branch, Ethical Standards Command, overviews an investigation of a police

related incident, the regional crime coordinator retains responsibility for that

investigation.

Where the Crime and Misconduct Commission considers it should assume

control of an investigation, the senior police officer of the Crime and

Misconduct Commission at the scene should confer with the regional crime

coordinator and a senior representative of the Internal Investigation Branch,

Ethical Standards Command.

Duties and responsibilities

In addition to any other actions and duties for which officers are responsible

in accordance with the provisions of this manual and the Human Resource

Management Manual, officers are also responsible for the following matters:

…

Regional crime coordinator

ORDER

A regional crime coordinator is to:

(i) be directly responsible for the investigation of a police related

incident, unless otherwise directed by the Deputy Commissioner,

Deputy Chief Executive (Operations), or unless responsibility for the

investigation is assumed by the Internal Investigation Branch, Ethical

Standards Command or the Crime and Misconduct Commission;

(ii) appoint investigators with sufficient criminal investigation background;

…

36

(v) in cases of deaths in custody as defined in s. 16.24.1: 'Investigation

of death in custody' of this Manual, ensure that where necessary the

provisions of ss. 16.24 to 16.24.5: 'Deaths in custody' are complied

with.

…

Integrity of investigation

POLICY

First response officers, regional duty officers and regional crime coordinators

should ensure that the integrity of independent versions of members directly

involved and members who are witnesses to a police related incident is

preserved as far as practicable.

In this regard, members directly involved in the incident or who are witnesses

to the incident should be interviewed separately and as soon as practicable

following the incident. It is highly desirable that interviews occur prior to any

critical incident stress debriefing, including any defusing. Members directly

involved in the incident or who are witnesses to the incident should not

discuss the incident amongst themselves prior to being interviewed.

103. This policy placed specific obligations upon the Regional Crime Coordinator, Webber.

He was responsible for the appointment of an experienced investigator, independent of

the police establishment where the incident occurred. No specific criticism was directed

at Webber for his selection of Kitching as the principal investigator.114 In addition, he

had an obligation to ensure investigations of police related incidents were conducted

expeditiously and impartially and the psychological welfare of individuals was

considered. The inclusion of Robinson in the investigative team had the potential to

affect the impartiality of the investigation. Even if this potential was not realised, it had

the capacity to create a perception that the investigation was not conducted impartially.

104. No specific obligation is placed upon Kitching by this policy excepting that

investigations are to be ‘conducted expeditiously and impartially’. This policy does not

outline what assistance might be sought from relevant police establishments whilst

ensuring that the investigation is conducted ‘expeditiously and impartially’. Service

policy has since been amended to highlight and address the issue of maintaining the

integrity of an investigation.

114 However, cf ibid 59. This criticism is directed at the IRT and is discussed later in that context.

37

105. Mr Hunyor examined Webber in the inquest before the Acting State Coroner:

Hunyor: Now, Detective - not detective - I'm not sure of his rank, but

Mr Robinson. He's one of the Palm Island police officers?

Webber: Yes.

Hunyor: Why was he permitted to be involved in some steps of the

investigation?

Webber: Probably because, firstly, as a, you know, he's a detective

sergeant; he's a fairly experienced officer, and secondly,

because he had local knowledge, which certainly myself

and others didn't have.

Hunyor: But, we started this one, recognising the need for integrity,

transparency in the investigation; correct?

Webber: Yes.

Hunyor: You were there for that very reason; that is, that's why he

wasn't investigating this matter. Correct?

Webber: Yes.

Hunyor: You were investigating it?

Webber: No.

Hunyor: Yet, you got him to take the statement from Bramwell?

Webber: We - I didn't know-----

Hunyor: Did - did you or not?

Webber: I did not know what Bramwell was going to say.

Hunyor: No. Did you or did you not permit, if not direct-----?

Webber: Yes.

Hunyor: -----Robinson to take Bramwell's statement?

Webber: Yes.

38

Hunyor: That sort of contravenes the - the whole purpose of you

being over there, doesn't it? A witness, who says he saw

what happened, is being investigated and a statement

taken from him by Robinson, who's a friend of Hurley?

Webber: I don't think I would go so strong as to say it was being - he

was being investigated. The witness was being

investigated.

Hunyor: I'm sorry, investigation - I've misused it. There's a

misplaced word there. I - he was involved in the

investigation of the incident; correct?

Webber: Yes.

Hunyor: And he took the statement from the one alleged

eyewitness; correct?

Webber: Yes.

Hunyor: And you permitted that?

Webber: Yes.115

106. Webber also elaborated upon his testimony when interviewed by the IRT:

The statement was taken before that video re-enactment,

you are right. So ROBINSON did in fact take statements.

WEBBER: Yes.

Um yeah. In hindsight, and I know that that's a wonderful

thing, but if you were given this circumstance again would

you have involved ROBINSON who was in fact the

Detective Sergeant on the island in some regards the 2-I-C

to the O-C of the station, um who probably more commonly

would have been a friend of ah HURLEY's, would you -

WEBBER: UI.

- would you use the same circumstances?

115 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 750 (emphasis added).

39

WEBBER: Ah probably not, ah probably ah, well that's not to say he

wouldn't have involvement in the investigation per se.

That's what I'm asking.

WEBBER: Ah in, in hindsight ah knowing what occurred subsequently

and all the rest of it, ah we probably would have um ditched

one of the other people on the plane and put another

investigator on the, on the plane to um, to assist

KITCHING.

Just on that, logistically though I've got a couple of

questions for you. First of all, ah who else could you have

used other than Detective Senior Sergeant KITCHING? Ah

in, in terms of getting someone there quickly.

WEBBER: Ah to lead the investigation?

To lead the investigation.

WEBBER: Um the, the alternative would have been ah Detective

Senior Sergeant ah SCANLON, ah who's in charge of the

C, C-P-I-U ah who I think may actually have a, a, a greater

personal relationship with Chris HURLEY than ah, than

anyone else and I'm just not sure if Detective Senior

Sergeant ah MILES from, is the SCAN representative may

have been ah, may have been UI.

There were a very limited number of people on the ground

that you could use in a practical sense with appropriate

skills is what you're telling us?

WEBBER: That's correct.

And in terms of ah Detective Sergeant ROBINSON, even

though it appears to me now you've recognised that um

there could be a potential conflict of interest in some of the

things he did but what I'm trying to get at is if you want to

go to the island to do the job ah logistically who else could

you have chosen other than Detective Sergeant

ROBINSON to allow that ah local knowledge to be used?

40

WEBBER: I don't believe there was anyone else that we could have

taken to the island. And, and that's what I say I believe he

would have had to have, had, had to have played a role. Ah

in hindsight ah we probably could have ah reduced the role

ah but we couldn't have eliminated him and, and, and

effectively investigated.

If you did reduce his role what would the effects of that

have been?

WEBBER: Potentially to um, to ah delay the investigation and, and ah,

and made it take, take longer with all the implication that

arise, that arise from that. Ah because it's my, my belief

that one of the ah, ah one of the ah deficiencies I suppose

if you want to call it, use that word ah was that we were

unable to actually locate BRAMWELL on the Fri, on the

Friday night. I believe that if we'd been able to locate him

that Friday night and get a complete version from him on

that night I don't believe ah he would have made the

allegations that he subsequently made which um may well

have ah put a completely different perspective on things.

Why do you say that? That he wouldn't have made those

allegations.

WEBBER: I, I believe that he was in-influenced ah by subsequent

events and, and what occurs on the island and the

grapevine etcetera, etcetera that, that takes place over

there that he was influenced, ah he was obviously a person

ah who'd been arrested for serious assaults, ah he was

certainly um no um, he had his own grievances in relation

to the Police. Ah there was alcohol, alcohol was a factor

um and I believe that um if he'd been located then on that,

on that Friday before he had the opportunity to, to go and

speak to other people, be influenced by what they may

have said, ah consumed more alcohol himself that he may

well have ah, ah given a different version of events.

Okay. Did you consider, and this is a logistical exercise, did

you consider using an investigator from outside the district

and or region?

41

WEBBER: Ah, well ah con-consideration, very brief consideration just

in, in relation to at the time of appointment but it simply

becomes impracticable because of those things, because

of the time factor and as I said ah the difficulties you have

obviously Inspector WILLIAMS ah was sent up to assist the

investigation or overview the investigation but he was

unable to arrive until Sat, until the Saturday morning and

we would have faced those same logistical exercises if we

brought people in from out-outside to do it.116

107. Mr Callaghan examined Kitching on this matter during the inquest before the Acting

State Coroner:

Callaghan: All right. That included the tape of your interview with

Senior Sergeant Hurley of the 19th of November?

Kitching: Yes, that's right, yeah.

Callaghan: Yes. Did you then make arrangements - or was it then

arranged for them to listen to that interview?

Kitching: I provided them with the tapes; I don't know whether they

listened to them or not. I believe Inspector Williams did, but

again, I'm not sure.

Callaghan: Okay. In that interview that you conducted on the 19th of

November, Detective Robinson was present?

Kitching: With who, sorry?

Callaghan: With Senior Sergeant Hurley? -- Yes, he was, yes.

Callaghan: Were you aware of the nature of his relationship with Mr

Hurley?

Kitching: I certainly-----

Callaghan: Were you aware they were friendly?

Kitching: Well, yes, I did, yes.

116 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [541]-[662] (emphasis added).

42

Callaghan: Did you regard it as appropriate for him to be sitting in on

the interview in those circumstances?

Kitching: I certainly didn't think it was inappropriate.

Callaghan: Okay. But in any case, there was certainly nothing done at

that interview to make Senior Sergeant Hurley feel

uncomfortable, was there?

Kitching: No.

Callaghan: He was friendly with yourself; if not a friend, friendly?

Kitching: Well, I certainly knew him, yes.

Callaghan: You - and well disposed; you were well disposed to each

other, as far as-----?

Kitching: yes, yeah.

Callaghan: -----you were concerned?

Kitching: Definitely, yes, yeah.

Callaghan: And Sergeant Robinson, to your assessment, was even

better acquainted?

Kitching: Well, they'd lived and worked together-----

Callaghan: Yes?

Kitching: on Palm Island for a number of years, yeah.

Callaghan: Okay. So, as far as you're concerned, there is absolutely

no reason why anything that Senior Sergeant Hurley said in

that interview would be inaccurate, by reason of any

pressure you put on him or anything like that?

Kitching: No, not as far as I'm concerned.

Callaghan: You agree with me?

43

Kitching: Yes, I do, yeah. 117

108. Kitching elaborated upon his testimony when interviewed by the IRT:

We might move on to the ah next issue ah for me, that is

recommendation twenty-seven um which and

recommendation thirty-one just UI the they're at page thirty-

one of the ah Acting State Coroner's findings. And they

state ah the involvement in the investigation of

MULRUNJI's death ah and by MULRUNJI they're referring

to of officers from

Townsville and Palm Island was inappropriate and

undermined the integrity of the investigation. That's at

twenty-seven. And recommendation thirty-one says

involvement of the investigation of MULRUNJI's death by

officers who knew Senior Sergeant HURLEY personally or

were friends with him was inappropriate and compromised

the integrity of the investigation. And at page ten, and I've

marked it point two in the Acting State Coroner's ah

findings the Acting State, State Coroner in the second

paragraph on that page said it was unwise and

inappropriate for an officer serving on Palm Island who is

known to be a friend of Senior Sergeant HURLEY to be

involved in the investigation. It is not the fault of Detective

who were on the scene that this occurred, it was the

responsibility of those appointing investigators to recognise

the perception of collusion that this might create. You've

read those before -

KITCHING: Yes I have.

- Senior?

KITCHING: Yes.

At the inquest ah you said words to the effect that you

knew Senior Sergeant HURLEY, something like that if you

saw him ah you'd stop in the street to talk to him but that

you were not a friend of his. That was correct?

117 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 772.

44

KITCHING: Not a personal friend, that's correct.

Inspector WEBBER selected you for this job?

KITCHING: Yes he did. And Assistant Commissioner was aware

or briefed in relation to my appointment and certainly ah, ah

did not express any reservations concerning that

appointment.

In terms of ah your knowledge of Senior Sergeant HURLEY

in his role ah as the officer in charge of Palm Island, could

the same be said of most officers in Townsville that might

have similar experience to you, the officer in charge of the

J-A-B, another Senior Sergeant that had criminal

investigation experience, that they would likely have known

him in some way?

KITCHING: That's correct. But probably even taking this back a step

further ah in relation to the Acting Coroner's ah issues that

she raised there if you like, ah but I can certainly say I

certainly knew Senior Sergeant HURLEY from my previous

experience when I was the officer in charge of Cloncurry

Stock Squad. At that time HURLEY was appointed as the

officer in charge of Burketown Police division. During that

time I had reasons to communicate with HURLEY whilst

conducting numerous investigations in and around the

Burketown Police division. HURLEY was known to me but

he was not considered a personal friend. HURLEY was

later appointed as, as the officer in charge of the Palm

Island Police division. On his appointment I was the officer

in charge of Townsville C-I-B. In that position I hold

responsibility for the overview and coordination of crime on

Palm Island. In that capacity I had telephone

communication with Senior Sergeant HURLEY in relation to

criminal investigations however again we did not meet

socially. We were respected work acquaintances on a

professional level and our communication was required to

conduct professional policing business. I do not consider

that my interaction with HURLEY was over and above the

dealings and associations I have had during my service

with any other colleague particularly those of officers in

charge role. My relationship with HURLEY did not in any

45

way, shape or form impact on my ability to impartially

conduct a thorough and transparent investigation and I

reject the criticism of the Acting Coroner in that regard.

Just from a practical, practical perspective and ah so not so

much about your role but what I am trying to ah question

you about is in a general administrative sense if you

wanted to get a Senior, Detective Senior Sergeant to Palm

Island in a hurry and you're at Townsville um there's a

limited number of people you could choose isn't there in

Townsville?

KITCHING: UI. Well I'm the most senior ah criminal investigator outside

of the Detective Inspector.

Yeah.

KITCHING: Ah throughout the Townsville district um and it would be

appropriate to have me appointed to that position.

Yeah.

KITCHING: Of that investigation.

And even then there would only be a maximum of three or

four officers wouldn't there in your experience within the

Townsville district that could have had the role and

experience to go and do that job?

KITCHING: Ah po-

At Senior Sergeant -

KITCHING: - possibly, possibly. Maybe, yeah without going through the

names on the list.

Yeah. And the only other practical alternative and tell me if

I'm wrong as a suggestion to you would be to fly someone

from Cairns, Mackay those sorts of things which is going to

take a number of hours isn't it?

KITCHING: Well that probably wouldn't happen that day.

Yeah.

46

KITCHING: Certainly wouldn't happen that day.

Ah who selected Detective Sergeant ROBINSON to assist?

KITCHING: Ah ROBINSON wasn't appointed to the investigation at all.

He was serving there and assisted me in my capacity. Um

he certainly sat in during the interviews that I conducted

with ah all the civilian witnesses and the police witnesses

and at my request I had him obtain statements from those

persons for the ah, for the sake of, of obtaining their

versions while they were there with us at the Police Station

and ah for later production to the Coroner at, at any um, at

any inquest. Now um ROBINSON wasn't appointed to my

knowledge by anyone, he was ah in Townsville at the time

the death was reported in relation to other matters. Ah he

was taken and transported with us via charter flight back to

Palm Island because ah Detective Sergeant ROBINSON

had been on Palm Island for a number of years and had a

personal knowledge of ah the community and I needed and

Mr WEBBER needed -

Just stop there Senior, these tapes are going to run so it

might be a good time to take a short break and I'll change

the tapes. The time is about 1:47pm. Do you agree with

that?

KITCHING: Yeah. That's correct.

Continued Tape 2

We were talking there about um Senior Sergeant ah

Detective Sergeant sorry ROBINSON ah being involved in

the investigation on the island um you didn't have personal

experience of ah or not a great knowledge of individuals on

Palm Island.

KITCHING: Not on Palm Island, no.

So if you were to investigate on Palm Island ah and you

didn't use Detective Sergeant ROBINSON, would you be

hamstrung in any way?

KITCHING: Well I certainly -

47

Would it have an effect?

KITCHING: Yes it would have a massive effect. I certainly wouldn't

have ah had any understanding or knowledge, local

knowledge of where to find people on the island, who

associates with who, what the community um, um

structures are ah or, or who the people are to ah, to assist

with the investigation. Detective Sergeant ROBINSON was

the only Police Officer on the island that was removed from

this incident it-itself, wasn't on the island at the time, he

was the most appropriate person um to provide assistance

to me to identify these persons, um to assist in the

investigation.

But you previously said you didn't identify him or appoint

him as your ah 2-I-C for that?

KITCHING: No. He wasn't appointed to the investigation but I

requested him to assist with you know community liaison,

finding witnesses, people, that type of stuff and then I

requested him to ah obtain statements for me, after I

conduct records of interview with people like we're doing

here right now, I asked him to go away and commit that to

a, ah a paper statement before presenting it to the um

presenting them to the Coroner at a later time.

Inspector WEBBER was - had knowledge of, of that?

KITCHING: Ah Inspector WEBBER was doing a lot of things that day

including liaising with the family and, and other, other

matters in relation to the death. Now that was ah that was

a strategy that I implemented, um certainly Inspector

WEBBER was there. Ah he was briefed a number of times

throughout the day and he certainly didn't have reser, did

not express any reservation to that process.

Just so I'm clear on the plane that flew over from Palm

Island, there was yourself, Detective Inspector WEBBER,

Detective Sergeant ROBINSON and some scientific

officers, is that it?

48

KITCHING: Yeah. There was nine people altogether. People travelling

to Palm Island that day was Detective Inspector WEBBER,

myself, Detective Sergeant ROBINSON, Senior Sergeant

Lloyd ARTHY who is the ah regional forensic services

officer, Sergeant TIBBEY who is a scenes of crime officer,

Sergeant BARTULOVICH who was the ah scientific officer,

Constables PAGETT and JACQUES, they were two ah

TAC crime officers Queensland tactical crime squad

officers and ah our local H-S-O um Kim CHESHIRE

travelled over on that flight as well so there was nine of us

on that flight with the pilot, and the plane was full, we

couldn’t take any more people or equipment.

Did anyone ah either Inspector WEBBER, did anyone,

yourself, discuss the need for independents in terms of the

investigation -

KITCHING: UI.

- to be seen to be - um in terms of ah interviewing Senior

Sergeant HURLEY and other witnesses, did anyone

discuss ah the need for the investigation to be seen to be

independent.

KITCHING: Well I think it ah it certainly was independent in the fact that

um the ah policies and the O-P-M's were followed and that

you know I was UI the investigation, I was away from that, I

wasn't part of that station environment, I was removed from

the incident. Ah all the issues that were raised in ah O-P-

Ms 1.7 and 16.2, 4 and 5 in that regard, there was certainly

impartiality and there was certainly ah, um no inference of

collusion or anything there at all.

Ah in terms of Detective Sergeant ROBINSON's role, he

was only used as a corroborating officer when you talk,

when you interviewed Senior Sergeant HURLEY?

KITCHING: The purposes of having ROBINSON there to sit with me

during those interviews so he understood the version of

events that were given by these people okay. And I

requested him then to go away and obtain typewritten

statements okay. It would be ludicrous to think that I could

49

conduct a record of interview with any person then expect

someone with no knowledge of what ah evidence has been

given to go and take a, a statement to reflect that evidence

okay. So um yes I suppose in technical terms he was a

corroborator but it wasn't to that extent. It was, it was an

evi-evidence gathering exercise because there was

absolutely no um idea or understanding how this person

died and ah my intention was to gather as much evidence

as possible as quickly as possible as stated in the O-P-M's

you know whilst um these matters were still fresh in all

persons memory and commit that to a form of electronic

record of interview and then where possible through

statements from the civilian witnesses.

In terms of resources that you had at your disposal besides

Detective Sergeant ROBINSON was there anyone else on

the island that could have helped?

KITCHING: There was, there was no-one else. There's one Police

Liaison Officer called ah Lloyd BENGAROO he was

involved in this incident. Okay, ah the other police involved

were ah Senior Sergeant Chris HURLEY and Sergeant

Michael LEAFE, they were both on duty that day involved

in the incident. Ah we took two TAC crime officers with us

to attend the policing duties while I conducted that

investigation. Ah there was no other police on the island or

no other person that I was aware of that could assist. Now

we certainly included the ah Aboriginal and Torres Strait

Islander Legal Aid Service right at the commencement of

the interview um when they were they ah were brought into

the station and informed of the death and they certainly

provided assistance with ah Inspector WEBBER to go to

the family and advise them of the death. Um as I said there

was no other persons in and around that place. There was

no other police liai-liaison officers who were known to the

community who could assist at that time.

Continued Tape 3

Just one in closing and, and I just go back to this and I

don't want to harp on it. But on page ten of where the State

Coroner or Acting State Coroner says it was unwise and

50

inappropriate for an officer serving on Palm Island who was

known to be a friend of Senior Sergeant HURLEY to be

involved in the investigation. She then goes on to talk about

that it was the responsibility of those appointing the

investigators to recognise the perception of collusion that

this might create. Did I get you right when you said that you

didn't appoint him, or but did you ask for him to assist you?

KITCHING: ROBINSON?

ROBINSON.

KITCHING: No he wasn't appointed. He was there and because of his

ah knowledge of the community, his position within that

community I used him as a conduit for me to assist with my

investigation to progress my investigation.

How did he get to be on the plane?

KITCHING: Ah he was on um, he was ah in Townsville at the time.

UI.

KITCHING: Okay, and we requested him to come back with us to

provide that conduit to assist us because obviously

BENGAROO, um HURLEY and LEAFE were involved in

this incident and we had no other forms of trying to ah

communicate with the, with the community or identify the

persons we needed to speak to, we don't know the families,

we don't know the ah social UI over there and we needed

somebody that was impartial to assist me in that regard.

That's the, the perception she's saying that he might not

have been impartial because he was a friend and a

workmate or work colleague of HURLEY's. If you were to

have known the cause of death at the time would you have

requested him to have been party to your investigation?

KITCHING: Ah at that time yes. Um in hindsight no.

That's what I'm saying. If you'd known the cause of death to

be ah the massive tearing of his liver as a result of

51

something that happened in the police station you wouldn't

have asked for -

KITCHING: ROBINSON.

- to be a party to that?

KITCHING: When you're talking about perceptions in hindsight and in

the ideal world, it would probably be advantageous not to

have had ROBINSON there. However -

And that's what, that's what I'm asking.

KITCHING: - at, but at the time and I must say that at the time there

was no alternative. We didn't have any alternatives. We

arrived there at three o'clock in the afternoon on a Friday

night, all government agencies leave the island, they don't

stay on Palm, they don't stay there overnight, they fly in

and out every day. There's no alternative. We needed to

use whatever resources we had available to us to ah

investigate that matter as far as we could.

Yes.

KITCHING: And ROBINSON was that person that ah that I needed to

use to assist.

And so you, you've inferred that with HURLEY as well,

that's why HURLEY was used because there was simply

logistically -

KITCHING: That's right.

- very few other options I suppose UI.

KITCHING: And, and look as, as I said earlier in the interview um quite

a time ago we're talking about Palm Island here, a totally

isolated community with no real um resourcing to assist in

these type of matters. We're not talking about a Yarrabah

or Woorabinda or somewhere like that which is close to

other major communities where you can quickly get access

to other um resources to use. Palm Island is a, a totally

isolated place where you can only fly in and fly out or, or

use water, boat in and boat out um and it's not, not

52

reasonable. That investigation was conducted in the best

possible way that we could conduct it at that time. You

know as I said hindsight's a wonderful thing um and this is

the first, first ever that um a person has tragically died in

these set of circumstances ah and unfortunately it occurred

on Palm Island where logistically we could not get any

other resources to assist and we did the best we could with

what we had.118

109. In his procedural fairness submission, Kitching outlines the reasons he used Robinson

to assist him:

• he was the officer in charge of Palm Island CIB;

• he had worked on Palm Island for a considerable time;

• he had a good rapport with the community;

• and he was a person who could assist him find witnesses or other

persons who may assist in the investigation.119

110. A factor that he also included in making this decision was that Robinson was not

present on Palm Island at the time of Mulrunji’s death. In contrast, the disadvantage in

including Robinson was his personal relationship with Hurley. It is clear that Kitching, in

weighing the benefits and disadvantages, believed he could appropriately manage

Robinson’s involvement. It is important when reviewing the decision to take into

consideration the information then known to Kitching. It was known to the investigators

that Hurley had arrested Mulrunji and that a struggle ensued. However, the significance

of that struggle was not then known to the police. Prior to leaving for Palm Island, the

investigators were faced with a number of plausible explanations that could account for

the death of Mulrunji, many of which may have had nothing to do with his detention.

111. It is also relevant to consider the lack of feasible alternatives available to the

investigators. The CMC Review proposed a number of sources of local knowledge

other than Robinson:

118 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station), 1 August 2007), Transcript Tape 1 [1186]-[1348]; Transcript Tape 2 [30]-[173]; Transcript Tape 3 [1045]-[1151]. 119 Letter of Paul Byrne to Crime and Misconduct Commission 'Response to Crime and Misconduct Commission's Draft Palm Island Report on Behalf of Detective Senior Sergeant Raymond Kitching', 29 April 2010, 6.

53


and had been stationed there since April 2003.

• The list of local ATSILS contacts, support persons and interpreters which


• The Community Justice Group (who Robinson said were present when

witnesses signed their statements).



have been able to identify appropriate support people and may have


112. Robinson was not on Palm Island at the time and therefore not connected with the

death. The same could not be said for other officers, including Tonges.121 Until the

investigation could be advanced, there was no real way of knowing who might be

involved.122 The decision not to involve a person who had been on Palm Island at the

time of the incident was an undeniably practical consideration.

113. The suggested use of ATSIL representatives and community representatives was also

problematic. The investigators have limited control of any of those persons, as they are

not bound to maintain confidentiality or subject to direction. By contrast, Webber and

Kitching were entitled to expect that Robinson would act professionally, and in any

event was subject to direction. The use of ATSILS lawyers was even more impractical,

since a lawyer has an overarching duty to any clients rather than to the police

investigation. 123 The cross cultural liaison officer may well have identified potential

support persons. However, there is no evidence before me to suggest he might have

identified any other alternatives apart from those already discussed. I do accept this

option should have been explored at the time though I also accept it was unlikely to

identify any other practical alternative.

114. The CMC Review’s further discussion does not assist. On page 57, the CMC Review

said:

120 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 56-7. 121 Significantly, at least at the time of his interview with the CMC on 8 December, the CMC appeared to hold information that Tonges may have been present at the Palm Island Police Station when Mulrunji was removed from the police vehicle by Hurley, presumably on the basis of the statement given by Florence Sibley. See Detective Inspector Ken Webster, Interview with Acting Senior Constable Ben Tonges (Mundingburra District Office, 8 December 2004), [136]ff. 122 For example, Steadman was not interviewed until 8 December 2004 and presumably, not identified as a witness to the fall of Mulrunji and Hurley until about that time. 123 See, eg, Spector v Ageda [1973] 1 Ch 30, 48.

54

However, there is a significant difference between someone who merely has

a working relationship with Hurley or someone who knows Hurley from living

on Palm Island and someone with a personal friendship.

It was also argued that Robinson was the most appropriate person to provide

local knowledge, as he was not present on Palm Island at the time of

Mulrunji’s death, and therefore was the only police officer who was

completely independent. However, other officers on the island at the time

were not on duty and there is no suggestion that they … were close friends

with Hurley. It would have been preferable to use, for example, Tonges rather

than Robinson (or indeed another source of local knowledge independent of

the QPS).124

115. The proscription of Robinson because of his friendship is based upon the hindsight that

Hurley’s conduct would come under direct scrutiny. This information was not known to

the investigators when Robinson was selected. Given the number of police stationed

on the island and their dependence upon one another in a social context, it is probable

they all had some personal friendships with each other.125 Had the same test been

applied, based on the information available to investigators at the time, it is likely all

officers on Palm Island would have been disqualified from any involvement. Whilst

friendship might not have been an issue for all officers, every officer except Robinson

was in direct line control of Hurley in that they were all subordinates under his direct

supervision. This relationship is likely to have caused concerns about the impartiality of

the investigation. By contrast, Robinson came under the direct line control of Kitching.

In short, whilst I accept Robinson was not an ideal choice to assist the investigative

team, I do not accept that there were any ideal alternatives.

116. I do not suggest the investigators necessarily discounted these alternatives. However,

these alternatives were raised by the CMC Review after reflective consideration. They

were still impractical. The investigators were compelled to make their decision without

prior notice in the context of making urgent arrangements to ensure the investigation

got underway. The impractical alternatives illustrate the potential difficulties in

conducting an investigation at a remote location that has limited resources. Prior to

travelling to Palm Island, the investigators had limited information about the

circumstances concerning the investigation and the resources available at the time. In

contrast, Robinson was known to the investigators as being available and was not

involved in the incident.

124 Citations omitted. 125 With the exception, perhaps, of Steadman who had only just arrived. For that same reason, he was not suitable for providing local knowledge to the investigators.

55

117. The CMC Review was also critical of the role Robinson played in the investigation. The

CMC Review commented that Robinson’s role in the interviews was not just to

corroborate Kitching but he asked questions.126 This comment misconceives the role of

a corroborator in an interview. Historically, a corroborating officer had the role to verify

the version of events as contended by the investigating officer. However, technological

advances, such as tape and video recording devices, have more recently usurped this

role. In addition, the corroborator had the role of providing assistance to the interviewer.

Corroborating officers are expected to ask questions. A corroborator’s more passive

role allows them a more detached perspective. Corroborators frequently identify areas

of ambiguity or issues that have not been pursued or insufficiently addressed. The

interviews conducted by the CMC are illustrative of this practice.

118. I would expect the corroborating officer to participate in this way in an interview of a

witness. Although it was clearly stated by Kitching that Robinson was to sit in during

these interviews so he could understand what was said, it was never contended that

Robinson would not ask questions. I have considered the questions asked by Robinson

during the interviews and find nothing improper in what he asked.

119. I am satisfied Robinson only played a minor role in Hurley’s interview. However, had

the interview not been recorded, I would share the concern raised by the CMC Review

of potential bias that could properly be inferred. I have also carefully considered the

complaints of Pilot and Clay concerning their allegations of assault against Hurley that

was investigated by Robinson. I note at the time of this tragedy it appeared those

allegations had been finalised. It was not until the events following this tragedy that

evidence concerning these allegations suggested that the complaints may not have

been properly considered or pursued by Robinson.

120. I have given the comments raised by the Acting State Coroner and the CMC Review

concerning Robinson’s involvement careful consideration, in particular the decision for

Robinson’s participation. I accept these concerns are valid and should be pursued for

my consideration of any disciplinary action.

121. Webber explained Robinson’s inclusion on the basis that ‘he's a fairly experienced

officer, and secondly, because he had local knowledge, which certainly [Webber] and

others didn't have’. Kitching clearly acknowledges in his response to a question asked

by members of the IRT ‘that in hindsight and in an ideal world it would probably be

advantageous not to have had Robinson there’. Kitching further explains that he had

limited alternatives, a matter I have also considered during my assessment of the

evidence. I accept that the investigators had limited information about the death in


56

custody and did not from the outset place sufficient importance on ensuring the integrity

of the investigation was maintained by removing obstacles that could bring about the

perception of bias. I believe Kitching has failed in this regard, as has Webber, his

supervisor during the initial investigation.

122. Allegations involving a conflict of interest, if proven, could amount to a breach of

discipline or misconduct. I accept, as the CMC Review suggested, that this would be

dependent upon the nature and extent of the conflict. Robinson’s view that there was

no perceived conflict of interest would be relevant though by no means determinative. I

note that Robinson’s involvement was reduced to essentially administrative and/or

ancilliary tasks upon Williams’ arrival on Palm Island.127 In making my determination in

relation to this allegation relating to Webber and Kitching I have also considered my

findings with respect to Williams and Robinson.

123. I have had regard to the circumstances that prevailed at the time and Kitching’s

acknowledgement that, in hindsight, Robinson should not have been involved in the

investigation, and for reasons outlined above I do not propose to commence

disciplinary action against him. Notwithstanding, I am of the view Kitching should be

given managerial guidance.

124. In relation to Webber, I have had regard to the circumstances that prevailed during the

initial phase of the investigation, the limited information available and his supervisory

role to the investigators at the time; however, for reasons outlined above, I do not

propose to commence disciplinary proceedings against him. Notwithstanding, like

Kitching, I am of the view Webber should be given managerial guidance.

125. I accept that there are other instances where a perception of bias has been alleged.

Not every instance where a perception of bias might arise has yielded the same result

insofar as my decision is concerned. In my view, this particular complaint represents a

more significant instance and requires a different approach.

Allegation 2: Hurley Transporting Investigators

126. Both the Acting State Coroner and the CMC Review complained that Hurley drove

investigators from the Palm Island airport to Palm Island Police Station. They also

complained that Hurley drove investigators to the scene of the arrest of Mulrunji.

127. The Acting State Coroner commented:

127 Cf ibid 52.

57

It was inappropriate for the officer most likely to be under investigation to be

the person picking up the investigators from the airport.128


33. The investigation’s appearance of impartiality was further

undermined by the following conduct:-

• It was inappropriate for Hurley to meet the investigating officers

at the airport upon their arrival.129

129. The relevant Service policy was located in OPM s 1.17. OPM s 1.17 provided inter alia:

Coordination

ORDER






and impartially and the psychological welfare of individuals considered…


POLICY











128 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 129 Ibid 31.

58

Welfare

POLICY

Regional duty officers and regional crime coordinators should ensure that

where necessary the provisions of s. 20.1.8: 'Critical Incident Stress

Management' of the Human Resource Management Manual are instituted

and complied with. In this respect, liaison should occur with the relevant

human services officer and/or peer support officer to provide appropriate

assistance.

Since 2004, relevant Service policy was amended to significantly highlight and address

the issue of maintaining the integrity of an investigation.

130. The concerns raised in relation to this matter focus on the perception of bias created by

Hurley transporting the investigators. This is evident in the recommendation made by

the Acting State Coroner that the OPM should be amended to more clearly state the

need for officers involved in an investigation to consider the impartiality and the

perception of impartiality in the conduct of the investigation. Service policy at the time

of Mulrunji’s death imposed certain requirements to ensure that investigations were

conducted impartially, such as appointing investigators external to the station at which

the event occurred. However, Service policy did not address the concept of the

‘perception of impartiality’ which is akin to a ‘perception of bias’. This is not surprising,

as it would be difficult to definitively outline every activity that could raise a ‘perception

of bias’. Such an outline would only be limited by one’s imagination. I do note that, as a

result of this matter, policy has been amended to place greater emphasis on the

‘perception of impartiality’. However, the examination of the actions of the investigators

must necessarily be restricted to the policy that existed at the time and which provided

limited guidance on this issue.

Hurley Transporting the Investigators from the Airport

131. The CMC Review specifically stated:


expeditiously and impartially

…

Kitching ‘didn’t even think about’ the appropriateness of Hurley picking up the

investigation team from the airport, and suggested that there was no

alternative which patently was not correct. He failed to make any record of

59

the conversations during the car trip from the airport or subsequently address

the issue in his interview with Hurley.130

132. The same complaint was repeated in relation to Webber:




…

Webber did not consider at the time, or even acknowledge later, that is was

inappropriate for Hurley to collect members of the investigation team from the

airport and drive them to the police station.131

133. Mr Boe examined Webber in the inquest before the Acting State Coroner in relation to

the transport of officers by Hurley from the airport:

Boe: Just staying with the issue of perceptions of distrust, do you

think it was a good idea, at all, to have Inspector Hurley

pick you up from the airport?

Webber: Sorry?

Boe: Inspector - oh not Inspector Hurley. Senior Sergeant

Hurley, pick you up from the airport?

Webber: I don't actually - I can't recall whether or not he did. But

Boe: Well, he did?

Webber: If he did, I don't really have a problem per se with it, in the

sense that there are only a limited number of officers there.

Boe: There's people other than Hurley there?

Webber: But, in one sense, it actually took him away from the scene,

if you like.

Boe: Yeah, and be adjacent to his investigator?

130 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 166. 131 Ibid 165.

60

Webber: Well, he was going to be interviewed, in any event.

Boe: I know. I'm not talking about the interview. I'm talking about

the perceptions when that very small airport, which has

indigenous operators, you arrived to come and investigate

the police, and the very police officer you come to

investigate pick you up and drives you around the

community. Do you not think that that would cause some

sense of distrust as to the independence of the

investigation?

Webber: Possibly, yes.

Boe: And that should be avoided, shouldn't it? Fuelling distrust,

unnecessarily?

Webber: If it can be avoided, yes.

Boe: And it could have been here, couldn’t it?

Webber: I don't know.

Boe: You mention to Mr Callaghan that one of the reasons why

Mr Hurley never became a suspect was that there was no

evidence of an offence having been committed. Is that

correct?

Webber: Yes.

Boe: Did you not regard Mr Bramwell's allegations as evidence,

prima facie?

Webber: Mr Bramwell's allegations of course did not arise until the

Saturday.

Boe: Well, from that point?

Webber: No, not really. Because we didn't have any evidence as to

the cause of the death.132

134. The IRT questioned Kitching about this same matter. In that interview, Kitching stated:

132 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 742-3.

61

Mmm. What I might move to now is ah cause we'll come

back to that point but ah the issue of Senior Sergeant

HURLEY transporting investigators and dinner at his

residence. At page ten of ah the Acting State Coroner's

findings and at recommendation thirty-three, page ten I've

marked at paragraph three, it's the 3rd paragraph down,

the Acting State Coroner said it was inappropriate for the

officer most likely to be under investigation to be the person

picking up the investigators from the airport. It was a

serious error of judgment for the investigating team

including officers from Ethical Standards to be sharing a

meal at the home of that officer that evening. If a Police

Officer needs support it is not the task of investigators to

provide the support but to identify the need and delegate

someone else to provide it. Recommendation thirty-three

reiterates that at page 31, it says the investigation's

appearance of impartiality was further undermined by the

following conduct. It was inappropriate for HURLEY to meet

investigating officers at the airport upon their arrival. It was

inappropriate for HURLEY to drive the investigators to the

scene of MULRUNJI's arrest and it was completely

unacceptable for investigators to eat dinner at HURLEY's

house while the investigation was being conducted. There's

a lot of points there Senior but you're aware of what I want

to talk about next?

Kitching: Yes that's correct.

What we might do is take them individually and one by one.

Just firstly at page ten ah the Acting State Coroner makes

a reference including officers from Ethical Standards

sharing a meal at the home and I, I don't want to jump

forward out of logical sequence but was there any officer

from -

Kitching: No.

- Ethical Standards?

Kitching: That's entirely an incorrect statement. Ah Inspector

WILLIAMS was the only officer from E-S-C, Ethical

62

Standards Command and he did not arrive on the island

until the following day, Saturday the 20th -

Yeah.

Kitching: - of November.

Do you know when he left the island?

Kitching: I believe he left with us on the Sat-Saturday afternoon.

Yeah on the 20th U/I. We might take each ah in turn, the

first thing I want to talk about is inappropriate, the comment

that it was inappropriate for HURLEY to meet the

investigating officer at the airport upon arrival.

Kitching: Yeah.

The plane arrives ah Friday the 19th in the afternoon about

3pm. Is that about right?

Kitching: Um yeah -

A bit before?

Kitching: - that'd be about correct, yeah.

Um there's nine people that you've mentioned on the plane.

HURLEY and please tell me if I'm wrong, ah Senior

Sergeant HURLEY had communicated with ah Inspector or

at least Comco in Townsville. Had you had any discussions

with Senior Sergeant HURLEY prior to arriving on -

Kitching: No.

- the island?

Kitching: No.

You hop off the plane, what happens next?

Kitching: Okay. Well firstly I didn't make any contact with officers ah

or other persons on Palm Island that day. Like I just said I

never made any arrangements in relation to transport or

who was to pick us up from the airport and I, and I don’t

63

know who made those arrangements, I don't know. Ah this

issue was a logistical, logistical exercise, as I said there

was nine people ah who travelled from Townsville to Palm

Island that day which certainly required the use of at least

two vehicles and probably more than two trips to transport

everyone from the airport um to the Police Station. Now

you've gotta be aware that we, we took equipment for the

scientific officer and scenes of crime officers um plus some

um clothing and personal effects of TAC, TAC Crime

Officers who were going to stay for a couple of days while

this investigation proceeded. Um now police on, on Palm

Island were also required to continue with their operational

duties even around ah this tragic event and it's my

understanding there was only two police rostered that day

and that was ah LEAFE and HURLEY.

Mmm.

Kitching: Ah and this matter was impossible to resolve, ah it was

certainly out of my hands. I had no ah did not make any

arrangement in relation to that. I'm certainly ah at a loss to

explain if HURLEY and ah LEAFE or BENGALOO or

whoever was at the station that day who could pick us up

there was certainly no-one else there to conduct that

transport.

In terms of the logistics organising that transport do you

assume Detective Inspector WEBBER did that or?

Kitching: I don't know. I'd, I'd be, it'd be purely guessing.

Yeah.

Kitching: Somebody obviously contacted the officers who were on

that day who that was I don't know.

Have you spoken to anyone about it since?

Kitching: About how, how - why UI?

UI?

64

Kitching: No. No because that didn't um didn't affect any part of my

investigation. To this day I don't know who rung them and

organised, I was ah, I spent a lot of time organising flights

and persons and ah running up and down stairs here in

district office to organise the flights um and getting my,

getting my kit together to get over there in a hurry.

Yeah.

Kitching: Ah and I certainly had no part of that UI.

In terms of ah you arrived at the airport on Palm Island ah

Senior Sergeant HURLEY and is in one vehicle and

someone else in another vehicle. Is that right?

Kitching: There was and, and ah I was thinking about this this

morning I can't remember who the other person was. I don't

know whether it was LEAFE or BENGALOO or I don't know

but HURLEY certainly was there, yes.

Who did you ah, ah Senior Sergeant HURLEY ah you met

him at the airport?

Kitching: Yes.

Um who did you travel back to with?

Kitching: Ah again I thought about this, I think it was HURLEY, I'm

pretty sure it was HURLEY that took us back, again I may

be wrong. I'm pretty sure that I travelled in a police vehicle

with HURLEY because there was again um I think there

was myself and WEBBER and the um the ah ROBINSON

and the forensic coordinator who first wanted to travel back

so we could secure -

Yeah.

Kitching: - the scene so to speak or the Police Station so we could

commence an investigation. The vehicle was full, they're a

dual cab Hilux with a cage on the back and there was no

more room.

65

Do you remember any discussions ah between the time of

meeting Senior Sergeant HURLEY at the airport and back

to the Palm Island Police Station?

Kitching: Oh there certainly would have been discussions. You're

not gonna sit there in absolute silence but what those

discussions were I don't know.

Anything discussed ah about the death itself or ah the

circumstances of it?

Kitching: To my, to my memory no. Um I certainly had conversations

with HURLEY once I got to the Police Station because I

had to orientate myself about where things were. Those

conversations did occur before I commenced the official

interview but in any event I had to make some sort of, put

something in my mind about um how this incident

happened and put things into perspective so I could an

interview.

When HURLEY picked you up did you form an opinion as

to the appropriateness of that or did you have any UI?

Kitching: Didn't even think about that to be honest with you. It ah it's

something that didn't ah register with me um it didn't ah, I

didn't have any ah understanding of, I guess

understanding's not the word, didn't want to have any

opinion that it would be ah inappropriate at all because it

was, it was just a means of getting from one police position

to another which were obviously quite a distance apart in

terms of conducting UI.

In hindsight?

Kitching: Hindsight's a wonderful thing.

UI.

Kitching: Ah in the ideal world, ideal world UI somebody else but

again we're talking about Palm Island. I'm not talking about

places like Yarrabah or you know um Murgon or any of

those places where we can get other resources in quickly

by road, you can UI people there, this is Palm Island. You

66

cannot get resources to Palm Island promptly. And it was

shown during the ah the riots that subsequently tragically

occurred a week later. We had to fly in in helicopters

because you just have not got logistically you have not got

the resources on Palm Island to assist with most UI.

And besides the police on the island, there - is there

anyone else that could have assisted with any of the

logistics?

Kitching: Um again I don't know what the networks are over there

you know I suppose when you think that you know you've

got school teachers and and ah hospital workers and that

but we don't have contact with those people, we deal

directly through the police -

Yeah.

Kitching: - from over here. The networks are set up, set up on the

island.

Yeah.

Kitching: Um police obviously are educated and trained in that now

you know.

Yeah.

Kitching: They're the ones with those networks, they provide that

base for people like myself or yourself to go over there and

conduct enquiries and investigations. That's the, that's the

conduit of getting into those communities.

Just so we're clear for anyone else that hasn't been to

Palm Island or had that experience, there is no such thing

as taxis or any sort of infrastructure like that?

Kitching: Ah I, I don't know if there is taxis on Palm, I really don't

know but they certainly haven't got the infrastructure we'd

have in a community like this.

Yeah.

67

Kitching: And it's my experience in a lot of ah indigenous

communities and I've worked in a lot of them throughout my

service in, in far western remote sort of like ah areas of the

State and there's certainly none of those um logistical

resources in place. There's just -

Did you make any notes of ah anything ah discussions or

ah those ah conversations that you had either from the

airport or once you got back at the Palm Island Police

Station?

Kitching: There was nothing from the airport because as I said I don't

recall having any conversations with him in relation to this

matter from the airport. It was just a means of getting from

the airport to the Police Station.

While I'm there, how long would it have taken to get from

the airport to the ah Police Station?

Kitching: It's probably five or ten minutes.

Yeah.

Kitching: It's, you know it's a distance but it's not a long way. It's

certainly uncomfortable sit-sitting in a dual cab Hi-Hilux with

five of you in there but, but yeah getting back to your

question, yes I did commence notes. Those notes

commenced at 3:05pm on the 19th of November and this

information was obtained from HURLEY himself.

And we'll obtain a copy of them -

Kitching: U/I.133

135. Webber elaborated upon his testimony when interviewed by the IRT. In that interview,

Webber stated:

If there's anything else that you think of don't hesitate, we

can come back to that. Um the next um issue that I'd like to

bring up is um one where um on page ten of the findings

133 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station), 1 August 2007), Transcript Tape 2 [175]-[484].

68

again, recommendation 33. Ah it was inappropriate for the

officer most likely to be under investigation to be the person

picking up the investigators from the airport. It was a

serious error of judgement for the investigating team

including officers from Ethical Standards to be sharing a

meal at the home of that officer that evening. If a police

officer needs support it is not the task of investigators to

provide this support but to identify the need and delegate

someone else to provide it. Do you understand that

criticism?

Webber: I understand the, the criticism. Um I probably if I may deal

with that in, in two areas.

Yes.

Webber: Ah first in relation to UI, picking up the investigators from

the, from the airport.

Yeah.

Webber: Um just indicate that at no time on the Friday until I arrived

at, at the island did I have any conversations with Senior

Sergeant HURLEY. Alright, now no instructions were, were

given to my understanding that HURLEY was to pick us up

as, as such. There is also the impression conveyed by that

statement that we were actually there to investigate

HURLEY and that is in, that is incorrect. At that stage we

had no preconceptions about the circumstances of the

death, that is what we were there to investigate or who we

were there to investigate. And noted in her determinations

had been made about what we would find. And in some

respects I believe it would have been considerably even

more problematic subsequently if we'd actually left ah

Senior Sergeant HURLEY alone at the, alone at the scene.

Um so ah -

Do you know ah if anyone did make the conscious decision

to organise that ah transport or are you assuming that

Senior Sergeant HURLEY took it on himself to organise the

transport?

69

Webber: I'm actually assuming ah that Senior Sergeant HURLEY

actually ah, ah made that, made that decision that he was

going to come out there, there and pick us up. Um -

There were two vehicles?

Webber: I believe there would have been two vehicles, I think there

was about ten of us so there, there were two vehicles

involved so - I mean I'm not sure who else was going,

going to do the picking up if ah if he hadn't. Um and I, and I

reject the, the implication that because he actually attended

and all the rest of it that there's some um, something

necessarily improper about that. I believe that regardless

um the perceptions going to, perception is, is simply that,

that people can make whatever, whatever they want of any,

of any particular situation. Ah there are no taxis, there was

no other public transport or whatever, whatever on the

island. We had to get from there ah to the police station ah

as quickly as, as we possibly could.

What, then what the option have been if ah you weren't to

travel back with HURLEY?

Webber: Ah we probably would have had to have made ah two or

more trips. But in any event we either would have had to

have used one of the officers that was actually implicated if

you like in the actual investigation, be it HURLEY or one of

the other officers, or we would have had to have gone

completely, completely outside and attempted to ah get

some other government agency or somebody else to pick

us up.

Do you agree that you may have had a mind-set at the time

that this fellow died in police custody and that the police

who were last with him were people that would have the

most knowledge and would be able to assist that

investigation of, of how he may have died?

Webber: Well they're certainly, ah certainly the people that would, ah

would provide the, the first starting point.

70

Yeah. The, the Acting State Coroner talks about the

investigation's appearance of impartiality was undermined

by the fact that ah HURLEY met yourselves at the airport

upon their arrival.

Webber: I, I don't necessarily ah accept that. We had to meet at

some time ah be it, be it within the confines of the police

station or in the, or at the police station. We were, we were

completely open about ah, about what we, what we were

there to do. Ah we assembled an investigation team, a

forensic team and, and other members ah to go to the

island at, at short notice ah despite the fact that we had to

charter an aircraft etcetera, we were I think on the ground

and in the station within about a three hour timeframe.

On your way to the station in the police - did you travel with

HURLEY in the police vehicle?

Webber: Yes I did.

Who else was in that vehicle?

Webber: I can't re-remember now. I think it was KITCHING and ah,

and I can't remember who else. I know the vehicle was full

UI.

Okay.

Webber: I can't say who else but certainly the, the back of the

vehicle was loaded up with various forensic equipment

etcetera.

What did you talk about?

Webber: Ah what did we talk about? I don't think we spoke, don't

think we spoke um very much at all. Ah I think we - there

was conversation in relation to what we were going to do,

what tac crime, what tac crime would be ah, would be

expected to do. That, that we'd brought them across to ah,

to assist and take over the, take over the policing functions.

We also had some concerns about what effect ah when the

knowledge came out that someone had died in the

watchhouse, what effect that might have potentially in

71

relation to the ah, to the safety of the island and ah whether

or not there might be riotous behaviour etcetera which is

what, which is what occurred, ah occurred subsequently.134

136. The CMC Review complained:

In the CMC’s view, the integrity of the investigation was compromised when

Hurley, the officer most likely to be under investigation, met the investigation

team at the airport and transported them to the police station.

…

The evidence does not suggest that any consideration was given to how the

investigation team would be transported once they arrived on Palm Island,

and when Hurley met the team at the airport, whether it was appropriate for

Hurley to transport the investigation team.135

137. The CMC Review advanced alternatives for transporting the investigators. They

nominate two off-duty officers, Tonges and Steadman, as being able to perform that

role. The CMC Review suggested that, at the very least, it would have been preferable

for the officers responsible for the investigation to have travelled in the vehicle with

Leafe rather than with Hurley. The CMC Review added that the investigation’s

appearance of impartiality was further compromised by the failure of any officer to

make a record of the conversation which occurred during this trip.136

138. The CMC Review did not advance any particular reason why Hurley was ‘the officer

most likely to be under investigation’.137 Webber stated that the investigators had not

concluded that Hurley was under investigation. 138 Hurley does not appear to have

thought he was (or would be) the subject of any investigation.139 The information then

available to the investigators would certainly lead to a conclusion that Hurley was ‘a

person of interest’140 in the investigation. However, in the context of the information

then known to the investigators, all officers on the Island were potentially persons of

134 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station), 2 August 2007), Transcript Tape 1 [668]-[808]. 135 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 64. 136 Ibid. 137 In this statement, the CMC appear to have adopted the language of the Acting State Coroner; see Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006). 138 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station), 2 August 2007, Transcript Tape 1 [697]-[700]. 139 Hurley’s interviews with investigators on both 19 and 20 November were given voluntarily. Hurley was not given a direction to answer questions. 140 This was the term used by the IRT; see, eg, Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 15.

72

interest. The CMC Review’s conclusion appears to assume that the investigators knew

who had been involved in the detention of Mulrunji and, more importantly, that some

aspect of that detention was critical to the cause of death.

139. The circumstances actually known to the investigators were significantly less. The

investigators were tasked with investigating a death in custody knowing that the

deceased had struggled with Hurley prior to being placed in a Watchhouse cell. Very

little information about this struggle was known to the investigators. The fact that the

struggle occurred was sufficient in itself to suppose Hurley was a person of interest in a

general sense. However, at that time, there was no evidence available to the

investigators for them to determine that the struggle was linked to Mulrunji’s death. In

reality, there was potentially a wide range of different scenarios that could account for

Mulrunji’s death. It was inherent in maintaining an open mind in the investigation of a

death in custody to consider all reasonable alternate explanations and allow the

evidence, as it became apparent, to guide the direction of the investigation and not to

prematurely discount any of these possibilities.

140. It appears the later allegation that Hurley killed Mulrunji exacerbated the concerns over

the propriety of him transporting the investigators. It is inappropriate to consider this

information in assessing the conduct of the investigators. The suggested alternatives

make it clear that the CMC Review has relied on hindsight in its assessment. Leafe,

one of the alternatives presented by the CMC Review, had been intimately involved

with the detention of Mulrunji at the police station. In particular, he assisted in physically

removing Mulrunji from the hallway to the cell. Another of the alternatives, Steadman,

later proved to be a crucial witness. Importantly, he was present near the police station

and saw some of the events that would later come under significant scrutiny. Tonges

was, for a time, implicated in the events, though it seems mistakenly. He understood

that he was to be interviewed as part of the investigation.141 None of these officers were

ultimately implicated in the death of Mulrunji. Nevertheless, the investigators were not

in a position to make those distinctions at that early stage. The differential

consideration of Hurley’s involvement, which the CMC Review advocates should have

informed the investigators, shaped their view of the appropriateness of the investigators

travelling with him.

141. It appears neither Kitching or Webber turned their mind to who would pick them up from

the airport. An investigation of this type requires considerable logistical planning. Given

the immediacy expected of investigations into deaths in custody, the investigators did

not have the opportunity for meticulous planning of every detail. It is regrettable that the

141 Detective Inspector Ken Webster, Interview with Acting Senior Constable Benjamin Tonges (Townsville Regional Police Office, 8 December 2004), Transcript 7 [221]-[223].

73

planning did not address this aspect. Even so, I consider this failure resulted from the

urgency of the situation. I do not intend to sanction either officer in relation to this issue.

142. It is also evident that the investigators did not fully consider the community’s perception

of Hurley transporting them to the Police Station. Whether such a perception would

have arisen had the cause of death been different is difficult to assess. In any event, I

note that Service Policy as set out above did not address the perception of bias. It

required the investigators to act impartially but did not address whether they should be

seen to act impartially. The current policy as amended provides stronger guidance on

the perception of bias to investigators faced with a similar situation.

143. I see little value in re-emphasising to Kitching and Webber the importance of

maintaining the perception of impartiality during investigations. Concerns of this nature

have been raised in different forums, as well as being addressed through changes to

the OPM. Moreover, I do not consider it appropriate to sanction officers in relation to

the comments made by the CMC Review that the investigation’s appearance of

impartiality was further compromised by the failure of any officer to make a record of

the conversation which occurred during this trip. Rather than agreeing with the

contention that the appearance of impartiality of this investigation was further

compromised through the failure to take notes, I would instead state that any damage

caused to the appearance of impartiality in this investigation would have been mitigated

by appropriately recording any conversations had during the transport of the

investigators.

144. On the evidence before me, details of the conversation during the journey between the

airport and the Palm Island Police Station have not been clearly established. However,

there is no suggestion of any discussion of significance that might have compromised

the investigation. It would have been preferable if the conversations between Hurley

and the investigators were recorded while they were being transported to Palm Island

Police Station.

145. In the absence of supporting evidence that Kitching or Webber arranged or were a

party to making these arrangements with Hurley or any of the officers at Palm Island

Police Station for transport from the airport on their arrival, and for reasons stated

above, I do not consider any disciplinary or managerial action is warranted.

Hurley transporting the Investigators to the scene of the arrest

146. The investigators attended the scene of Mulrunji’s arrest with Hurley. Both the CMC

Review and the Acting State Coroner took issue with aspects of this activity. The Acting

State Coroner said:

74

The investigation’s appearance of impartiality was further undermined by the

following conduct:-

• …

• It was inappropriate for Hurley to drive the investigators to the scene

of Mulrunji’s arrest.142

147. The CMC Review said:

The CMC does not dispute the fact that Hurley should have been taken by

the investigators to the scene of the arrest (though to minimise any adverse

perception it probably would have been preferable for the investigators or

someone else to have driven the vehicle). We are concerned that none of the

officers present thought to electronically record or take detailed notes of the

interview which occurred during the trip.

…




Hurley should have been treated as if a suspect. The evidence does not

suggest there was any reason that recording the interview with Hurley would

not have been practicable.

Further, the OPM provided that members, who may be required to give

evidence of conversations, events or occurrences, should compile relevant

notes at the time of the conversation, event or occurrence or as soon as

practicable thereafter. The officers would have been aware that they may

have been required to give evidence in relation to this conversation, yet they

failed to take appropriate notes, as required by the OPM.

If the purpose of the trip was, as stated by Kitching, to attempt to identify all

the circumstances leading up to Mulrunji’s death, one would expect that

some kind of record would need to be made of what was discussed. While

photographs were apparently taken and Kitching said he made notes of times

and places, it is difficult to understand how the investigators purported to

identify the relevance of the photographs without making a detailed record of

the explanation given by Hurley. Further, it is unclear how the investigators

142 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 31.

75

thought they would be able to rely on any evidence Hurley provided during

this trip, without making a record of the conversation.143

148. The CMC Review does not seem to take the same issue as the Acting State Coroner

with the fact that Hurley drove the vehicle back to the scene. On this aspect, I agree.

Hurley knew the way. He was authorised to drive the vehicle. Even if he was a suspect,

a point I do not concede, there was no practical reason why he could not drive. I note

the reference to ‘adverse perception’ and defer to my earlier statements on this

issue.144 I do not see any great distinction turning on whether Hurley drove the vehicle

or was a passenger. Hurley’s presence as a passenger in the vehicle may also give

rise to a similar ‘public perception’. This is simply a no-win situation, especially in a

small community such as Palm Island.

149. The view of the CMC Review that ‘Hurley should have been treated as a suspect’ in a

homicide is clearly untenable. I have elsewhere outlined the relevant provision of the

Police Powers and Responsibilities Act 2000 and the reasons why the CMC conclusion

is inappropriate.145 I do not intend to repeat them here. A more cogent argument might

be mounted that Hurley was suspected of committing an unlawful assault based on the

interview with Roy Bramwell earlier that morning. The difficulty with this proposition is

that it is clear that the investigators were not investigating a seperate assault. They

were attempting to ascertain the circumstances leading up to the death of Mulrunji.

Moreover, insofar as Bramwell’s allegations were concerned, it is clear that the

investigators did not accept them as credible. There was good reason for reaching this

conclusion. The re-enactment conducted with Bramwell made it apparent that he could

not have seen what he suggested. The most generous description of his evidence was

that Bramwell was inconsistent.146 By contrast, the Crown Prosecutor at the Hurley trial

described the evidence Bramwell gave at the inquest as bordering on the farcical.147

That the investigators formed a view more in keeping with the Crown Prosecutor than

the Acting State Coroner is not unreasonable. If the investigators had dismissed the

allegations as specious, a fact they later affirm,148 then there could be no ‘positive

apprehension’ that Hurley was a suspect in any indictable offence, let alone a

homicide.

143 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 68-9. 144 See above, [142]. 145 See above [85]ff. 146 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006). I note that the Acting State Coroner accepted his evidence as credible. 147 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395. 148 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Tape 1 Transcript [234]-[235]

76

150. The IRT interviewed Webber and questioned him about this incident. In that interview,

he stated:

The Acting State Coroner al-also says that it was

inappropriate for HURLEY to drive yourselves to the scene

of MULRUNJI's arrest, ah arrest in ah Dee Street. What

have you got to say about that?

WEBBER: Well I, I am complete bemused by that. I'm, I'm not sure

how we ah conduct an investigation without actually taking

people and actually assessing what, what the scene a-

actually is and obviously ah HURLEY was the ah, HURLEY

was the person that could show us exactly where

everything occurred, where the arrest was made etcetera.

No-one else could do that, he simply had to ah -

It was either him or BENGAROO I might add.

WEBBER: Or BENGAROO who, who was similar, who was similarly

involved and, and obviously um the difficulties in relation to

conversing with ah, with Lloyd BENGAROO ah we'll

probably discuss shortly. But I believe that HURLEY was

the, HURLEY was certainly the best person to show us

where it occurred and what he, what he did and I believe

that the issues in relation to the conduct of that drive if you

like was subsequently ah subsequently canvassed.

Was ah HURLEY tape recorded by KITCHING at this time

as a result of going to the scene and, and recanting or

recounting his story?

WEBBER: Ah I can't recall to tell you the truth. I don't believe he was

but ah I can't recall. I know it took place over, over a period

of you know some, some time.149

151. The IRT interviewed Kitching in relation to the journey to, and the events at, the scene

of the arrest. The CMC Review summarised Kitching’s statements:

Kitching said the purpose of the trip was to enable him to identify everything

he possibly could from the moment Mulrunji came into police custody until the

149 Ibid Transcript Tape 1 [810]-[843].

77

time of his death. Kitching said at that time, there was absolutely no

indication of what caused Mulrunji’s death, so he had to try to identify as best

he could all the circumstances leading up to that.

Kitching said he certainly remembered having a conversation in the vehicle

but he did not tape record the conversation because he’d already obtained a

full version from Hurley on tape.

Kitching also said he did not make any notes of the actual conversations and

agreed with the IRT’s comments that he just recorded times and places.150

152. For accuracy, it is useful to reproduce Kitching’s comments directly from the interview.

In that interview, he stated:

Clay I think her name was. Um while I think of it, the travel

to Dee Street and the examination of the arrest scene for

want of a better term, you went on that trip or not? Is that

Detective Inspector -

Kitching: No I did that.

You did that. Ah Senior Sergeant HURLEY drove?

Kitching: He drove.

Who else was in the vehicle?

Kitching: Ah TIBBEY, senior crime officer and I, I don't even recall

Inspector WEBBER may have been with me I'm not sure. I

think it might have been just myself and TIBBEY.

And HURLEY?

Kitching: HURLEY.

On the 19th?

Kitching: No.

On the -

Kitching: It was the 20th.


78

Yeah. Ah Detective Inspector WILLIAMS?

Kitching: I'm not sure. I don't know what WILLIAMS and WEBBER -I

don't think they come with me on that trip.

Do you remember what time that was?

Kitching: Ah okay 11:20am, this is from my statement, I'm reading

from page five.

Uh huh.

Kitching: Um, ah paragraph number 29, about 11:20am.

I'll just interrupt you there, if it's there that's all I'll need to

do.

Kitching: Yeah.

I've got a copy of UI.

Kitching: It indicates -

- UI.

Kitching: - indicates that there was HURLEY, WEBBER, WILLIAMS

and TIBBEY so we're all there when UI.

Yeah. So in terms of ah that trip and any conversations had

there, do you remember any conversations in the vehicle at

the scene?

Kitching: Certainly. The purpose of that trip with HURLEY was to

identify everything I possibly could surrounding the ah

arrest from the moment that the um come

into the ah custody of police right up until the time of his

death. Um because as I said at that time there was

absolutely no indication what caused this person's death.

And I had to ah try and identify that best that I could all the

circumstances, or all knowledge of UI leading up to that.

That included enquiries I'd made in Palmer Street I believe

where I ended up taking a statement, UI was the only sober

person in the house. Ah I spoke to a number of other

persons there to find out what he had been up to the day

79

before, ah what his demeanour was, where he was going,

what his actions were.

The ah, did you think to tape record any of the

conversations in the vehicle with Senior Sergeant

HURLEY?

Kitching: Not - no not at that time because I'd already ob-obtained a

full version from him on tape. Um I certainly wanted, my

main focus was to get photographs of the scene as it was

at the time while it was fresh in his memory for the purpose

of the Coroner so he could fully understand the

circumstances later on. Um as I said at the time we didn't

know what caused the death.

Uh huh.

Kitching: So I was trying to get as much information as I could in the

ah relatively short period of time that I was there on the

island.

Any notes that you would have taken of those

conversations ah at that time would be in this?

Kitching: Yes. I didn't take actual notes of I don't believe of that.

You just recorded times and places?

Kitching: Yeah. Um I'll just have a look here UI. Yes I've got no notes

between, I've got a note here 11:30am when I spoke to

Margaret HOLMES so it was wasn't Clay, it's Margaret

HOLMES, she was the lady that was too intoxicated to

speak to. So that was whilst I was conducting those

enquiries.151

153. Kitching stated that the main purpose of the trip with Hurley was to identify everything

he possibly could from the moment Mulrunji came into police custody until the time of

his death. I do not understand this to suggest that he was undertaking a further

interview of Hurley. Hurley identified the route adopted during the trip and Kitching

made a number of inquiries with residents in the area in an effort to locate potential

151 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 3 of 3 [314]-[426].

80

witnesses. He made notes in his notebook of the photographs taken and the people he

spoke to. Hurley’s presence was to assist, as a witness, ‘to get photographs of the

scene as it was at the time while it was fresh in [Hurley’s] memory’. 152 This was

consistent with the inclusion of Tibbey, a police photographer, in the party. The notes

made by Kitching are a common means of recording an aide memoir to assist him to

identify what the photographs depict. This is supported by his comments in the

interview where he states:

Kitching: All, all those people and, and as well as that ah when,

when we went out and I took the ah scenes of crime officer

with me to photograph the areas where the initial arrest

took place ah where he walked past and the allegations

were that he'd made ah a comment to BENGAROO down

Dee Street um whilst we were in those areas I certainly

made enquiries with the neighbours around there, that's

where I identified I think it was Ed UI, um spoke to her,

pulled her in and given an interview. While I was there I

identified another person by the name of -

Clay.

Kitching: Who sorry?

Clay was it UI?

Kitching: A young girl, she was a young girl but she was very

intoxicated.153

154. Consequently, it is not surprising that Kitching limited himself to recording only the time

and places where photographs were taken in relation to Hurley’s observations. The

purpose of him attending the scene of the arrest was not to conduct further interviews

with Hurley but rather to document the scene of the arrest. It is clear that the CMC

Review considered the transport to the scene to be an interview. On this point I

disagree. I accept that the purpose of Kitching attending the scene was to document

where the arrest had occurred and to identify further witnesses.

155. The CMC Review made a further related complaint:

Failure to take the PLO to the scene

152 Ibid [405]. 153 Ibid [287]-[306].

81

More importantly, we consider that the PLO should also have been taken to

the scene (separately to Hurley), as he too was involved in Mulrunji’s arrest

and could have provided further evidence to add to or compare with what had

already been provided through the formal interviews. It is difficult to see why

in a serious investigation such as this, the investigators would not take this

opportunity to obtain further or corroborating evidence. The IRT itself states

‘not to revisit a scene at some stage with a witness in these circumstances

would have bordered on the incompetent’.

The OPM emphasised the importance of obtaining comprehensive

statements from witnesses at the earliest practicable opportunity. Webber’s

comment about Hurley being the best person to take them to the scene due

to the communication difficulties with the PLO highlights, at the very least, a

deficiency in the investigation in that suitable steps were not taken to solve

any communication problem. It also raises a question of whether the PLO’s

evidence was regarded as equally important as Hurley’s.154

156. I do not accept the failure to take Bengaroo to the location of the arrest is an adverse

reflection on the investigation. Hurley’s version of the arrest of Mulrunji was

corroborated by a number of civilian witnesses. Furthermore, Bengaroo had already

corroborated Hurley’s account when interviewed and had demonstrated he was reticent

to be involved in the investigation. It is difficult to see any real purpose in publicly

exposing Bengaroo when it seems he could add little if anything to the inquiry given the

limited time available to investigators. Bengaroo could later be shown the photographs

taken at the scene of the arrest of Mulrunji and asked to comment upon them if it was

considered necessary. I note the CMC adopted this approach in their investigations.155

With this in mind, I find it inconsistent for the CMC Review to assert that Kitching

should have taken Bengaroo to the scene of the arrest when it would appear the CMC

investigators did not consider this to be necessary.

157. After consideration of all relevant material concerning this allegation, I consider the

actions of Webber and Kitching were well intended and appear to be operationally

sound. I have carefully considered the failure to record conversations enroute from the

airport, the subsequent visit to the scene and the explanations provided. For the

reasons set out above, I do not propose to commence disciplinary action or provide

managerial guidance against either officer.

154 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 69. 155 Detective Inspector Ken Webster, Interview with Lloyd Chester Bengaroo (Townsville Regional Police Office, 8 December 2004), [335]-[471].

82

Allegation 3: Dinner at Hurley’s Residence

158. Both the Acting State Coroner and the CMC Review criticised Webber and Kitching’s

actions in relation to sharing a meal at Hurley’s residence. The Acting State Coroner

said:


the person picking up the investigators from the airport. It was a serious error

of judgement for the investigating team, including officers from ethical

standards, to be sharing a meal at the home of that officer that evening. If a

police officer needs support, it is not the task of investigators to provide this

support, but to identify the need and delegate someone else to provide it.156


33. The investigation's appearance of impartiality was further

undermined by the following conduct:- …

• It was completely unacceptable for investigators to eat dinner at

Hurley's house while the investigation was being conducted.157

160. The CMC Review commented that the ‘main issue of concern’ was that it was

‘inappropriate for the investigating officers to be associating informally with someone

who should have been treated as if a suspect’,158 and that such association would be

likely to impact upon the perceived impartiality of the investigation.159 The CMC Review

concluded:

While clearly the planning was inadequate, the CMC believes that this was

far less important than the officers’ actions in associating informally with

Hurley. If, for whatever reason, they had found themselves with practical

arrangements that were less than ideal, it was still Webber’s responsibility, as

the officer responsible for the investigation, to ensure that such

circumstances did not impact on the impartiality of the investigation.160

161. The CMC Review supported its criticism by advancing a number of alternatives to

eating at Hurley’s residence:

156 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 157 Ibid 31. 158 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 77. 159 Ibid 77-88. 160 Ibid 77.

83

In fact, a number of options were available to the investigation team. We note

that other members of the investigation team were able to make

arrangements for meals. As suggested by the IRT, ‘Webber could have

asked other officers to make these arrangements or could have asked senior

officers for support’. Meals could have been arranged by Tonges, Steadman

or any of the officers present on Palm Island not involved in the investigation.

Robinson himself had food available that he had brought from Townsville that

day, which he could have cooked at his own house and arranged for Webber

and Kitching to eat elsewhere than at Hurley’s residence.161

162. The CMC Review refutes the assertion that it was appropriate for Webber and Kitching

to eat at Hurley’s because they had already obtained a version from Hurley, suggesting

that the investigators should have known that further interviews may have been

necessary.

163. The CMC Review concluded:




…

Webber gave no thought to – and did not accept – the inappropriateness of

the investigators’ socialising with Hurley by having dinner at Hurley’s

residence, which clearly damaged the perception of impartiality of the

investigation. He failed to take any of the available alternatives.

…


expeditiously and impartially

…

Kitching suggested that there was no problem with his attendance at Hurley’s

residence to eat a meal. He failed to recognise the damage to the perception

of impartiality of the investigation. He also failed to take any of the available

alternatives.162

161 Ibid 78. 162 Ibid 165-7.

84

164. The IRT interviewed Kitching in part about the meal shared at Hurley’s residence on 19

November 2004:

In terms of meals -

Kitching: Mmm.

- that ah Friday evening would have been the first meal you

would have had?

Kitching: That's right since ah the Friday morning so it was getting ah

very late in the night by then. We'd worked ah throughout

the, out the afternoon and into the night. Ah I think it was

throughout oh going into the night once I'd finished the bulk

of the interviews um Detective Sergeant ROBINSON

indicated that he would ah go and prepare a meal for us for

that night. As you rightly said we hadn't eaten since that

morning, early in the morning. Um he left and I had no

knowledge of where he went or what he what he did do that

- now I don't know if you've been to Palm Island, the set up

on Palm Island you've got the Police Station and directly

opposite that or adjacent to that is the police complex,

residential complex which is all encompassed within a ah

wire fence. Now all, all the residence are there, they're not

placed throughout the community like in other areas, ah

indigenous community, Palm Island that's, that's the way it

is. Now he left about ten o'clock that night um we got a call

I think it was by intercom or on the phone to say that he'd

prepared a meal. It was at that time that I was advised the

meal was at HURLEY's place, he'd ah prepared the meal

or taken the meal to HURLEY's residence. Now why that

occurred I don’t know um I can only assume that

ROBINSON, well I've been told by ROBINSON that he was

on - because he was in Townsville at the time, UI he was

preparing his grocery order to take home. He never did that

because he travelled back with us. Ah I can only assume

from that that he had no groceries in his house, that's a

matter unrelated to me, I don't know. Ah so the first time I

found out we were eating at HURLEY's place was ah about

ten o'clock, 10:30 that, that night. Ah I finished work about

10:30 that night, went to HURLEY's house, um we ate a

meal ah and from there ah we then left and we went to the

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unoccupied residence ah Inspector WEBBER and I where

we camped for that night.

Just while we're there um 10:30 you go to Senior Sergeant

HURLEY's residence, who's ah there?

Kitching: Myself, ah Inspector WEBBER, ROBINSON, HURLEY,

that's it I believe.

HURLEY's partner?

Kitching: No I don't think she was there.

Sergeant LEAFE?

Kitching: He certainly didn't eat with us. Um, ah I believe he came

over for a very short period of time to introduce his wife

cause she was a policewoman too, very heavily pregnant.

He introduced his wife to Inspector WEBBER and I. They

wouldn't have been there for five or ten minutes, a very,

very short period of time um but yeah there was certainly

um -

Do you remember what you had to eat?

Kitching: Wouldn't have a clue. Spoke about that recently I don't

know. It wasn't much, I can tell you it was a, a small slap-up

meal that we had to get us through the night and I don't

recall what we ate, no.

It was in the dining room of the residence?

Kitching: No. We actually sat and ate in the loungeroom because

there was no room in the dining of the residence. They're

small room type residences that ah, it was a small room

type residence that normally ah a government residence

with police residing. There was no room in the house. We,

we sat on the edge of a lounge chair and ate our meal on

our laps.

Ah do you remember what, what time you finished the

meal?

86

Kitching: Oh I don't recall. No, but we certainly weren't there long.

We may, may have taken an hour to consume the meal

and leave by the time it was dished up. I, I don't know I

would be purely guessing.

Do you remember who was left at the residence when you

left -

Kitching: No.

- the place with Inspector WEBBER?

Kitching: When Inspector WEBBER and I left I don't know whether

ROBINSON had already gone, I don't know.

When you went to sleep in the ah P-C-Y-C residence, did

you bring a swag with you or did -

Kitching: No.

- someone provide a mattress for you?

Kitching: Ah there was ah - we went over there um we had ah there

was just a mattress on the floor and we - I don't know

where they came from, why, ah why they were there but we

were just told that we could use that residence and there's

a mattress over there and there's certainly showers.

Someone provided us with a towel so we could have a

shower, I don't know whether that was ROBINSON or

HURLEY or who I don't know. Somebody provided us with

a towel. We had a shower. I recall I had some, a small

amount of ah consumables with me but um, um Mr

WEBBER was actually provided a toothbrush by, by one of

the investigators UI. That's, we had nothing with us for that

and ah we roughed it that night as we needed to do to ah,

to get this investigating conducted.

Before we go any further, Friday night ah 2004, 19th of

November at Palm Island, any other options available to

you to have a meal?

Kitching: No. There is absolutely nothing on Palm Island where you

can get a meal at all. Ah outside of business hours once

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shops are shut that's it. There's no ah takeaway, there's no

shops, there's no, there's only one community store on

Palm Island and that's certainly shut, I don't know what

time in the afternoon but it's certainly well and truly before

dark.

And that is the takeaway store, it does everything doesn't it,

as I -

Kitching: It does everything.

- understand it.

Kitching: It's a one-stop shop, it has everything. Ah there's absolutely

nowhere on Palm Island to, to get food or, or anything.

Is there a motel or a hotel on Palm Island?

Kitching: There is a motel on Palm Island. Um it's right beside the ah

police establishment. Now I don't know um UI to be honest

with you but I know there's one there, I've never been to it.

Um do you know whether any attempts were made

whatsoever to try and ah obtain accommodation there?

Kitching: No I don't. I doubt they were, I certainly didn't make UI.

You've never been into the place, you don't know what the

quality of it is like or anything like that?

Kitching: Definitely no idea.

Okay.

Have you heard anything about it?

Kitching: Ah yeah. I've heard that it's a, it's been described as a flea

bitten place but that's ah a terminology used by, by the

government employees that have stayed over there, not

police um and probably for that reason there's the police

never UI. Um but my personal experience, no I don't know.

Um in terms of ah it's it would be rare that police went to

Palm Island and stayed overnight, is that true?

88

Kitching: Certainly. I've ah I have been there a couple of times

before in relation to criminal investigations but certainly

flown in and out the same day. I had never camped there

before.

And the only other possible place to stay would be the

Queensland Health facilities at the hospital?

Kitching: I'm not aware of what arrangements are there or what

facilities they have, I don’t know.

Yeah okay. Um breakfast the next morning on the

Saturday?

Kitching: I don’t think we had any to be honest. I don't know what I

did. I think I may have got a ah a pie I think from the shop

sometime during mid morning.

Yeah….

Do you recall any conversations at HURLEY's residence

about the incident or death itself?

Kitching: No. Um at the time that we'd ah eaten at HURLEY's place I

would have already conducted a full record of in-interview

with him, obtained, obtained his full version of the incident

itself and I certainly ah don't recall having any conversation

in relation to that. That issue had been done at that stage

and I intended to continue my enquiries the next day with

other witnesses and, and, and people. Um so yeah there's

certainly um no discussions to my knowledge in relation to

the actual incident itself.

Just so I understand it, there's ah the Senior Sergeant's

residence, there would have been a residence for Detective

Sergeant ROBINSON?

Kitching: Um again from memory I'd have to I could get photographs

and show you but there's HURLEY's residence and then

there's barracks that go behind it. Now how many barracks

are there I don’t know. There could be four, there could be

six, ah they're upstairs, downstairs type, type thing. Now at

that time there'd been two new residences placed, that

89

were actually put into the yard or it used to be the yard of

HURLEY's residence. Now one of those residences was

occupied by LEAFE, Sergeant LEAFE who I had never met

before until I went over there um and the other residence is

the one we stayed in which I believe was built for the

purpose of the new P-C-Y-C Sergeant there.

Yeah.

Kitching: Um the place is full, there's hardly a piece of grass left.

Ah Detective Sergeant ROBINSON at the inquest and this

is from my memory mentioned something about having a

beer at HURLEY's residence.

Kitching: Yeah.

Did you have any alcohol?

Kitching: Yes I did. I ah I certainly had a beer there.

Did everyone there consume alcohol?

Kitching: Ah I believe they would've. Um certainly myself and Mr

WEBBER would have had a beer, I don’t know whether the

others did. I would imagine HURLEY and ROBINSON, I

don’t know. I certainly had a beer, there wasn't many, we

were hardly there for long maybe an hour having a feed,

then we left.

You'd finished duty for the day?

Kitching: Yes I finished at 10:30 that night we finished.163

165. Similarly, Webber commented upon this matter when interviewed by the IRT. In that

interview, Webber stated:

Okay. Um the Acting State Coroner also ah was critical and

said it was completely unacceptable for investigators to eat

dinner at HURLEY's house while the investigation was

163 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 2 [547]-[748]; [792]-[851].

90

being conducted. Were you a participant in dinner at

HURLEY's residence that night?

Webber: Yes I was. Ah I'm not sure, I'm not sure whether I was

actually um, phrase it exactly as dinner which seems to

carry the connotation that we were sitting down to a three

or four course, three or four course meal and ah, and

having glasses of, glasses and bottles, bottles of wine. Um

certainly ah the situation was that ah KITCHING and I from

memory we'd been working up until ten or shortly thereafter

I was still ah, I was still involved in, in various ah paperwork

and checking emails etcetera and I think ah ROBINSON

said, invited us to, to come to his place for, for a meal ah

because we hadn't eaten sort of at that point in time and it

was at that point I think he, he left to, to prepare something

ah and then subsequently returned and I think it was

around about 10:30 we left the station and went over and it

was only at that stage that actually found out that ah

ROBINSON had actually prepared the meal at ah, at, at

HURLEY's residence ah which is located in the police com-

compound and adjacent to the ah, to the other police

residences there. Ah if I can recall correctly the meal was

just something that had been thrown together in a frypan

and ah or in a saucepan. I think we had a, had a beer.

Do you recall what the meal was?

Webber: Not, not really. I think it was some sort of ah rice or, or, or

stir-fry or something. Ah as I say it wasn't anything to ah, to

write home about and, and to ah, to make a permanent

note of. Um but obviously ah we, we, we were hungry, um

we had something to eat, um I mean ah we had no time to

prepare resources or anything like that, KITCHING and I

had both actually slept on a mattress on the floor of an

unoccupied unit that night. Ah we'd had nowhere else to

eat and I just make the point ah I'm not complaining it's just

a fact of life, but certainly I didn't have any breakfast or, and

I'm not sure that KITCHING did. Ah but I had no breakfast

or lunch the following day until we actually returned to

Townsville on that afternoon. I also had no clothing to wear

and had to borrow a shirt from KITCHING and it has never

91

been suggested to my knowledge that we actually

discussed anything ah during the investigation improperly

with, with um, with HURLEY at that time. But also one, one

of the things I want to make of particular note is that at the

time that that had occurred we'd already interviewed and

recorded ah both HURLEY, BENGAROO and, and UI had

already been interviewed electronically ah and ah their

statements recorded on tape. And as had the majority of

the other ah, the other witnesses in-involved.

BRAMWELL hadn't been interviewed by then had he?

Webber: No. He was, he was the one, principal one as I say

subsequently that ah caused us some aggravation…

Okay. Now if I can just take you back to the dinner. You

said that you had a beer that night?

Webber: Yes I believe so.

How many beers did you have?

Webber: I think only one.

Okay. What was it?

Webber: Oh -

Like a stubbie or a?

Webber: Yeah. No I can't recall what it was.

And do you recall where that came from?

Webber: No I don't. I don't know if ROBIN, I don't know if

ROBINSON brought UI.

Did you pay for it?

Webber: No. Um no certainly not.

Just a couple of quick questions. Um the meal there was

Detective Sergeant KITCHING, Detective Sergeant

ROBINSON, yourself, who else at the residence at the

time?

92

Webber: Ah well there was certainly the, certainly the four of us

there. I have some recollection that somebody else come,

come along at, at one point in time. Um UI.

Sergeant LEAFE?

Webber: Yeah. He may, yeah Sergeant LEAFE and I think his wife

may have come along ah at some, at some point. Ah I

think, think more because his wife was actually pregnant or

whatever and ah because I was the senior officer on the

island and all the rest of it and he'd only been there a short

time. Ah he wanted me to do some, I think we actually

discussed something in relation ah just to welfare and

pregnancy and what she, what she was going to do as far

as ah, ah medical services or whatever and where she

wanted to have the baby and that sort of thing. So there

was a very brief conversation just basically ah UI and, and

they went on their way and I think we ah re-returned to the

ah, to the unit.

Senior Sergeant HURLEY was there?

Webber: Senior Sergeant HUR - I'm not sure if he was, what part he

actually played in that conversation but he, he was certainly

in the, in the residence.

Senior Sergeant HURLEY's partner?

Webber: No.

Anyone else that you recall?

Webber: Ah no just ROBINSON and KITCHING.

Do you recall how long you would have been at HURLEY's

residence?

Webber: Oh I, I doubt I suppose maybe an hour approximately.

What did you think of the ah criticism that a senior officer

in, in charge of an investigation was at the ah um residence

drinking alcohol with HURLEY in hindsight now?

93

Webber: Um I accept that from a, from a, ah from a perception-wise

if you want to be very um, I suppose ah very clinical about

it and say alright well th-this shouldn't have happened and

all the rest of it but you have to look at it both in the

logistical sense ah of the logistics and all the rest of it but

you also have to look at it in, in the sense that the criticism,

ah the, the Coroner made some length to, to criticise us in

relation to the establishment of a rapport, a rapport etcetera

with the community and she said that she didn't believe

we'd done that and all the rest of it and I'll comment on that

subsequently and I, I reject that. But I don't think she

seemed to accept the fact there is a need during an

investigation to actually establish a rapport with the people

sometimes that are under investigation. And I note that um,

ah as we've, as we've said here at the out, at the UI placed

on the record, um I think ah I've probably had a beer with

ah investigators etcetera, um I've had a beer, I've had a

beer with the Commissioner, I've had, I've had a, had a

meal with the Commissioner. Now that does not in any way

indicate to me or suggest to me that the Commissioner is

not going to ah make a fair judgment and assessment on

the evidence that he gives. He does that, he does that and

I don't expect any favouritism as a result of that. If that were

the case we would simply be saying that senior managers

should never - can never ever consume alcohol, have a um

relationship or, or fellowship ah with their subordinates. It

would simply make a mockery of the whole process.164

166. I do not intend to censure Kitching or Webber for the failings in logistical planning. As

noted above, the CMC Review accept that this was not a significant issue.

167. Consideration of Kitching and Webber’s actions must be based upon the circumstances

known at the time at which the matter of the complaint arose, rather than by reference

to hindsight. This view was well expressed in Pringle v Everingham:

164 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [845]-[1106].

94

In evaluating the police conduct, the matter must be judged by reference to

the pressure of events and the agony of the moment and not by reference to

hindsight.165

168. This approach requires an examination, in some detail, of the events of 19 November

2004 so that the rationale behind Webber and Kitching’s decision to eat a meal at

Hurley’s residence can be determined. The investigation into the death in custody was

in its infancy. At this time, the investigators had obtained versions from numerous

witnesses, including Hurley. Hurley had indicated that he struggled with Mulrunji and in

that struggle both he and Mulrunji had fallen to the floor of the Palm Island

Watchhouse. Hurley stated that he had not landed on Mulrunji but beside him.166 An

examination of Mulrunji’s body showed no external injuries excepting a small oval

abrasion on the right eyebrow that was associated with the right upper eyelid being

swollen.167 There was insufficient evidence at this time to allow the investigators to form

any conclusion as to the cause of death. This information would only become available

when a post mortem was conducted some days later. Furthermore, there were no

allegations of assault against Hurley. Those allegations would only come to light when

Roy Bramwell was interviewed the following day.

169. In this context, it is difficult to reconcile the comments made by the CMC Review that

Hurley should have been treated as a suspect.168 Presumbably, the CMC contend that

the investigators should have considered Hurley a suspect for an unlawful killing.169 As

I have indicated elsewhere, the assertion is simply unsustainable.170 The Acting State

Coroner more appropriately described Hurley as ‘the officer most likely to be under

investigation’. Implicit in this description is the possibility that Hurley would not come

under investigation at all or that some other officer might become the primary subject of

the investigation. For example, Leafe was also physically involved in the detention of

Mulrunji. From the investigator’s perspective, the only information that they had

available to conclude Hurley as the officer most likely to be under investigation was that

he had arrested and later struggled with Mulrunji. The investigators at this stage could

not have known that during this struggle Mulrunji received the injuries that caused his

death. With the information available to the investigators, there would be no basis for

forming a reasonable suspicion that Hurley had caused the death.

165 (2006) 46 MVR 58, [67]. 166 Senior Sergeant Raymond Raymond Kitching, Interview with Senior Sergeant Christopher Hurley, (Palm Island Police Station, 19 November 2004), Transcript [181]. 167 Draft Autoposy Report SSF023646 of Dr G Lampe, 24 November 2004, 6; see, eg, Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 634. 168 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 77. 169 Criminal Code s 300. 170 See above [85]ff.

95

170. A consideration of the alternatives advanced by the CMC Review highlights their

reliance upon hindsight and the impracticality of those alternatives. Leafe supplied food

and had dinner with Arthy and the forensic team on the same night. Leafe was also

directly involved in the custody and management of Mulrunji. Although the initial

versions to the investigators would indicate his involvement was less than Hurley’s, he

could not be excluded as an officer under investigation. Nevertheless, the CMC Review

accepts uncritically the fact that he dined with members of the investigation team. The

fact Leafe also provided meals to the investigation team highlights that logistics were

an issue.

171. Similar objections could also be made as to the propriety of dining with other members

of the police contingent stationed on Palm Island. Another of the named alternatives,

Steadman, later proved to be a crucial witness. The further named officer, Tonges, was

for a time implicated in the events though it seems mistakenly. Moreover, it seems both

Tonges and Steadman were rostered and working during the evening. I have no

evidence that they could have been relied upon to be available to prepare food for the

investigators during their rostered hours of duty. Whilst the material is equivocal on this

point, it seems that, with the exception of Hurley and Leafe, all of the police contingent

lived in the police barracks.171 Consequently, only one of the other officers need have

been implicated to tarnish the whole of the barracks as an alternative. This is assuming

that the barracks were even capable of accommodating the extra diners, an

assumption that might be subject to some doubt.172 The investigators were not in a

position to make these sorts of distinctions at this early stage. Again, the differential

consideration of Hurley’s involvement demonstrates the benefit of hindsight.

172. The remaining option suggested by the CMC Review was for the investigation team to

take the food and drinks prepared at Hurley’s residence to the police station. This

option appears to be the only viable alternative, although obviously inconvenient. An

examination of the Palm Island Police Station plans reveals the police station had a

meal room and appropriate facilities at that time.

173. The reality facing the investigators was that there was little alternative to eating at

Hurley’s. The only practical alternative available to the investigators was to have eaten

their meal at the Palm Island Police Station. The CMC completed its own investigation

report in March 2008, which in part considered the taking of a meal at Hurley’s place in

the context of an investigation into Robinson. On this matter, the CMC concluded:

171 Cf Robinson’s evidence to the inquest before the Acting State Coroner, Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 1324. 172 Ibid. The CMC Review makes reference to Robinson’s procedural fairness submission, a document I was unable to access.

96

CMC Investigators have taken the view that perhaps the sharing of a meal

with Senior Sergeant Hurley was questionable, however as expressed in the

terms of Detective Sergeant Robinson’s explanation, it was the only place for

a meal on the island at that time.173

174. It is my view that the appearance of the impartiality of the investigation was

compromised by the investigator’s having a meal at Hurley’s residence. The decision

by the investigators to eat there was flawed. However, given the lack of viable

alternatives I also consider that this mistake was one that was easily made.

175. I am also concerned that insufficient consideration was given to the adverse perception

that eating at Hurley’s might generate. However, as the consideration of the CMC

Review alternatives demonstrates, potential conflict may not always be evident. This is

well illustrated by the events that led to the State Coroner, Mr Barnes, abandoning the

first inquest into the death of Mulrunji. Like the investigators, Mr Barnes’ conduct was

impugned as giving rise to apprehended bias. Mr Barnes initially declined to stand

down but later relented upon reflection and consideration of a number of authorities. I

do not raise this matter with a view to embarrassing Mr Barnes. Nevertheless, as I

suggested, it illustrates that even an experienced jurist might not recognise the

potential conflict that might attach to their conduct. Moreover, it demonstrates that,

even when faced with a complaint, the issue of potential bias is not always easily

resolved.

176. Webber and Kitching failed to consider whether eating a meal at Hurley’s residence

would adversely affect the appearance of the impartiality of the investigation. A

consideration of the material indicates that, at the time of making this error of judgment,

Webber and Kitching had been continually working for fifteen and a half hours under

undoubtedly stressful circumstances. During that time they had not eaten. Kitching

commented that his first priority when offered a meal was simply to eat it and that his

second priority was to stay awake for long enough to do so.174 It is understandable in

these circumstances that Kitching failed to consider the impact his actions might have

on public perception. Arguably, more learned men have done so under less arduous

conditions.

177. Both Webber and Kitching recognise that their decision to eat at Hurley’s residence

was sub-optimal; however, for reasons provided above, I do not intend to commence

disciplinary action or provide managerial guidance with respect to either officer.

173 Memorandum of Inspector K J Webster to Director, Misconduct Investigation, Crime and Misconduct Commission, 14 March 2008, 119. 174 Letter of Paul Byrne to Crime and Misconduct Commission 'Response to Crime and Misconduct Commission's Draft Palm Island Report on Behalf of Detective Senior Sergeant Raymond Kitching', 29 April 2010, 2.

97

Allegation 4: Discussions between Witnesses

178. The CMC Review criticised Webber, Kitching and Williams for not addressing issues

involving discussions between potential witnesses. This allegation was not pursued in

Chapter 13 insofar as Kitching was concerned. However, some criticism was levelled at

Kitching in the discussion in Part 4. There were two aspects to this complaint. The first

was that after the initial interview ‘Kitching should have given instructions to the

witnesses not to discuss the incident’.175 The second was that Kitching did not take ‘any

steps to find out what the witnesses had discussed before the investigation team

arrived’.176 More specific comment was made of Webber in Chapter 13, where the CMC

Review stated:

Webber said he considered the OPM meant that witnesses should be kept

separate as ‘far as practical up until such time as the interview’, but stated

that the investigation team couldn’t prevent them from conversing. When

asked whether in hindsight it would have been a wise decision to advise the

parties involved not to discuss the matters under investigation, Webber

replied if the purpose was to ‘cover my arse’ then he could have given a

direction, but that he didn’t think giving such a direction would have achieved

anything.177

179. The investigators’ actions were subject to specific criticism from both the Acting State

Coroner and the CMC Review. The Acting State Coroner commented:

I have referred to various occasions when the investigation was

compromised due to these compounding errors of lack of judgment. Senior

Sergeant Hurley clearly had the opportunity and did discuss the events under

investigation with other witnesses, including Sergeant Leafe and Liaison

Officer Bengaroo.178

She added:

Obviously, despite the arrival and commencement of investigating police

officers from Townsville, it was possible for Senior Sergeant Hurley to

discuss such a matter with Sergeant Leafe before his second interview and

re-enactment. He clearly felt quite open in referring to this with the

investigating officers. This conversation with Sergeant Leafe should not have

175 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 87. 176 Ibid. 177 Ibid 165. 178 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10.

98

been possible and it was the investigating officer’s responsibility to make sure

such a discussion did not happen. They clearly did not do so.179

The Acting State Coroner commented in the context of her conclusions:

The discussion by Senior Sergeant Hurley of the death of Mulrunji with

Sergeant Leafe and Police Liaison Officer Bengaroo prior to being

interviewed was inappropriate and contrary to the OPM. It had the potential to

undermine the integrity of the investigation and undermine the appearance of

integrity of the investigation.180

180. A number of specific policy requirements governed the investigation of a death in

custody.181 In the context of the present complaint, s 1.17 is particularly relevant. The

consideration of s 1.17 must necessarily observe the distinctions within the section

relating to the terms order, policy and procedure. 182 Section 1.17, so far as it is

relevant, provided:

ORDER






and impartially and the psychological welfare of individuals considered.

POLICY

When investigating police related incidents, a regional crime coordinator

should conduct the investigation or appoint an independent senior

investigator with sufficient criminal investigation background to carry out

investigations. Considerations by regional crime coordinators in making any

such appointments should include the gravity of the incident, the rank of the

officers or the level of seniority of the members who are directly involved in

the incident (as opposed to witnesses), and the establishment at which those

officers or members directly involved in the incident are stationed.

179 Ibid 16. 180 Ibid 31. 181 See, eg, OPM ss 8.5.19 ‘Deaths in custody’, 16.24 ‘Deaths in custody’ and 1.17 ‘Fatalities or serious injuries resulting from incidents involving members (Police related incidents)’. 182 See above [95]ff.

99

In cases involving custody police related incidents, a regional crime

coordinator should appoint an investigator from a police establishment other

than from where the incident occurred, or where the officers or members

directly involved in the incident are stationed.




investigation.

Where the Crime and Misconduct Commission considers it should assume

control of an investigation, the senior police officer of the Crime and

Misconduct Commission at the scene should confer with the regional crime

coordinator and a senior representative of the Internal Investigation Branch,

Ethical Standards Command.

Duties and responsibilities

In addition to any other actions and duties for which officers are responsible

in accordance with the provisions of this manual and the Human Resource

Management Manual, officers are also responsible for the following matters:

First response officer

ORDER

The first response officer is to:

(i) assume command and control at the incident scene;

(ii) make an immediate assessment of the situation and inquire

as to the circumstances surrounding the incident;

(iii) immediately notify the shift supervisor and the relevant

regional duty officer in the region where the incident has

occurred, and the appropriate police communications centre;

(iv) contain and preserve the scene;

(v) take possession of or safeguard exhibits;

(vi) detain offenders;

(vii) wherever practicable, ensure that members involved in the

incident do not leave the scene; and

100

(viii) wherever practicable, ensure that members who are involved

in the incident, or who are witnesses to the incident, do not

undertake, or continue to perform duties associated with the

investigative process, or other duties at the scene...

Regional crime coordinator

ORDER

A regional crime coordinator is to:

(i) be directly responsible for the investigation of a police related

incident, unless otherwise directed by the Deputy Commissioner,

Deputy Chief Executive (Operations), or unless responsibility for the

investigation is assumed by the Internal Investigation Branch, Ethical

Standards Command or the Crime and Misconduct Commission;

(ii) appoint investigators with sufficient criminal investigation background;

(iii) liaise with officers from the Crime and Misconduct Commission and

the Internal Investigation Branch, Ethical Standards Command to

facilitate a free flow of information between all parties concerned and

to minimise duplication of investigations;

(iv) ensure that the members directly involved in the incident or who are

witnesses to the incident are interviewed as soon as practicable and

it is highly desirable that interviews occur prior to any critical incident

stress debriefing, including any defusing; and

(v) in cases of deaths in custody as defined in s. 16.24.1: 'Investigation

of death in custody' of this Manual, ensure that where necessary the

provisions of ss. 16.24 to 16.24.5: 'Deaths in custody' are complied

with.

…


POLICY





101







181. The term ‘first response officer’ is relevantly defined to mean:

the first officer to arrive at the scene of an incident, irrespective of whether or

not the particular job has been assigned to another officer.183

182. When more than one officer arrives at the scene of an incident at the same time, the

officer who has the responsibility for command in terms of s 7.1 of the Police Service

Administration Act 1990 is the first response officer.

183. Ordinarily, this definition would be understood as carrying with it an implication

excluding the officers involved in the incident as first response officers. Whilst such an

implication is apt in metropolitan areas where other police will quickly attend, it is

practically impossible in remote locations. Such practical difficulties are compounded if

the most senior officer in the area involved in the incident were to be excluded. It is an

unfortunate but unavoidable aspect of policing in remote communities that this

convergence of roles sometimes develops.

184. It follows that Hurley was the first response officer. This is not a particularly satisfactory

result in a death in custody investigation. Hurley was placed in an invidious position.

Despite his recent interaction with the deceased, Hurley was nevertheless obliged to

perform certain tasks. Apart from assuming command and control, he was obligated to

make an immediate assessment of the situation and inquire as to the circumstances

surrounding the incident. He was also obligated to notify certain officers and provide to

them relevant information.

185. These tasks necessitated that Hurley communicate with other officers at the Palm

Island Police Station. Upon realising that there had been a death in custody, it was

incumbent on these officers to communicate with each other to ensure that there was

no unforeseen danger to police personnel, prisoners or others, such as ambulance

officers, who were to attend at the scene. These officers needed to communicate with

each other to collect accurate information so that the investigation into the death in

custody could commence. A delay in the arrival of the investigators was inevitable

given the remoteness of the location. It is not surprising that Hurley and Leafe talked

183 ‘Definitions’ of the OPM.

102

about this event so that the tasks that needed to be undertaken before an investigation

into a death in custody could commence in earnest were completed.

186. OPM s 1.17 required certain nominated officers, such as first response officers and

regional crime coordinators, to preserve as far as practicable the integrity of

independent versions of members who were directly involved in or witnesses to police

incidents. This policy outlines strategies to ensure that the integrity of independent

versions are maintained, including that members not discuss the matter amongst

themselves until after they were interviewed. These measures only have application as

far as practical. In the situation these officers found themselves, namely a remote

location with limited staff and no possibility of the investigation team arriving at the

scene for some hours, it would be impracticable to perform their duties without talking

to each other. A conversation between these parties was not only to be expected but

was inevitable.

187. The extent of these communications was revealed by testimony provided at the inquest

into the Death of Mulrunji before the Acting State Coroner. Hurley stated:

Hunyor: I want to ask you some questions about the investigation of

the death of Mulrunji now?

Hurley: Yes, sir.

Hunyor: Before you participated in the re-enactments-----?

Hurley: Yes.

Hunyor: -----which you would accept are still part of the ongoing

investigation?

Hurley: Yes.

Hunyor: Yes. You discussed the incident with Sergeant Leafe, didn't

you?

Hurley: With Leafe?

Hunyor: Yes?

Hurley: I possibly did, yeah. I can't recall. I was in the office for the

morning.

103

Hunyor: All right. Well, in fact, in your re-enactment on the 20th of

November, you indicate that you had discussed matters

with Senior Sergeant Leafe; would you accept that?

Hurley: You're talking about obviously the day before. It wasn't on

the morning I'd discussed it - asked him the day before.

Hunyor: So - sorry. I'll tell you exactly - I'll refer you to exactly the

passage. This is in - this is on the 20th of November?

Hurley: Yes, sir.

Hunyor: And the time commencing is 11.53 a.m. and you say in

answer to a question - I won't - this is page 4, line 97 - you

say, "Now, I can't - I can't remember. I'd just asked Michael

before when did he come through."?

Hurley: Okay.

Hunyor: So do you accept you're referring to Sergeant Leafe?

Hurley: Sergeant Leafe, yeah.

Hunyor: Okay. And you have had discussions with him about this

incident?

Hurley: I must have then, yes.

Hunyor: Either before or during the investigation?

Hurley I remember - well, I remember talking about it obviously

before the - before the investigation team, I think-----

Hunyor: Before-----?

Hurley: I can't-----

Hunyor: -----the investigation team-----?

Hurley: -----I can't recall.

Hunyor: -----before the investigation team arrived?

104

Hurley: Well, we sat down and - or it might have been when the

investigation team was there - I can't recall - just to see

where I was at the back of the car-----

Hunyor: So you-----?

Hurley: -----to who the person - like, I didn't know that it was Penny

Sibley. I asked Lloyd that. So yeah, there was discussion

about it.

Hunyor: And did you walk through the events?

Hurley: No.

Hunyor: Okay. But - what were you talking about then - back at the

car?

Hurley: Because I didn’t know who the woman was at the back of

the car. I didn't know when Roy Bramwell had gone

through. I couldn't remember - like, I didn't who she was. I

didn't - I didn't even know who had opened the door to the

station.

Hunyor: All right. In fact, your answer to the question was - and I'll

read it again; "Now, I can't - I can't remember. I just asked

Michael before, um, when did he come through."?

Hurley: Yes.

Hunyor: So, in fact, you've obviously discussed the incident in some

detail, haven't you?

Hurley: Yes, as in when he came through the station.

Hunyor: And - and what he'd seen?

Hurley: I don't recall.

Hunyor: But you might have discussed that with him?

Hurley: May have.

Hunyor: Okay. You saw the - the video of the CCTV before you

were - you were interviewed, didn't you?

105

Hurley: Yes, I did.

Hunyor: You did. And - sorry, I'll just find the correct passage here.

You, in fact - okay. Sorry. You said in your evidence before

that you discussed the incident with Senior Sergeant

Hurley?

Hurley: That's me.

Hunyor: Sorry. With Sergeant Leafe?

Hurley: Yes.

Hunyor: And with PLO Bangaroo ?

Hurley: Correct.

Hunyor: Is that right? Anybody else?

Hurley: Not that I can recall.

Hunyor: Okay. Are you aware that what you did was a breach of the

OPMs?

Hurley: No.

Hunyor: All right. So you're not aware that OPM 1.17 states that

members directly involved in an - in the incident - and this

is in relation to a serious incident?

Hurley: Right.

Hunyor: And you accept this was a serious incident?

Hurley: Yes, sir.

Hunyor: Members directly involved in the incident or who are

witnesses to the incident should not discuss the incident

amongst themselves prior to being interviewed?

Hurley: Right.

Hunyor: And so you accept you breached that?

Hurley: Well, I find that highly against human nature, but yes, I'll

accept I breached that.

106

Hunyor: All right. Okay. You didn't even know about it?

Hurley: Well, you wouldn't sit there muted after an incident like that.

Hunyor: Okay. But - well, you didn't know this OPM existed, did

you?

Hurley: No, no, I-----

Hunyor: Whether or not you think it's counter to human nature, you

didn't know it existed?

Hurley: I didn't.184

188. Hurley states that the discussions between himself and Leafe occurred on the morning

of 19 November 2004. He later concedes that a conversation might have occurred after

the arrival of the investigation team so that he could clarify some points such as who

had opened the Watchhouse door, who Florence Sibley was and when Roy Bramwell

was taken into the Palm Island Station. I note that both Hurley and, later, Leafe when

questioned by Counsel in relation to this matter, were accused of breaching Service

policy. I do not agree that this was necessarily the case. The policy proscribes

conversation so far as ‘reasonably practicable’. It is unfortunate that Hurley was asked

to admit that he had breached Service policy when the relevant policy was not placed

in its proper context. It would have been more informative if Hurley had been asked to

justify why he discussed his version with others.

189. Leafe also provided testimony at the inquest before the Acting State Coroner, where he

stated:

Callaghan: Yes. Okay. Apart from having read transcript of an

interview with Sergeant Hurley you discussed with him his

version of the events-----?

Leafe: Yes.

Callaghan: -----of the 19th of November?

Leafe: Yes.

Callaghan: When did those discussions take place?

184 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 1277-8 (emphasis added).

107

Leafe: That morning.

Callaghan: Mmm. Any - any other time?

Leafe: I can't - I can't say when but spasmodically on occasions

since then.

Callaghan: You've been in contact with him since then?

Leafe: Yes.

Callaghan: What, on the telephone?

Leafe: Yes.185

190. Leafe further provided:

Callaghan: Yes. When you were asked about this on the 20th of

November, that's the - the day after, you were asked, "How

many times that you saw a - an attempt to pull him up", you

said, "I probably would have seen the last - well, just once.

I've come around the corner - I did come around the corner,

I've seen him trying to lift him up and I tried to help him."

Callaghan: You would have listened or, at least, read these transcripts

of these interviews with yourself recently, I take it?

Leafe: Yes.

Callaghan: Yes. You agree with that-----?

Leafe: Yes.

Callaghan: -----account of things?

Leafe: Yep.

Callaghan: I'm interested in why you said, "You would have probably

seen the last time that he tried to pull him up.". Did you

know that there'd been more than one?

Leafe: It was a perception that I had.

185 Ibid 689.

108

Callaghan: Why did you have that perception?

Leafe: I don’t know. I just formed that perception.

Callaghan: Is it on the basis of things that you heard happened from a

- from-----?

Leafe: No.

Callaghan: -----on the apron or something?

Leafe: No.

Callaghan: Was it on the basis of things that Sergeant Hurley was

yelling at Mulrunji at this time?

Leafe: He was saying, "Get up, Mr

Callaghan: "Get up, Mr

Leafe: Yep.

Callaghan: Saying that in a loud voice?

Leafe: Yep.

Callaghan: An aggressive tone?

Leafe: A loud tone. Kris is-----

Callaghan A loud tone?

Leafe: -----Kris - Kris is a loud person.

Callaghan: Right. What else did you hear-----?

Leafe: That's all.

Callaghan: -----him say?

Leafe: That's all.

Callaghan: Just, "Get up, Mr

109

Leafe: "Get up, Mr 186

191. Leafe also stated:

Callaghan: What conversations have you had with this matter - about

this matter with Mr Bangaroo?

Leafe: I don’t recall any.

Callaghan: Any at all?

Leafe: Oh, I've only seen him a couple of times since.

Callaghan: What about on the day in question?

Leafe: I - I recall sitting down with Kris in the - in the day room

where I was sitting-----

Callaghan: Yes?

Leafe: -----at one stage, I just don’t - don’t recall if Lloyd was there

or not.

Callaghan: Okay. When you sat down with Kris, this is immediately

after you've learned that he's dead, is that right?

Leafe: Oh, I - I can't say.

Callaghan: Or in the hours after?

Leafe: Yes.

Callaghan: Did you sit down with him and try to work out how he could

have possibly died?

Leafe: We were running things past ourselves, yeah.

Callaghan: Okay. What did you run past yourself - yourselves?

Leafe: Well, I had - I had no idea and Kris mentioned that they

tripped up the stairs which was why they were lying on the

floor.

186 Ibid 694.

110

Callaghan: Right. And what did he tell you about that?

Leafe: Exactly that.

Callaghan: Just that they'd tripped?

Leafe: Yep.

Callaghan: Cast your mind back, Sergeant, try to remember exactly

what he told you?

Leafe: I can't recall.

Callaghan: Just that he'd tripped. You don’t die from a trip. What did he

tell you?

Leafe: They'd fallen down.

Callaghan: Yes?

Leafe: Tripped on the - on the step going into the watch-house.

Kris said he - he fell next to Mulrunji.

Callaghan: Right?

Leafe: That was about the extent of it.

Callaghan: Next to him, being beside him?

Leafe: Well, that's how I took it.

Callaghan: Yes. Okay. All right. And this is in - this is a very, very short

time after-----?

Leafe: Within hours of it.

Callaghan: -----of - of - at least of learning that he was dead?

Leafe: Yes.

Callaghan: Okay. Did you have any conversation with Constable

Steadman about the events of this morning?

111

Leafe: No. I - I - no, no.187

192. Finally, Leafe stated:

Hunyor: Okay. It's - it's 1.17, and I'll tell you what one of the things

that that says: it says that members directly involved in the

incident or who are witnesses to the incident should not

discuss the incident amongst themselves prior to their

interview. Were you aware of that?

Leafe: In - what - is that in relation to the death or fatality of a

member?

Hunyor: That's in relation to police-related incidents which are

incidents resulting in death or serious injury that involve (a)

an officer acting in the course of that officer's duty and so

on. So that was - this was clearly one of those incidents,

wasn't it?

Leafe: On what you're saying, it would appear so, yes.

Hunyor: Okay. In fact, in - in the OPMs relating to deaths in custody,

do you recall Constable Steadman being asked to look

those up when the - when it was discovered that Mulrunji

was deceased?

Leafe: Someone did, yes.

Hunyor: Okay. And do you recall what they had to say?

Leafe: Yeah, yep.

Hunyor: Okay. 'Cause in fact they refer, and I'm looking here at

16,24, investigation of death in custody, and I'll read from it

- I can show it to you, if you wish - "All deaths which occur

while a person is in custody or while any person is in the

company of police should be fully investigated in

accordance with section 1.17, fatalities or serious injuries

resulting from incidents" and so on. But you're saying that

you - you weren't aware that 1.17 directs members not to

discuss the incident before being interviewed; is that right?

187 Ibid 697-8.

112

Leafe: That’s right. That surprises me actually.

Hunyor: Okay. You were - sorry, you completed the inspection

register, is that right, in this case-----?

Leafe: Ah-----

Hunyor: -----in relation to Mulrunji?

Leafe: Yes, prisoner inspection register, yes.

Hunyor: Okay, yes, and you did not complete the watch-house

register?

Leafe: No.

Hunyor: But you - did you see that on the day?

Leafe: The watch-house register?

Hunyor: Yes?

Leafe: I did, yes.188

193. Leafe’s version is similar to Hurley’s testimony in that he readily admits to having

conversations about the death in custody on the morning of 19 November 2004.

However, it is not clear whether conversations were held between these officers at any

other relevant time. Although Leafe indicates that Hurley discussed with him his

version, the specifics of this conversation are not outlined except for the comments of

Hurley restated in the above transcript.

194. Kitching was interviewed by the IRT. He stated:

Um I'll just run through a couple of notes. The next thing I'd

like to turn to is recommendation thirty-five and some

discussion at page ten, it's about discussions between

witnesses and off the record discussion between ah

Detective Inspector WEBBER, WILLIAMS, HURLEY and

yourself. Recommendation thirty-five says at page 31, the

discussion by Senior Sergeant HURLEY of the death of

MULRUNJI with Senior Serg, with Sergeant LEAFE and P-

L-O BENGAROO prior to being interviewed was

188 Ibid 707.

113

inappropriate and contrary to the O-P-M and had the

potential to undermine the integrity of the investigation and

undermine the appearance of integrity of the investigation.

Ah at Page 10 I've marked it for ah the Acting State

Coroner's findings. It says, I have referred to various

occasions when the investigation was compromised due to

the compounding areas of lack of judgment. Senior

Sergeant HURLEY clearly had the opportunity to discuss

the events under investigation with other witnesses,

including Sergeant LEAFE and Liaison Officer

BENGAROO. Even after the Ethical Standards Officers,

WEBBER and WILLIAMS took over the investigation they

were party to an off-the-record discussion with Senior

Sergeant HURLEY and Officers ROBINSON and

KITCHING about discrepancies in time. That this was not

documented as part of the investigation by those Officers, it

only came to light incidentally through Senior Sergeant

HURLEY's answers to the C-M-C Officer, Detective

Inspector WEBSTER. Um did you know that Sergeant

LEAFE, P-L-O BENGAROO and Senior Sergeant HURLEY

had discussed the events of the morning prior to you

talking to them?

Kitching: No. But ah I assume they work in the same Police Station

they would have discussed the issues.

Why would you assume that?

Kitching: Because they work in the same environment, they had a

person that was deceased in their custody um they had to

make arrangements. They certainly made contact as we

know through the Comco and other Police. They advised

R-D-O's and the R-C-C, um I was certainly briefed on it, ah

I would imagine there would have been discussions there.

Would you assume that Senior Sergeant HURLEY would

have - well he was in charge and would remain in charge of

that crime scene until you got there?

Kitching: Well he would've, yes.

114

Ah did you question Senior Sergeant HURLEY, LEAFE or

P-L-O BENGAROO about any conversations they'd had

earlier in, had earlier in the day?

Kitching: I don't recall doing so, I'd have to have a look at the

transcripts again but no I don't believe there was any

comments in relation to that.

Do you know whether they recorded any of their

discussions?

Kitching: No I'm not sure. Again that was played out in the trial and

Senior Sergeant HURLEY was quite open that he did have

conversations in relation to those issues.189

195. The first of the CMC Review complaints outlined above was that the investigators

should have given instructions to the witnesses not to discuss the incident. The CMC

Review suggests this should have taken place prior to the arrival of the investigation

team and after the initial interviews.190 However, as the CMC Review accepted, there

was ‘no requirement for any of the individual officers to give a direction to the

witnesses’. 191 At its highest, the CMC Review suggests that providing such advice

might have been ‘prudent’.192 I note that, despite being aware of the death in custody,

the CMC did not itself choose to do so. I accept that such a direction would have been

prudent; however, I do not accept that the failure to do so should incur any disciplinary

consequence.

196. The second of the CMC Review complaints outlined above was that the investigators

should have ascertained ‘what the witnesses had discussed before the investigation

team arrived’. As I have already observed, one of the objectives of s 1.17 of the OPM is

to ensure that versions obtained from witnesses are independent from each other so

far as is practicable. The suggested methods to achieve that objective include, so far

as is practicable, the interviewing of witnesses separately and proscribing witnesses

from discussing their versions with others. These methods contribute both to the

perception and the reality of independent versions.

197. In my view, identifying the conversations that had taken place and the scope of those

conversations fell within the general considerations of ensuring ‘the integrity of

189 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 2 [857]-[927]. 190 Cf Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 86. 191 Ibid. 192 Ibid.

115

independent versions’. I note the IRT suggested the real focus of the policy ‘in terms of

ethical and professional conduct, is that officers should openly admit and not conceal

the fact that they have discussed a matter’.193 I accept that this is a practical approach

that realistically acknowledges an embargo on these types of discussions is

unworkable, particularly in circumstances such as those faced by the officers stationed

on Palm Island. However, I would think a corollary of this approach is that the content

of the conversation should be established. In my view, Kitching should have

established the content of the conversations between Hurley, Leafe and Bengaroo

when he interviewed them on 19 November 2004. Similarly, Webber should have

established the content of the conversations between Hurley, Leafe and Bengaroo

when he interviewed them on 20 November 2004.

198. I have given consideration to the consequences for Webber and Kitching’s failure to

ascertain the content of the conversations between Hurley, Leafe and Bengaroo. I have

considered the seriousness of this allegation and the potential of the alleged conduct to

adversely affect the perception of an impartial investigation. Notwithstanding for

reasons outlined above, I have determined not to commence disciplinary proceedings.

However, I am of the view both officers should be given managerial guidance.

Allegation 5: Off the Record Discussions between Webber, Williams and Hurley


Even after the Ethical Standards Officers (Webber and Williams) took over

the investigation, they were party to an “off the record” discussion with Senior

Sergeant Hurley and Officers Robinson and Kitching about discrepancies in

time. But this was not documented as part of the investigation by those

officers; it only came to light incidentally through Senior Sergeant Hurley’s

answers to the CMC officer, Detective Inspector Webster.194

200. The CMC Review took issue with the discussions concerning the times on the

surveillance video recorder in the Palm Island watch-house. They said:

In terms of official police procedure, the OPM at the time provided that

members who may be required to give evidence of conversations, events or

193 Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 23; see Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 88. 194 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10.

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occurrences should compile relevant notes at the time of the conversation,

event or occurrence or as soon as practicable thereafter.195

201. The footnote to this passage suggests the particular OPM upon which the allegation

depends is s 2.13.8. That section provided:

Members who may be required to give evidence of conversations, events or

occurrences should compile relevant notes at a time during the conversation,

event or occurrence or as soon as practicable thereafter while details are still

fresh in their mind.

This practice ensures any notes made are accurate and when subsequently

referred to, may be properly used to revive a member's memory.

Admissibility and acceptance of evidence is based on that evidence being

relevant to the issues in question and, generally, the witness having an

independent recollection of the matters stated.

Witnesses may revive their recollection by reference to notes or documents

made at the time or shortly after the event to which they refer. In such cases,

witnesses must have either made the notes themselves, or adopted notes

made by another person, at a time when the events were still fresh in their

mind.

POLICY

To preclude argument as to the weight of the evidence, members are to

prepare statements either from their own unaided independent recollection of

conversations, events or occurrences or by reference to their notes. When

notes have been made the statement should be prepared by reference to

those notes.

Members should not prepare a corroborator's statement or alternatively,

supply a statement to another member for copying or duplicating purposes.

Members should also avoid discussing in detail the evidence they are going

to give with other members or witnesses involved in the case. Generally,

these practices may be considered to be inappropriate and may affect the

weight of the evidence to be given.

202. The specific complaint made by the CMC Review is that:


117

the original investigators [do not] pay sufficient attention to the OPM

requirement for police to make some appropriate record of conversations

about which they may be required to give evidence. Given the importance of

video footage to any investigation, any discussion with a witness about time

discrepancies should have been recorded, in the interests of accuracy about

the timing of events, any potential concern about the integrity of the evidence,

and overall thoroughness and impartiality (and perception of impartiality) in

the investigation.

…

In dismissing this issue as ‘merely administrative’, the investigators seem to

assume that their failure to record discussions about the time discrepancy in

the video footage was obviously irrelevant to the investigation into Mulrunji’s

death. This is an offhand attitude towards a basic OPM requirement, and

disregards the critical role that video footage plays in many police

investigations.196

203. The particular conversation in question was referred to by Hurley in his interview with

the CMC:

Webster: Ah you might be able to help to ah assist me with an

explanation um, the tapes commence at ah 10:18 am, um

have you, you seen the ah, the tapes?

Hurley: I have

Webster: And um, are you aware there is a dis -discrepancy in time?

Hurley: I bought that to the ah notice of ah Detective Inspector

WEBBER, Detective Inspector WILLIAMS, Senior ah

Detective Senior Sergeant um …..

Britton: KITCHING

Hurley: KITCHING ah and Detective Sergeant ROBINSON on the

Saturday

Webster: Right

196 Ibid 93-4.

118

Hurley: Um, I asked permission to view the tapes. We viewed them

all together um whilst we were in the day room in the police

station and ah it was ah noted that the tapes were some 15

to 20 minutes out and ah the only explanation for that is the

um, a, the power at ah Palm Island is unreliable and it

actually ah makes your clock go slower um. When I’m at

home to go to work I set my mobile phone as an alarm, I

don’t rely on the clock um it looses time. Ah that’s the only

explanation I can do for that. Had, had I noticed that um

obviously before the incident took place, I could have

adjusted it by the um, ah the clock on the facilities but ah

that was the that was the situation with that

Webster: And um, that incident of ah you sitting down and ah looking

at and working out the 15 minute variance um, these other

officers were across that situation?

Hurley: Ah, I’m sorry sir

Webster: Inspector WEBBER and ah WILLIAMS they were aware …

Hurley: Yes, I made …..

Webster … of this

Hurley: I made them aware of that time that, um, ah that wasn’t

recorded that was um off the record on the um on the

Saturday after we had ah, um done the re-enactments and

…

Webster: OK, so…those officers would be in a position to ah provide

that information by the way of a statement?

Hurley: Yes.197

204. Kitching prepared a statement dated 19 January 2005 where he indicated:

I then viewed the Watchhouse security footage recorded of the deceased and

at 3.45pm I took possession of the video tape. At that time I observed that the

197 Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Transcript Tape 2 [416]-[458].

119

time set on the recording equipment was approximately 15 minutes slower in

comparison to real time.198

205. Kitching provided some elaboration of the conversation itself during his interview with

the IRT:

Do you remember the off-the-record ah they're the words

used in at page 10 the discussion ah with Senior Sergeant

HURLEY about time discrepancies?

Kitching: Yes I do.

Can you tell me your recollection of the discussion - who

was present, what was said?

Kitching: Well to start with the ah, the issues raised by the Acting

Coroner aren't true because ah Inspector WILLIAMS wasn't

there at that time. He's from E-S-C, he didn't arrive until the

second day so those comments are simply not true. Um

during the initial examination of the ah watchhouse an

orientation with respect to the issues identified to conduct

the investigation as I spoke about before. Um I viewed the

C-C-T-V footage, okay the video footage that was taken at

the watchhouse and at that time I noticed there was a

discrepancy in time on the recording commitment ah

recording equipment compared to real time okay. Um

identified that there was about fifteen minutes discrepancy

in that time recording compared with the real time and for

that purpose and UI of clarity, ah thoroughness and to

clarify that issue ah I addressed the issue with Senior

Sergeant HURLEY there and then okay ah and then I took

possession of the footage. Now I took possession of that

footage at 3:45pm and that's recorded in my notes.

3:45pm, now I, I viewed the entirety of that footage at that

time okay. And they were the discussions I had with

HURLEY in relation to them. Now -

Just while we're there, can I interrupt you, those

discussions you had with Senior Sergeant HURLEY, did

you make any notes of them?

198 Statement of Detective Senior Sergeant Raymond Joseph Kitching, 19 January 2005, [11].

120

Kitching: As I said ah in my notebook um I just put here took

possession of the tape at that time and that was when I

didn't actually make notes about it as seen in my book here

but that is when I had the discussions in relation to the ah

the issue of the time discrepancy.

The time taken for those discussions?

Kitching: Well it was ah it was during the, the time that I watched the

video, the ah C-C-T foot, C-C-T-V footage. Now from

memory that footage went for thirty minutes or maybe a bit

longer. Now I arrived on the island at um at 3:05, I walked

into the Police Station, I first got the information about

so some time between 3:05 and

3:45 I was watching that C-C-T-V footage so ah there

wasn't any, there wasn't much time at all when I could have

had any conversations with anyone.

Why was Senior Sergeant HURLEY and Senior and

Sergeant LEAFE there? Why were they there when you

were looking at that ah footage?

Kitching: HURLEY was there because I asked him to show me the

C-C-T-V footage. He's the officer in charge of the station;

he knows how the machine operates. I certainly didn't want

to ah lose that ah evidence. I wanted to take possession of

it straight away. Um it was quite appropriate and proper to,

to view that footage for myself ah being the principal

investigator at that time so I had knowledge of what's

happened and I could certainly pose the appropriate

questions ah during any subsequent interviews. Um with

Senior Sergeant HURLEY having knowledge of that system

he was the most appropriate person to ask, particularly

when I identified that time discrepancy, discrepancy

because you could see before the tape was even played,

you can see the time on the screen was different to the

time on the clock so I would, so I had to clarify that issue

because this, this time the times down that was recorded

on the ah, on the video footage. Now as far as that

recording, I recorded that and it's on, in paragraph eleven

on page 2 of my statement that indicates that I did have

those conversations with him.

121

Yeah. Ah what impact other than verification or

determination of more accurate timings ah could that ah,

could the issue of inaccuracy of time had on the

investigation problem?

Kitching: Well we're looking at the time of, of a cause of death. Okay

that could have a great impact depending on um we

already knew there was a fall in the Police Station, um we

knew there was an arrest earlier on, we knew that the

person's intoxicated um on the floor by viewing the video

footage because the person on ah wasn't standing up

walking around, he was laying down so um that certainly

would have a great impact on providing any information to

the pathologist later on when trying to um ascertain cause

of death or time of death sorry and what may have

triggered that death.

The conversation you had at that time, was it related to

administration and maintenance of timepieces at Palm

Island Station generally and not related to specific issues

concerning an investigation, is that what you're telling me?

Kitching: That's right, yes. That particular conversation was yes. I

had a, a, a conversation with him before that as you can

see in my notes. I've written notes where I've obtained from

HURLEY himself the full name, address of the deceased,

date of birth and other issues like that, custody number,

okay where he was lodged um and issues like that.199

206. The complaint against Webber was more narrowly framed:

Webber told the Inquest he thought he, Williams and Kitching watched the

video on the Saturday morning. Webber did not recall Leafe watching the

video. Webber gave inconsistent evidence about Hurley’s movements while

the video was being watched. Webber initially said he was aware that Hurley

was watching the video, but then he said he thought Hurley went into his

office. He also said Hurley turned the video on and then left the room.

199 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 2 [929]-[1044].

122

Webber did not mention any discussion with Hurley about the time

discrepancy at the Inquest.200

207. Mr Callaghan examined Webber during the inquest before the Acting State Coroner.

Webber was not questioned about an ‘off the record’ conversation and does not make

any comment about the time discrepancy on the video. This is the only extract of

Webber’s evidence to the inquest referred to by the CMC Review on this issue:

Callaghan: There was, of course, a video of the cell?—

Webber: Yes.

Callaghan: Are you aware whether they had watched that video or

not?—

Webber: I don't believe it was possible for them to have watched the

video up until time of arrival at the station.

Callaghan: Okay. Did you allow them or instruct them to watch the

video?—

Webber: No, I certainly didn't instruct them to watch - to watch the

video.

Callaghan: Were you present when they did?—

Webber: I believe on the - no, I think - no, I don't believe I was

present. I think it was Inspector Williams I was present with

on the Saturday morning.

Callaghan: Right. So, you were aware that they were watching?—

Webber: I - yes.

Callaghan: And you didn't-----?—

Webber: But I think-----

Callaghan: -----have a problem with that?—

Webber: I think Senior Sergeant Hurley actually had to operate it for

us.


123

Callaghan: Right. Well, does that mean that you were there watching

him operate it?—

Webber: He turned it on. I think he then left the room.

Callaghan: Well, who stayed in the room?—

Webber: Myself, Williams and Kitching.

Callaghan: Not Leafe? Not Hurley?—

Webber: Not that I can recall. As I say, I think Hurley went to his

office.201

208. The CMC Review assertion that Webber gave ‘inconsistent evidence about whether

Hurley was present or in his office’202 was apparently premised on this passage. I do

not intend to dwell on this comment. Suffice to say, when read in context, I am of the

view there is no inconsistency at all.

209. Webber was questioned directly about any off the record conversation in his interview

with the IRT:

Webber: As far as practical up until such time as the interview. But

that's the entire point, they had been interviewed at that

point in time, they had to continue, they were going to

continue to converse, they had to converse about the

everyday policing, policing activities that were occurring,

occurring on the island. We couldn't actually prevent,

prevent them conversing together.

That's correct. But it, it still, it came to light that HURLEY

and ah KITCHING and there had been conversations

because there was the discrepancies in the time clocks.

Webber: Yeah. But that actually, that conversation as I understand

actually took place on the Friday.

Yes.

201 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 732. 202 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 93.

124

Webber: That is actually mentioned in Detective Senior Sergeant

KITCHING's statement and contrary to what the Coroner

says he was quite open about that and it was mentioned in

his statement.

The point I think too ah would jump there I suppose there's

the issue of the ah witnesses per se, LEAFE, HURLEY,

BENGAROO discussing events and then there's another

comment about um KITCHING, ROBINSON and HURLEY

discussing time discrepancies. I think Inspector WEBSTER

brought that ah to light in his interviews. Um as far as you

know that discussion was only for a matter of minutes while

they operated the tapes is that true?

Webber: Yes. I think it was just a straight out question and ah

answer, here's the, here's the tape, he's examined it and

there's a, there's an apparent time dis-discrepancy and he's

asked the question why is that and it's been answered and

that's basically it to my knowledge.203

210. The CMC Review assert that Webber was party to an ‘off the record’ discussion with

Hurley. 204 The evidence of this assertion is not particularly satisfactory. Hurley

suggested that he told ‘them’ – a party of officers that he said included Webber. By

contrast, Webber’s answers to the IRT suggest that he was aware of a conversation

about time discrepancies on the video but was not a party to it. In any event, for

reasons that shall become apparent, it is unnecessary for me to resolve this issue.

211. The use of the term ‘off the record’ was unfortunate. The term appears to carry some

pejorative implication which is not warranted in the context of the actual discussion. It

appears that the term was used by Hurley during his interview with the CMC 205 to

indicate that the conversation did not take place during the formal interview or

re-enactment. The evidence does not suggest that the term ‘off the record’ was

intended to indicate some decision to conceal the conversation or otherwise keep it

secret.

212. The CMC Review’s complaint fails to properly consider the context of this information

as evidence. Whether the time on the video was accurate or not, the explanation for

203 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station), 2 August 2007), Transcript Tape 2 of 3 [389]-[428]. 204 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 205 Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Transcript Tape 2 [450]ff.

125

any inaccuracy was not evidence that could have been given by any of the

investigators. The officers could only give evidence of their own observations. This

might include the time they observed on the video tape, though the video tape would

likely speak for itself. It might go so far as to detail a time discrepancy apparent on the

video recorder when compared to the actual time. However, they could have no

firsthand knowledge of the reason for the inaccuracy. This information necessarily was

told to them by some other person. It was apparent to the investigators, based upon

what Hurley had already disclosed, that the time on the video did not correspond with

the real time of recordings. Consequently, they ascertained why. It was undoubtedly

important for the investigators to make this inquiry to understand the video properly.

However, none of the witnesses, including Williams, would ordinarily be able or

expected to give evidence of the conversation. The conversation was clearly hearsay.

It detailed the reason for the discrepancy, a matter outside the knowledge of the

investigators based on their own observations. In the normal course of events, if

evidence of the reason for the discrepency was necessary, it would come from Hurley

or some other person with first hand knowledge of the reason. Even in a trial against

Hurley, the conversation could only be given by the investigators as some exception to

the rule against hearsay. 206 Properly understood, the information was of some

importance, not the precise conversation. Many conversations were not recorded

during the investigation about which no complaint is made and rightly so. These include

conversations with the hospital staff, with witnesses at the scene, with ambulance staff

and so forth. In each case the witnesses themselves would have to give the evidence,

not the investigators. In those instances, as with this one, it was the information that

was of importance, not the conversation.

213. Two propositions seem to underpin this particular complaint. The first is the

unwarranted excitement generated by the use of the term ‘off the record’. 207 The

second is the singular importance upon which the CMC Review and others have

attached to interaction with Hurley. The CMC Review suggested that obligations arose

when ‘engaging in discussion with Hurley or any other witness about an issue relevant

to the investigation’. 208 Yet no complaint is made about discussions ‘with any other

witness’. The reality is that the CMC Review and some others believe Hurley should

have been treated as a suspect209 and not as any other witness. This view, as I have

discussed elsewhere, is untenable. Moreover, there was no reason for the investigators

to think that the conversation itself might be of particular importance and thus the

precise words should be recorded, even if Hurley was a suspect.

206 No such exception is suggested. 207 See below, [419]. 208 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 90. 209 Cf ibid 77.

126

214. The CMC Review suggested reliance on OPM s 2.13.8 to create an obligation. 210

However, the statement they rely upon is advisory. It does not form part of an order,

policy or procedure. Section 2.13.8 states





those notes.

215. The investigators appear to have relied upon their own unaided independent

recollection. Consequently, it was permissible for Kitching to prepare his statement

without writing prior notes based on his own independent observations. Kitching

identified the time discrepancy independently and attested to his own observation. By

contrast, the evidence does not suggest that Williams made any independent

observation of the time discrepancy that, as his own observations, he might have

recorded.211 The importance of the video and a proper understanding of it, rather than

the conversation, was reflected in Williams’ procedural fairness submission:

I maintain the brief, off the record conversation regarding the ten minute time

discrepancy on the watchhouse video did not have any bearing whatsoever

on the investigation. What is on the video recording is what is on the video

recording, nothing is going to change that and it does not damage the


216. Having considered the requirements of OPM 2.13.8, I find the issue of time discrepancy

was adequately addressed in the evidence of Hurley and Kitching for the Coroner to

consider the integrity of the video recording. Hurley had first hand knowledge of the

electricity supply on Palm Island so as to be able to explain the discrepancy in time and

Kitching made his own independent observation of the equipment. Williams, in my

view, had no obligation to record a conversation with Hurley that the time on the video

was inaccurate, when Hurley could give this evidence as a fact known to him.

217. I am not satisfied, based on the material reviewed by me that Kitching failed to meet

the obligations of OPM 2.13.8. Accordingly, I do not intend to commence disciplinary

proceedings in relation to this matter. I am not satisfied that Webber was a party to the

conversation but, if he was, I would reach the same conclusion with respect to him. I do

210 Ibid 90. 211 Cf Statement of Detective Inspector Mark David Williams, 29 November 2004. 212 Memo of Inspector Mark Williams, 'Response to adverse comments made in the Palm Island Report (Draft) April 2010', undated, 3.

127

not intend to commence disciplinary proceedings or provide managerial guidance with

respect to either officer.

Allegation 7: The Form 1

218. Both the Acting State Coroner and the CMC Review made a number of complaints in

relation to the completion of the Form 1 and the surrounding circumstances. In short,

the criticisms comprise the failure to include the allegations of Roy Bramwell or

Florence Sibley, Hurley’s alleged assault of Mulrunji, and the failure to brief the

government pathologist.

219. The Acting State Coroner criticised the investigators’ actions in the preparation and

submission of the Form 1. She commented:

The police officers initially appointed to undertake investigations were

Detective Senior Sergeant Raymond Kitching from the Townsville Criminal

Investigation Branch, and Detective Sergeant Darren Robinson, who was in

charge of the Criminal Investigation Branch on Palm Island. They arrived on

Palm Island on 19 November, the day Mulrunji died. On my understanding,

neither was from the State Homicide Investigation Group. The form 1 report

of the death was not forwarded to the State Coroner until the morning of 22

November 2004. It was signed by Detective Senior Sergeant Kitching. The

information failed to include any reference to the allegation of assault by

Senior Sergeant Hurley upon Mulrunji which had been made by Roy

Bramwell to Detective Senior Sergeant Kitching in his video interview on 20

November 2004. That crucial information was not available to the pathologist

at the time of the first autopsy.213

220. The CMC Review opined:

Under the OPM, Kitching as the investigating officer was responsible for

ensuring that the Form 1 – intended to assist the pathologist determine the

cause of death – was completed as fully as possible.

Kitching cannot be said to have complied with this requirement since he did

not include on the Form 1 sworn allegations by Roy Bramwell and Penny

Sibley that Hurley had assaulted Mulrunji. Neither did he provide this

information by completing a Supplementary Form 1, which is intended as a

means of getting additional information to the pathologist as urgently as

possible.

213 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 9-10.

128

Kitching was inconsistent in his various explanations as to why he had not

included Bramwell’s allegation, although his statements included that he did

not believe that Bramwell’s evidence was reliable, and he eventually agreed

when the IRT asked him if he was saying that he only provided reliable and

relevant information to pathologists. However, this rationale fails to explain

why he excluded Penny Sibley’s sworn evidence (the credibility of which had

not been questioned) but included hearsay evidence against Mulrunji. This

gives rise to a perception of bias towards Hurley on his part.214

221. The CMC Review concluded:

Kitching failed to include in the Form 1, or a Supplementary Form 1, the

allegation of Roy Bramwell and of Ms Sibley about Hurley’s assault of

Mulrunji. He also failed to brief to Dr Lampe about the allegations during the

autopsy.

However he did include in the Form 1 information that Mulrunji was

aggressive and abusive towards police and that he punched Hurley and did

inform Dr Lampe about unconfirmed information he received from Robinson

that Mulrunji had been drinking bleach prior to his arrest. His actions in this

regard give rise to a perception of bias.215

222. The central issue in each of the Acting State Coroner’s and CMC Review’s complaints

is the failure to include Bramwell’s allegations in the Form 1, a supplementary Form 1

or the briefing to the pathologist. The CMC Review expands upon this central complaint

by criticising the failure to include the version of Florence Sibley. This complaint is

primarily directed at Kitching. However, the CMC Review complained that Webber did

not take ‘any action to ensure that the Form 1 was appropriately and fully completed

despite [his responsibility]’.216 This complaint was not repeated in Chapter 13 to support

the view that Webber was liable for disciplinary proceedings for misconduct or official

misconduct.

223. Service policy has been developed to facilitate the appropriate transfer of information

from investigators to other relevant agencies, including the State Coroner and the

government pathologist. In part, this policy ensures that statutory obligations pursuant

to the Coroners Act 2003 are met. Service policy in effect in 2004 did not specifically

address the verbal briefing of a government pathologist. However, it did contemplate a

police officer investigating a death observing and participating in an autopsy. In my

214 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 111. 215 Ibid 167. 216 Ibid 108.

129

view, verbally briefing a government pathologist is undesirable. It is preferable that

relevant communications are documented. The appropriate documentation in relation

to ‘reportable deaths’ under the Coroners Act 2003 is outlined in OPM s 8.4.3. A

number of further provisions are relevant to the consideration of the present complaint.

These provisions are set out below.

224. OPM s 8.4.3 provided, in part:

PROCEDURE

Where initial enquiries indicate that a death is one that falls within the ambit

of Part 3 of the Coroners Act, the Service is obliged to investigate and report

on the cause of the death. The actions required to do so will vary from case

to case, dependent on the circumstances of the death. In all cases however,

certain actions must be taken and certain reports must be completed. The

following points provide a list of those reports and actions, and the sections

that follow discuss those requirements in greater detail.

POLICY

In the case of any death which falls within the circumstances outlined in Part

3 of the Coroners Act the investigating officer is responsible for:

(i) arranging for the delivery of the body to the appropriate mortuary and

completing all mortuary procedures;

(ii) maintaining continuity of identification of the deceased;

(iii) taking all action necessary to positively identify the deceased;

(iv) advising relatives;

(v) completing a 'Police Report of a Death to a Coroner' (Form 1) then:

(a) forwarding or delivering the original and a copy of the Form 1

to the coroner and obtaining from that person an order for

autopsy;

(b) delivering the order for autopsy and another copy of the

Form 1 to the Government Pathologist who is to perform the

autopsy;

(c) ensuring a copy of the Form 1 is delivered to the location

where specimens are forwarded for further examination. See

s. 8.4.11: 'Attending the Autopsy' of this chapter and s.

2.29.5: 'Preferred locations for testing forensic samples from

autopsies, assault examinations and toxicology cases' of this

Manual;

130

(d) forwarding an electronic copy of the Form 1 to their

respective Officer in Charge so that it is checked and

forwarded via Email to the State Coroner's Police Support

Unit (Email address: 'State Coroner'); and

(e) submitting a signed copy of the Form 1 to the respective

Officer in Charge to be forwarded to the local Coroner;

(vi) completing, where applicable, a Supplementary Form 1 (QP528).

The Supplementary Form 1 is used to provide additional information

to a coroner or State Coroner;

(vii) attending and witnessing the autopsy, where applicable, or arranging

for the attendance of another officer in line with local arrangements;. .

ORDER

…

In cases where additional or relevant information comes to hand that may

assist a government pathologist in determining a cause of death at a time

prior to an autopsy being conducted, investigating officers are to contact the

pathologist as a matter of urgency and provide that information on a

Supplementary Form 1. The Supplementary Form 1 should also be

completed and submitted in the same way as a Form 1. A copy of the

Supplementary Form 1 should also be forwarded to the relevant pathologist.

225. OPM s 8.4.8 specifically addressed the completion of Form 1. This section provided:

PROCEDURE

The purpose of the Form 1 is to assist the Coroner in deciding whether an

autopsy should be ordered, and to assist the pathologist performing the

autopsy to establish the cause of death. Therefore the investigating officer

should complete the relevant parts of the form as soon as possible. In some

cases, the form may be completed and autopsy procedures carried out

before the deceased is positively identified.

Generally, the autopsy will be carried out on the next working day of the

Government Pathologist, Government Medical Officer or other medical

practitioner, as applicable. The Form 1 should be completed and an order for

autopsy obtained before that time.

131

Where an officer has additional information that could not be included on the

Form 1 at the time of submission, they should provide this information on a

Supplementary Form 1 (QP528).

226. OPM s 8.4.10 addressed the process of obtaining order for autopsy. This section of the

OPM provided:

ORDER

After completing a Form 1, the investigating officer is to deliver, or cause to

be delivered to the office of the coroner, the original and a copy of the

completed Form 1. An order for autopsy may then be provided by the

Coroner.

The order for autopsy together with a copy of the Form 1 is to then be taken

to the pathologist who is to perform the autopsy by the officer receiving same.

With respect to the John Tonge Centre, see s. 8.4.15: 'Obtaining order for

autopsy at John Tonge Centre' of this chapter.

227. Finally, in reference to deaths in custody, OPM s 8.5.19 provided:

POLICY

Where a person's death is found or suspected to be a 'death in custody', the

matter is to be investigated by a senior or experienced investigator with

sufficient criminal investigation background to carry out investigations.

The officer in charge of the station within whose division the person died is to

ensure that a suitable officer is assigned to investigate such a death.

The provisions of this section should be read in conjunction with s. 16.24:

'Deaths in custody' of this Manual.

A death in custody must be investigated by the State Coroner or Deputy

State Coroner.

228. The criticisms made by the Acting State Coroner were apparently made, in part, in

response to testimony provided by Dr Lampe who stated:

Boe: And insofar as being able to - and your reports generally

talk in terms of excluding or including various scenarios

from the cause of death?

Lampe: Yes, and certainly the history does help in that matter.

132

Boe: Yes. So you can't exclude something that's not put to you, I

guess?

Lampe: It makes it difficult.

Boe: Now, in the Form 1 that you received in this matter, there

was no inclusion of any allegation of an intentional assault?

Lampe: I don't remember any, no.

Boe: Now, nor did any of the oral instructions given by Detective

Sergeant Kitching include any history of an allegation of an

intentional assault?

Lampe: Not that I've recorded. He was present at the autopsy, he

did pick me up from the Cairns Courthouse on the day.

Boe: Yes?

Lampe: And we did discuss matters but certainly not that I've

recorded in the report.217

229. Mr Martin examined Kitching in relation to this matter during the inquest before the

Acting State Coroner:

Martin: Yes. All right. The other matter I wish to ask you about: did

you inform Dr Lampe about that allegation that Bramwell

had made?

Kitching: I'm not sure. I briefed him about the investigation to date; I

went through what the witnesses' evidence were, but

whether I directly told him about that or not, I'm not sure.

Martin: Well, did you think it was significant that if he's about to

conduct a post mortem he should be informed that there is

an allegation of assault being made?

Kitching: Yes, I - look, I couldn't be a hundred per cent sure whether

I told him about that or not. I ran through the witnesses'

evidence - or the information that I knew of at that time. I

possibly did.


133

Martin: Well, of all the information that you would have known at

that time, that particular allegation would stand out, would it

not?

Kitching: Well, the information I had, yes, and I - I believe I would

have, but I can't say a hundred per cent whether I did or

whether I didn't.218

230. When later examined by Mr Boe, Kitching stated:

Boe: Okay. Now, you mentioned to Mr Martin that you - I want to

put this as fairly as I can - that you're not sure if you

disclosed to Dr Lampe about the assault allegation by

Bramwell?

Kitching: That’s right, yes, I'm unsure. I briefed him in relation to the

information provided me; whether I actually spoke about

that, I'm not sure. I believe I would have, but I can't say a

hundred per cent sure whether I did or didn't.

Boe: As Mr Martin said, it is a fairly noteworthy aspect of the

history, isn't it?

Kitching: I agree, yes.

Boe: Did you prepare the Form 1 summary?

Kitching: Yes, I did, yeah.

Boe: Would you accept that that fact is not in the Form 1?

Kitching: I'd have to have a look, but if you say it's not there, I agree,

yes.

Boe: You can look at my copy, if you like; would you like to see

it.

Martin: I think he accepts it. It's not

Kitching: Yeah, I - I accept; if it's not there, it's not there. I accept

that.

218 Ibid 770-1.

134

D/STATE CORONER: Thank you.

Boe: And if I were to tell you that Dr Lampe says he doesn't

recall you mentioning that, would you be prepared to

accept that you ?

Kitching: Yes, I would.

Boe: might be wrong?

Kitching: Yes. As I said, I can't be a hundred per cent sure, but, yes,

I'd accept that.

Boe: So, you're prepared to accept that you did not inform Dr

Lampe about Bramwell ?

Kitching: As I said, I can't be a hundred per cent sure, but if he

doesn't recollect that, then obviously I didn't advise him of

that.

Boe: Okay. Because paragraph - have you got your statement

with you?

Kitching: I've got a copy of it, yeah.

Boe: If you turn to paragraph 47 of your statement

Kitching: Yes.

Boe: you purport to summarise the mattes that you briefed orally

to Dr Lampe, in the italics?

Kitching: Yep.

Boe: And you would accept that it goes into the issue of there

not being any information about any fights or altercations

prior to being taken into custody?

Kitching: That’s right, yes.

Boe: And it doesn't go any further about any other evidence of

altercations after being placed into custody?

Kitching: No, that's right, yeah.

135

…

Boe: Accepting that the information about the Bramwell incident

- or allegation is not in the information you conveyed to Dr

Lampe, do you put that down to an oversight, or did you

intentionally do that?

Kitching: No. It'd be an oversight, most definitely.219

231. Kitching substantially expanded upon his testimony when interviewed by the IRT. In

that interview he stated:

It's the first paragraph at the top of the page there the State

Coroner said the form one report of a death was not

forwarded to the State Coroner until the morning of the

22nd of November 2004. It was signed by Detective Senior

Sergeant KITCHING. The information failed to include any

reference to the allegation of assault by Senior Sergeant

HURLEY on MULRUNJI which had been made by Roy

BRAMWELL to Detective Senior, ah Senior Sergeant

KITCHING in his video interview on, on 20 November

2004. That crucial, crucial information was not available to

the, to the Pathologist at the time of the first autopsy. You

understand what she said there don't you?

Kitching: Yes I do...

It appears to be an error. You did however ah talk to Roy

BRAMWELL at about 18:15, 08:15 hours on the 20th of

November 2004?

Kitching: I'll just refer to some notes here.

Yeah.

Kitching: Yeah 8:15, 20th of the 11th, that's right. Yeah...

Okay, the form one which I've got a copy of here in front of

me I might take you to it, ah form one, that's your signature

on the back there?

219 Ibid 774-5, 8.

136

Kitching: That's correct yes it is.

Yeah. When was that first drafted, do you remember?

Kitching: It was on the night of the 19th of ah November 2004, the

Friday night during the initial investigation. UI that time.

Ah do you know what time roughly?

Kitching: Yeah. I can tell you exactly.

That would have been Friday the 19th of November UI.

Kitching: It was, it was last modified about 8:30, 9pm that night. I've

got a document that shows when it was last modified.

That was as a result of documentation that you, you sought

out?

Kitching: That's a result of the investigation I completed at that time.

Yes.

Kitching: Up until that time it was all the information I had concerning

the death of ah ah and that

information was forwarded to the Coroner at Townsville

Court.

So ah, just so I can go back a step. The form one was done

on a computer inside the Palm Island Police Station.

Kitching: The C-I-B office.

Yeah. And the last time was about 8:30 -

Kitching: 9pm.

- 9pm UI.

Kitching: Yeah.

And you've got something to show -

Kitching: I have.

137

- that it was about then? You don't need to find it now if you

like.

Kitching: Yeah but I can show you that.

Yeah. Yep.

Kitching: When it was last modified was UI 19th of the 11th 2004 at

ah 8:58pm is the time it was last modified.

And this is a copy from the file server?

Kitching: That's a copy from the file server.

Yeah.

Kitching: And it's ah recorded on disc that indicates the last time that

document was modified.

Did you ah give that form one to the Townsville Coroner

that night did you?

Kitching: No. It went to him on the Monday morning.

Monday morning.

Kitching: I can provide you with some more information about that.

Just, I'll mark this document, document one, document one

KITCHING.

Kitching: Yeah.

And it just shows on there that the last date that that

form one dot doc 755 kilobytes was - the

last date it was modified was 8:58pm on the 19th of the

11th 2004. Um so the form one when you'd last ah modified

it, you didn't know about the Roy BRAMWELL allegations -

Kitching: No.

- at that stage?

138

Kitching: No because BRAMWELL was interviewed the following

morning on the 21st, ah sorry on the 20th, Saturday the

20th.

And how did it ah Roy BRAMWELL's ah involvement come

to your attention as a person of interest -

Kitching: Um -

- or a witness?

Kitching: - through the interviews with HURLEY, ah LEAFE and

others it was indicated that um BRAMWELL had been in

the Police Station that day and was actually in the Police

Station when the deceased and ah another male person

was taken into the watchhouse.

And who ah for want of a better term tracked down Roy

BRAMWELL?

Kitching: Um I don't know who actually ah located him but I certainly

had those enquiries made ah through the local police who

ah had him brought to the Police Station for me for the

purpose of this, this interview.

On the Saturday morning at about 8:15 -

Kitching: That's correct.

- UI. That's good. Um the form one, had you discussed the

form one or the death with the State Coroner's office or a

local Coroner?

Kitching: Not the form one, okay with the State Coroner's office. The

form one was completed on the night of the 19th of

November 2004 by myself. The information I completed the

form one with was from witnesses at the time. I included

the form one in the information that was passed on to the

on-call Magistrate, Mr Brian SMITH as I said in Townsville,

who was the on-call Magistrate and that, that didn't arrive at

the Coroner at that time. I spoke to him at 7:25pm on that

night and advised him that information. Ah during that

conversation authority was provided to move the body of

139

the deceased from Townsville the following day by the

Government Undertakers, MORLEY's, here in town,

MORLEY, MORLEY's Funeral Parlour.

Just so I'm clear, that was 7:25pm on the 19th?

Kitching: 7:25.

Yeah.

Kitching: UI my notes here.

On the 19th or the 22nd?

Kitching: On the 19th.

Yeah.

Kitching: I'll just confirm that for you. Um - Look um I'm not ah, I'm

not aware of what that process was but certainly um, um

some matters may have occurred because ah UI I

conducted, continued to conduct investigations throughout

the weekend as you're no doubt aware um back here in

Townsville, oh sorry on Palm Island on the Saturday and

even on the Sunday back here in Townsville on the

Monday. Okay during those times I was also still um

committed to my other duties as Officer in Charge of

Townsville C-I-B ah and through that time obviously a very

busy time not only conducting that investigation in relation

to the death but also um numerous other investigations that

UI around Townsville by my staff in the C-I-B. Okay, ah

included on Monday morning, sorry which would have been

the 22nd is it?

22nd, yes.

Kitching: 22nd okay um I attended a regional management

conference as I do here at 8am every um Monday morning

and brief the Assistant Commissioner on matters of the

previous week. Now at about 10:40am on that morning that

form one that I completed on the Friday night which was

part of UI was faxed to the local Coroner here in

Townsville.

140

On the 22nd, 10:40am.

Kitching: 10:40am, okay, it was faxed to him by ah Constable Paul

HARVEY who was stationed here in our Townsville

intelligence office.

Yeah.

Kitching: For the purpose of gaining an order for a post mortem to be

conducted on the body of

Gee: Yeah.

Kitching: Now um the reasons why it was forwarded by HARVEY

was that I was obviously involved in a lot of other matters,

ongoing investigations including still making enquiries

about that. At that time I was informed that ah the post

mortem was to be carried out in Cairns and ah the order for

P-M had to be issued.

Mmm.

Kitching: Okay, um later that morning ah Constable HARVEY

advised me ah that the State Coroner, he'd received advice

from the Court here, the State Coroner had issued the

order for post mortem -

Mmm.

Kitching: - and that ah no order for P-M was going to be issued from

our local court here. Okay, now um I was also advised then

that Doctor LAMPEY was going to travel to Cairns and

complete the post mortem examination in Cairns because

he was committed to ah Superior Court um UI as a ah

witness at that time.

Yeah.

Kitching: Okay. Now I'm unaware, I don't know if the State Coroner

had any information of any other oral briefings from the R-

C-C or any other person in relation to the death at that

time. However the, for some reason the order for post

mortem was issued from the State Coroner's office.

141

Yeah.

Kitching: Okay. Now later that day at some time I received a request

um from the State Coroner's office for the pur - to receive a

copy of the form one for the purpose of linking, linking with

the order for P-M that was already issued.

Yeah.

Kitching: Now to facilitate that purpose I then, later that day and I

don't know what time I haven't got a record of that, later

that day I ah emailed a copy of the form one to the State

Coroner's office.

Yeah.

Kitching: Now that's nor - was normal practice and it still is normal

practice through suspicious deaths or death investigations,

okay. Um I know that I emailed that because there's a note

in the running log.

When, what date was that again?

Kitching: That was on the Monday.

The 22nd.

22nd.

Kitching: 22nd.

Can I just take you back a step then, um the form one other

than yourself had anyone else seen that, ah the regional

crime coordinator or UI?

Kitching: Ah it was certainly part of my investigative file um whether

the crime coordinator read it or not I don't believe he would

have um but it was certainly printed and placed within my

folder that day, ah that night sorry and um it was never

taken out again until such time as it was faxed to the

Coroner's office here.

142

Did ah Detective Inspector WILLIAMS from Ethical

Standards Command request to see a copy of the form

one?

Kitching: I'm not sure, he certainly turned up ah on Palm Island on

the morning of Saturday the 20th, okay. Ah I provided him

with a briefing in relation to all the interviews, investigations

to date, provided him with a copy of the tapes -

Yeah.

Kitching: - of the interviews I had done. Um I don't believe he would

have seen a copy of the form one, I'm certainly not aware

that he has because that was part of my investigation file,

it's not something that I gave him.

Yeah.

Kitching: But ah he certainly had copies of all the interviews and ah -

No officer senior to you though you remember expressly

asking for a copy of that form one -

Kitching: No.

- to see it or anything like that?

Kitching: Not at all.

The Roy BRAMWELL allegations themselves, can I take

you back to them. Have they been ah discussed between

yourself and the regional crime coordinator or Detective

Inspector WILLIAMS from E-S-C?

Kitching: Yeah. There was a meeting ah between, when um

Inspector WILLIAMS from E-S-C arrived on the island that

morning, okay, ah I took time out to provide him and ah Mr

WEBBER with a full briefing of the investigation to date.

Yeah.

Kitching: Ah that time now that's when as I said a little earlier that I

provided a copy of all the interview tapes at that time and

143

Inspector WILLIAMS um well I believe UI some of those

tapes okay.

Yeah.

Kitching: Ah in-included in those tapes was the interview that I

conducted with Roy BRAMWELL.

In ah that briefing did you make it ah specific or clear about

the nature of Roy BRAMWELL's allegations?

Kitching: Ah the reasons, at the end of the day the reasons why the

re-enactments were undertaken was because of those

allegations that were made. Okay and UI reasons behind

that as well.

Um so did you have a view as to the credibility ah at that

time on the Saturday morning, um ah as to the credibility of

BRAMWELL's allegations?

Kitching: Yes I did. The version that was provided to me by

BRAMWELL in my opinion um BRAMWELL could not have

possibly seen what he stated he, he, he gave in his

evidence in that, by that I mean he stated that HURLEY ah

had been assaulting the deceased in the

police station, okay. Um now the reasons why ah I indicate

that um his evidence or his information wasn't credible was

the fact that there was a UI filing cabinet UI his path. From

where he was seated in the police station, where this

incident allegedly took place he could not have possibly

seen what he said he saw. Now that was a catalyst to why

the re-enactments were started. Okay um in my opinion the

evidence of BRAMWELL during the investigation was his

ver - in his version lacked credibility, was untruthful

however at no time did I cross-examine his version during

the investigation. I merely sought out to clarify his version

and all the information provided by BRAMWELL ah was to

form part of the coronial investigation. My opinion is

supported in the fact that during the coronial inquest

BRAMWELL provided at least three differing versions of

events um and admitted during questioning by counsel that

he in fact lied during the inquest. There are no

144

recommendations made by the acting Coroner in relation to

that issue. My opinion was further supported during the trial

of Senior Sergeant Chris HURLEY when the senior counsel

for prosecution, Peter DAVIS stated to the trial judge that

the evidence of Roy BRAMWELL bordered on the farcical

when explained to the court why BRAMWELL was not

called as a witness. The trial judge requested this

information from the prosecution on the request of the jury

as to why the witness BRAMWELL was not called. And ah

that's the way I saw the evidence of BRAMWELL.

Mmm.

Kitching: I certainly accepted what he had told me and I, and I

sought out to investigate further about his version.

Okay. We might just take you to ah, we might come back

and re-visit that but I might take you to the post mortem

and some discussions with Doctor LAMPEY now.

Kitching: Okay.

Um is it true that you did not make any notes of the

discussions you had with the pathologist Doctor LAMPEY

when you briefed him?

Kitching: That's correct. Ah I ah picked up Doctor LAMPEY from the

Supreme Court in Cairns, um I don't recall what time, I've

probably got some notes here.

That would have been on the twenty -

Kitching: 23rd.

- Tuesday.

Kitching: The 23rd I arrived at the morgue at 12:40 um p-m -

Yeah.

Kitching: - on that day. So I collected Mr LAMPEY before at the

Supreme Court and along the trip from the Supreme Court

in Cairns to the ah Cairns morgue I provided a briefing of

the outline of the ah circumstances of the investigation as I

145

knew them at that time. Um that is a very short trip and I

managed to um brief him on, on as much as I could during

that time.

Would it be about ten minutes, the trip?

Kitching: It would be less than that.

Yeah.

Kitching: It's a very short, very short trip.

Yeah. Do you remember him seeking any specific, asking

any specific questions or?

Kitching: Ah no he didn't ah not specifically but we certainly

discussed the issues, ah in particular ah in relation to the

fall at the police station and the fact that there was no signs

of physical injuries on the deceased other than a small nick

on his eye um which didn't seem to be consistent with any

sort of assault or any ah violent physical force in any way,

shape or form. Those issues were certainly discussed.

Ah is it true that you referred to notes when you were

briefing Doctor LAMPEY or did you do it from memory?

Kitching: Ah the majority from memory um while I was talking to him

because obviously I was driving the car and then, and then

also during the invest, sorry during the post mortem ah I

stood with Doctor LAMPEY and provided him with continual

briefings about what had happened when he asked

questions.

Yeah.

Kitching: Um and anything that may have come up during the ah, the

post mortem during his examination whatever questions he

asked I certainly answered.

And ah do you remember how long the post mortem went

for roughly?

Kitching: No I don't, no I don't but it, it was quite a significant period

of time, it was certainly maybe an hour and a half.

146

Did you make any notes of the discussions you had with

Doctor LAMPEY?

Kitching: Yes I did particularly in relation to - I've got notes here, ah

in relation to the clothing that was taken off the deceased at

the time, ah and then ah I took sp-specific notes from him

in relation to the cause of death ah in the um, in the post

mortem.

Could I obtain a copy of those notes when we finish here

today?

Kitching: Yeah. No problems.

Ah at the inquest you said that, or words to the effect, that

you could not remember telling Doctor LAMPEY about the

Roy BRAMWELL allegations but that you thought that you

would have. Is that true?

Kitching: That's true. Um I certainly um intended to brief him in

relation to all the incidents, all, all the information I had

gathered through-throughout the investigation to that point.

Um now the mere fact that um BRAMWELL couldn't have

possibly seen what he said he saw coupled with the

evidence there was no physical injury on the body to

support any um assault or sustained assault, assault in any

way um certainly ah may have drifted from my mind. Ah I

was certainly conscious of the fact and I've been through

many post mortems throughout my service and certainly

conscious of the fact that ah any evidence that's gained

through the post mortem can be supported by information

that's gained during the investigation. Now certainly if there

had of been ah, ah a comment by Doctor LAMPEY in

relation to injuries that certainly would have triggered a

response from me outlining the allegation from

BRAMWELL or anyone else for that matter.

Yeah.

Kitcking: Okay.

147

To paraphrase it are you trying to tell me that ah in your

experience you only have proffered information to

pathologists that you thought was reliable and relevant?

Kitching: That's correct. Certainly ah anything that may assist the

Coroner, now in that regard I certainly went to great lengths

to obtain a full medical history of the um, ah of the

deceased so that it would assist him with his um, with his

examination. Now as I've said a number of times not only

during this interview and prior there was certainly no

evidence on the body of any physical assault. Okay, and

that was supported during both post mortem examinations,

the original post mortem and the subsequent post mortem

conducted later on. Um now um I specifically made an

enquiry to the State Coroner's State too to get support from

the Palm Island Hospital to obtain those medical records UI

to the Doctor.

Okay. Just while I'm there and this will take us back a little

bit ah, the discussions or the briefings with ah Detective

Inspector WEBBER and WILLIAMS, did they ah say

anything to you, indicate to you UI interview of the

BRAMWELL allegations?

Kitching: No. That certainly wasn't discussed. Um there was certainly

inconsistencies in his version and in fact it was impossible

for him to have seen what he said he saw that day. And

that is why the re-enactments were conducted to, not to

challenge his evidence, but to certainly try and prove one

way or the other whether it was factually correct.

Yeah.

Kitching: And the purpose of that was ah, ah subsequent inquest

down the track so the Coroner could be provided with all

the circumstances and all of the ah evidence to support

versions of all people involved whether it was ah

BRAMWELL or anyone else.

And just so we're clear, ah you were the primary

investigator at that stage weren't you?

148

Kitching: I was appointed by Mr WEBBER, yes.

Yeah. Okay. Right back to the form one and some of the

things you said at the inquest, ah at the inquest when

questioned by Mr BOE I think you said that it was an

oversight and not, or you agreed that it was an oversight

and not an intentional act not mentioning the BRAMWELL

allegations in the form one. Is that true?

Kitching: That's correct. As I said before um, ah the reasons that I

had not briefed in relation to the allegation of assault, um

were due to ah the issues that I have raised and the

serious doubt in relation to the version that had been

provided by BR-BRAMWELL and that those allegations

were not supported by the physical evidence on the body of

the deceased. Okay if any evidence of UI trauma as I

stated before had been noted by the pathologist during his

examination, this would have triggered the need for advice

in respect to the allegations raised by BRAMWELL. Okay.

At no time did I intentionally withhold information from the

pathologist and I did exhaust all my knowledge from the

investigation to that time consistent with the known

circumstances and the condition of the deceased. I

certainly provided a full and detailed briefing in relation to

the fall at the police station and this information was the

focus of the pathologist's findings supported in totality

during the trial of HURLEY later on.

Uh huh. Ah so there was a considerable volume of material

that you briefed Doctor LAMPEY about?

Kitching: I certainly spoke to him ah about the arrest, about the

transport to the police station, about the incident at the ah

rear of the police vehicle, the subsequent scuffle going into

the police station before. And then the fact that there was

no movement after the fall, okay, that he then gave up and

was then taken into the cells.

Yeah.

Kitching: Now also discussed obviously the medical evidence

because I had that document to me, sent to me, I provided

149

him with a copy of all that. There was allegations, or sorry

not allegations, informations within the Palm Island

community that were given to the local police that the

deceased had ah been drinking bleach on the day, day he,

day that he died, or night before he died. Um and that was

also of great concern to the ah, to the pathologist um and it

was obvious once the ah, the body was opened up that the

bleach and the medical side of things weren't ah consistent

with the cause of death.

Just so I heard that correctly, you discuss the nature of the

scuffle between Senior Sergeant HURLEY and

from the van prior to the fall, is that right?

Kitching: That's right, yeah.

With Doctor LAMPEY, okay.

Kitching: Okay.

Um in hindsight do you think you should have made

specific mention of the BRAMWELL allegations in the form

one?

Kitching: In the form one in an ideal world it'd be ah, it'd be ideal to

have everything forwarded to the Coroner. However the

purpose of the form one is to provide a brief to the Coroner

in relation to the circumstances of death as known at that

time and ah for the Coroner to be satisfied there is a

requirement to have an order for post mortem issued so the

circumstances to the cause of death can be ah

ascertained. Alright, now I provided a full briefing to the

Coroner here in Townsville as is normal protocol and it's

not protocol to brief the State Coroner in criminal

investigations or in any investigation in relation to deaths. I

briefed the Coroner here at 7:30, 7:25pm that night with all

the information available to me and that information UI

Coroner here on that Monday to provide that order for the

P-M. Now the State Coroner has somehow or for some

reason issued the order for P-M down there. Subsequently

I provided that same information that was with the Coroner

150

here to the Corner, to the State Coroner's Office through

the Coronial Support Unit.

Yeah.

Kitching: Okay. Now um also ah after the post mortem was

conducted that would have provided some direction in

relation to an investigation, okay, because as it was right

up until that time the post mortem was conducted nobody

had any understanding of what caused this man's death.

Okay, and we didn't know what we were investigating so

the whole circum, the whole lead-up into the post mortem

was to gain as much evidence as quickly as possible as

required um with the least amount of UI effort as it possibly

can be ah obtained for, for the purpose of the Coroner for

later on. Okay, now um normal process ah is here um once

that ah information had, had been ah obtained in relation to

the cause of death, it was my intention at the first, ah

earliest opportunity to then provide a supplementary form

one to the Coroner to provide that information and that um

supplementary form one would be coupled with a précis of

all statements from interviews conducted and if necessary

a full copy of all those statements. Now that's normal

process, I do that UI any investigation in Townsville ah and

that's always done ah because as you're no doubt aware

some death investigations can take a considerable period

of time, and ah I ensure at least monthly the Coroner's

updated on those, on those matters. That was certainly my

intention but as you are no doubt aware the, the

investigation was taken from me ah and handed over. Now

what process took place after that I don't know. Now I

certainly wasn't in a position to provide any further advice

to the Coroner after that.

Okay.

Inspector asked you before in hindsight you know do

you think you might have um erred in not advising of the,

the allegation, ah in, in hindsight and, and we're all normal

investigators here, we sort of don't have the, the ability of

hindsight, but would you agree that when you used the

protocol that he didn't appear to have any injuries that, that

151

wasn't consistent with what he was saying and after, after

the ah autopsy he had some massive injuries which

obviously didn't show by way of bruising so would it be

correct to say that your protocols for advising Coroners

would have changed now in view of, in view of that?

Kitching: Certainly that information could be provided to the Coroner

ah however as I sta-stated that, that was a very busy time,

a very turbulent time, UI conducting a very serious

investigation that happened on the Friday, we worked right

into the night Friday night, throughout Saturday and

Sunday I was on rest days, worked continuously through

those two days. Continued on with my other supervision of

ah investigations throughout the Townsville area at that

time coupled with Monday morning back to work, briefings

with the ah, ah Assistant Commissioner and other ah

commissioned Officers in Townsville so during that time it

was very hectic, very busy. Now um the time that that form

one went to the Coroner, okay which was the Coroner here

in Townsville um I had not had an opportunity to go back

and modify that form one. In hindsight as you say

hindsight's a wonderful thing, in hindsight it probably would

have been great in an ideal world to have all that

information there and then. However, we also have policy

and procedure that shows that we can provide further

information in the form of a supplementary form one which

identifies any further evidence or any further information

that maybe um, ah of interest or benefit to the Coroner

okay at a later time. Now consequently once those um, ah

injuries were identified, or massive injuries as you called

them were identified in the deceased at the time of the post

mortem that was certainly an, an appropriate time then to

have the, those statements forwarded to the Coroner and

as I have just said that was certainly my intention to do, to

do that. However that night when I returned from Cairns

was when I was advised that the Commissioner had

instructed that the matter be handed over to the C-M-C so

it would be my belief then that ah the matter would be a

matter for the C-M-C investigators to proceed with ah, with

UI with the statements that I had taken.

152

On the Monday you said you briefed up to the ah Acting,

Acting Assistant Commissioner

Kitching: That's correct.

Ah to Acting Chief Superintendent um 220

232. In summary, Kitching says there was no intention to withhold Bramwell’s allegation

from the government pathologist. He previously indicated under cross-examination in

the coronial inquest that the failure to mention Bramwell’s allegations to Dr Lampe was

an oversight and he offered the same response in subsequent interviews. Kitching

suggests that if his memory had been prompted he definitely would have mentioned

these allegations.

233. The CMC Review concluded that Kitching provided inconsistent accounts. It stated:

Inconsistency in Kitching’s evidence

In explaining why he did not include Bramwell’s assault allegations in the

Form 1 or inform the pathologist personally, Kitching say, variously:

• he didn't have the opportunity to go back and modify the Form 1 after the

assault allegations were made and before it was sent to the Coroner.

• he couldn't be one hundred percent sure whether he told Dr Lampe about

the allegation or not.

• he ran through all the information he knew at the time, and possibly told

Dr Lampe about the allegation.

• he certainly intended to brief Dr Lampe about all the incidents and on all

the information he'd gathered up to that point in the investigation.

• the information may have 'drifted from his mind' because of his doubts

about Bramwell's credibility and the fact there was no evidence of

physical injury on Mulrunji's body.

• he did not intentionally not advise Dr Lampe about the allegation, it was

'most definitely' an oversight.


153

• the reason he had not briefed Dr Lampe in relation to the assault

allegation was because of the serious doubt about Bramwell's version

and the lack of supporting physical evidence on Mulrunji's body.

• If Dr Lampe noted any evidence of trauma during his examination, then

this would have ‘triggered the need for advice in respect of the

allegations raised by Bramwell.221

234. With respect, an examination of these various aspects reveals that Kitching’s version

was consistent with one exception. That exception was the comment that ‘the reason

he had not briefed Dr Lampe in relation to the assault allegation was because of the

serious doubt about Bramwell’s version and the lack of supporting physical evidence on

Mulrunji’s body’. The CMC Review comment suggests a conscious decision to withhold

the information from the pathologist. However, closer scrutiny of the IRT interview

suggests that the comment may have been taken out of context. The CMC Review set

out the question and a limited extract of the response:

The IRT put to Kitching ‘To paraphrase it are you trying to tell me that … in

your experience you only have proffered information to pathologists that you

thought was reliable and relevant?’ to which Kitching replied ‘That’s

correct’.222

235. The full response, as set out above, was:

Kitching: That's correct. Certainly ah anything that may assist the

Coroner, now in that regard I certainly went to great lengths

to obtain a full medical history of the um, ah of the

deceased so that it would assist him with his um, with his

examination. Now as I've said a number of times not only

during this interview and prior there was certainly no

evidence on the body of any physical assault. Okay, and

that was supported during both post mortem examinations,

the original post mortem and the subsequent post mortem

conducted later on. Um now um I specifically made an

enquiry to the State Coroner's State too to get support from

the Palm Island Hospital to obtain those medical records UI

to the Doctor.223

221 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 109. 222 Ibid 104. 223 Inspector Interview with Senior Sergeant Raymond Kitching (Townsville Police Station, 1 August 2007), Tape 1 [765]-[778].

154

236. Kitching’s response sets out some of the additional information he sought to obtain,

such as medical records and anything that may assist the Coroner. His response

appears directed towards explaining the material he generally obtained for the

consideration of the Coroner, rather than specifically responding to this issue. It should

not be extrapolated from this response that Kitching deliberately withheld Bramwell’s

allegations, particularly when earlier in his interview he specifically stated that his

failure to inform Dr Lampe of this allegation was through an oversight. I am, however,

more concerned with an inconsistency that may be found in his procedural fairness

submission which additionally addresses Florence Sibley’s version of events. In his

submission he states:

The assault allegation [of Roy Bramwell] prima facie, was completely

inconsistent with Kitching’s observations of the body of the deceased in the

light of more than two decades policing experience. The body was unmarked

with the exception of a small nick above the eye. There was no bruising

around the eye. There was no bruising anywhere.

And so, while assault had not been discounted by Kitching, the allegation

was completely at odds with the primary, real evidence – the condition of

Mulrunji’s body...

Detective Kitching was the receiver of the allegation of the assault –

(repeated assaults in fact on Roy Bramwell’s account). In his years of policing

experience Detective Kitching had seen hundreds of assaults and had not

seen one where the person had died from punches to the body. Further,

where the assaults had been serious, there was always an indication on the

body that there has been an assault.

Similarly the allegation of Penny Sibley, who was interviewed a couple of

days later, was inconsistent with Detective Kitching’s examination of

Mulrunji’s body.

In the briefing of Pathologist Dr Lampe, Detective Kitching exhausted all his

knowledge from the investigation up to that point time, which debriefing was

consistent with the known circumstances and the condition of the

deceased.224

237. I am concerned with the inference in this submission that Kitching, through applying his

knowledge of assaults gained from his policing experience, determined that the

224 Letter of Paul Byrne to Crime and Misconduct Commission 'Response to Crime and Misconduct Commission's Draft Palm Island Report on Behalf of Detective Senior Sergeant Raymond Kitching', 29 April 2010, 2-3.

155

allegations of assaults were inconsistent with his observations of the deceased’s body

and therefore not worthy of mention to the government pathologist. His failure to brief

the pathologist on all of the information known to him at that time demonstrates an

unacceptable level of judgement. The government pathologist is the person best

positioned to make the observations as to the physical consequences of assaults.

However, I find that there is insufficient evidence to support an assertion that Kitching

intentionally failed to advise the government pathologist of the allegations of assault

raised by Bramwell and Sibley. If it is accepted that Kitching did not consider these

allegations to be credible, there appears to be no logical reason for withholding them

from the pathologist. Raising these allegations with the government pathologist would

have provided an excellent opportunity to independently refute them. Consequently,

deciding not to disclose this information would be nonsensical.

238. It is similarly illogical to suggest that Kitching withheld the information to protect Hurley

from the assault allegations raised against him. Kitching had documented the matter

himself and knew that other officers, including an officer from ESC had conducted a

re-enactment with Bramwell. Kitching knew the level of interest associated with deaths

in custody and the level of scrutiny that would be applied to this matter by the CMC and

ESC. That Kitching remained silent in the post mortem on these grounds is simply

implausible.

239. I consider that there is sufficient evidence to determine that Kitching did not advise the

government pathologist of the allegations of assault made by Bramwell at the time that

the autopsy was conducted. Kitching cannot positively remember briefing Dr Lampe on

these allegations and no notes were made by either Dr Lampe or Kitching to suggest

that this information was discussed. These allegations were significant. Had the

government pathologist been advised of this information, I conclude that the allegations

would have been fully explored, tested and noted. The failure of either Kitching or

Dr Lampe to make any record in relation to the allegations leads me to conclude that

no verbal briefing was conducted in relation to these issues.

240. It is apparent from the information provided by Kitching that he had adopted the

practice of initially preparing a Form 1, obtaining the results of the autopsy and later

submitting a supplementary Form 1 with any associated material to the Coroner. This

practice appears based upon the assumption that these forms are prepared solely for

reporting information to the Coroner and, in the case of the Form 1, to allow the

Coroner to make an order for post mortem. This practice assumes that the Form 1 is a

formality. It shows no appreciation for the fact that the information may be used by the

government pathologist, nor is the practice congruent with Service policy. OPM s 8.4.8

clearly outlines that the purpose of the Form 1 is to assist the Coroner in deciding

156

whether an autopsy should be ordered, and to assist the pathologist performing the

autopsy to establish the cause of death. Additionally, OPM s 8.4.3 specifically orders:

In cases where additional or relevant information comes to hand that may

assist a government pathologist in determining a cause of death at a time

prior to an autopsy being conducted, investigating officers are to contact the

pathologist as a matter of urgency and provide that information on a

Supplementary Form 1.

241. It is likely that the practice adopted by Kitching would usually not impact upon the

results of autopsies. It is my view that the allegations of assault made by Bramwell and

Sibley should have been included in the Form 1. Alternatively, a supplementary Form 1

should have been prepared outlining these allegations. In either case, this information

should have been provided to the pathologist prior to the post mortem. The inclusion of

that information would have allowed Dr Lampe to conduct examinations that specifically

addressed the allegations made by these witnesses. It is irrelevant that Dr Lampe

comprehensively and competently conducted the post mortem and in doing so

independently addressed this issue. The issue at hand is that Dr Lampe should have

been provided with all information, regardless of its veracity, to ensure that he, as the

government pathologist, had every opportunity to conduct his examination diligently.

242. I recognise that the CMC Review have highlighted that the allegations made by

Florence Sibley were not included in the Form 1. I note that in the précis of statement

of the Form 1 it was stated that ‘Hurley then physically restrained the deceased and

struggled with him to the rear door of the police station where they both fell to the

ground’. I do not consider this description adequately covered the specific allegation

made by Florence Sibley and would consider this deficient in outlining the information

that she provided in relation to this matter. However, I do note Kitching stated in the

interview with the IRT extracted above:

Uh huh. Ah so there was a considerable volume of material

that you briefed Doctor LAMPEY about?

KITCHING: I certainly spoke to him ah about the arrest, about the

transport to the police station, about the incident at the ah

rear of the police vehicle, the subsequent scuffle going into

the police station before. And then the fact that there was

no movement after the fall, okay, that he then gave up and

was then taken into the cells.

157

Yeah.225

243. I also note the following comments made by Kitching later in the interview:

Just so I heard that correctly, you discuss the nature of the

scuffle between Senior Sergeant HURLEY and

from the van prior to the fall, is that right?

KITCHING: That's right, yeah.

With Doctor LAMPEY, okay.

KITCHING: Okay.226

244. I accept Kitching’s version that he verbally informed Dr Lampe about the subsequent

scuffle between Mulrunji and Hurley from the van prior to the fall. I note the witnesses

who provided evidence of the struggle included Hurley, Bengaroo and Sibley. It is

impossible to determine with any certainty whether Kitching, in discussing the nature of

the scuffle between Hurley and Mulrunji, specifically outlined Florence Sibley’s version

to Dr Lampe. However, there is sufficient evidence to infer that Kitching did not do so.

Dr Lampe has stated that he made no records of being told of any assault allegations.

Kitching has accepted that he must not have told Dr Lampe of these allegations. Most

compellingly, Kitching indicated in his procedural fairness submission that Sibley’s

allegation was inconsistent with his examination of Mulrunji’s body. He comments that

his briefing to Dr Lampe was consistent with the known circumstances and the

condition of the deceased. From Kitching’s comments I am satisfied that he did not

verbally brief Dr Lampe of Sibley’s version.

245. I have considered the seriousness of this allegation and I believe that the allegation

raised by Bramwell and Florence Sibley was information that should have been made

available to the government pathologist. The failure to provide a Supplementary Form 1

containing this information, or at the very least to verbally brief the pathologist of this

information, appears to be contrary to Service policy.

246. OPM s 8.4.3 provides that in cases where additional or relevant information comes to

hand that may assist a government pathologist in determining a cause of death prior to

an autopsy being conducted, investigating officers are to contact the pathologist

urgently and provide that information on a Supplementary Form 1. Although I

acknowledge that Kitching had never been involved in a death in custody investigation,

225 Inspector Interview with Senior Sergeant Kitching (Townsville Police Station, 1 August 2007), Tape 1 [858]-[869] (emphasis added). 226 Ibid [884]-[893].

158

as an experienced officer he should have known the seriousness and level of scrutiny

that applies to any death in custody. It was incumbent on him to ensure that procedures

that govern police officers in investigating these matters were complied with implicitly.

In this regard, Kitching has not complied with the requirements of the order outlined in

OPM s 8.4.3.

247. I consider Kitching’s failure to inform Dr Lampe of the assault allegations (whether

reliable or not) a significant departure from Service requirement and in the

circumstance would warrant the commencement of disciplinary action. I note that

Kitching included unconfirmed information concerning Mulrunji taking bleach. Similarly,

he should have included information of the alleged assault made by Bramwell and

Florence Sibley.

248. I am satisfied after perusing the Form 1 that the description found within the précis of

statements, namely that ‘Hurley physically restrained the deceased and struggled with

him to the rear door of the police station where they both fell to the ground’, was

sufficient to forewarn the government pathologist of the possibility of physical injury on

the deceased. As such, I believe that Kitching’s failure to brief the government

pathologist of the assault allegations caused no impact upon the performance of his

duties. This is evident through an examination of the medical testimony provided in the

course of this matter as Dr Lampe’s initial findings from the post mortem were

substantially consistent with findings made during a subsequent post mortem

examination. It is fortunate that Kitching’s failure was not detrimental to the outcome of

the post mortem. Nevertheless, the fact that Kitching’s failure to inform Dr Lampe had

no adverse impact upon the post mortem is testimony to Dr Lampe’s actions and does

not relieve Kitching of responsibility. Kitching’s failure had the potential to seriously

compromise the investigation and did reflect poorly on the investigation.

249. I do not consider Kitching’s failure to inform Dr Lampe of the assaults constituted

misconduct. However, for reasons already outlined and Kitching’s acceptance that the

allegations of assault should have been brought to the attention of Dr Lampe, it is not

my intention to commence disciplinary action, but to provide managerial guidance.

250. Webber was not examined at the inquest before the Acting State Coroner in relation to

the completion or submission of the Form 1. Webber was questioned by the IRT.

Were you aware of the information contained on that form

one?

159

Webber: Yes. I had examined the ah the form one on the evening of

the ah, of Friday the ah, the 19th of November.

At that time when you examined it were you aware of the

BRAMWELL allegation?

Webber: No.

When you became ah, when that allegation became

apparent to you ah did it, did you think to have that

included on the form one?

Webber: No I did not.

Would you be able to explain that or would you, why

wouldn't you put an allegation on there that might have had

some material ah effect with the pathologist?

WEBBER: Well, well it wasn't a de, it wasn't a deliberate ah failure to,

to ah s-submit it. As I say at that stage the form one was

being submitted in relation to the obtaining of a ah post

mortem certificate in order that the ah, the P-M could be

con-conducted. It was my understanding that the P-M, that

ah form was going to be ah, going to be lodged

immediately to the ah, to the Townsville Coroner. It's only

subsequently I've sort of become aware that it didn't

actually get to the ah Townsville Coroner until the Monday

morning. But in any event um I don't consider that it was

ah, that it had any ah, any significant effect on the ah, in

the investigation. I note that the Coroner said that the

crucial information was not available to the Pathologist at

the time of the first autopsy and that, that's incorrect,

obviously Detective Senior Sergeant KITCHING was in

attendance in, in person at the inquest, I believe he would

have informed the Pathologist concerning what had

occurred during the investigation to date and after the ah

completion of the, of the initial form one and I also know

that on some occasions some Pathologists actually prefer

not to know too many details of a Police investigation as

they believe that it might actually cloud their ah, their, their

findings.

160

Are you aware if ah KITCHING advised ah Doctor LAMPEY

during or prior to the ah autopsy?

Webber: I believe he did but I, I obviously wasn't there at the time so

I can't ah, can't say for certain that he actually did. But I am

certainly aware that he, he attended the inquest for the

purpose of ah, of liaising and informing the Pathologist in

person ah the investigation and that's a normal

investigative practice where, where we have ah

investigators attend the inquest to do exactly that.227

251. OPM s 1.17 requires the Regional Crime Co-ordinator to ‘be directly responsible for the

investigation of a police related incident, unless otherwise directed by the Deputy

Commissioner, Deputy Chief Executive (Operations), or unless responsibility for the

investigation is assumed by the Internal Investigation Branch, Ethical Standards

Command or the Crime and Misconduct Commission’. Consequently, Webber was

responsible for the investigation from 19 November 2004 when he was advised of the

death in custody until 24 November 2004 when the CMC took responsibility for the

investigation.

252. The Form 1 is a significant source of information for the pathologist. It should reflect the

full details known at the time – whether verified or unverified – of the incident under

investigation. I am satisfied that Webber, as the RCC, should have made inquiries

about the submission of the Form 1 and been familiar with the contents during his

management of the investigation. Webber was responsible for the overall conduct of

the investigation and had a responsibility to overview this aspect as part of his duty to

ensure a complete and impartial investigation was undertaken. I accept that the

Bramwell allegation was not known to Webber when he inspected the Form 1 and that

he understood the Form 1 was immediately submitted to the Townsville Coroner. In

itself, this demonstrates some limited understanding of the process that applied to a

death in custody. However, even accepting this belief, it does not satisfactorily explain

the failure to raise the allegation in a Supplementary Form 1. I accept that Webber

inspected the Form 1 as part of his responsibility for the investigation. Ensuring

additional information was provided to the coroner appears to be a natural corollary of

this activity and is consistent with the procedure in OPM s 8.4.8. Nevertheless, in the

absence of some aggravating factor, I do not consider Webber’s failure as alleged to be

misconduct. I do consider the failure might constitute a breach of discipline.

227 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [161]-[220].

161

253. Webber is now acutely aware of the importance of the Form 1 and the Supplementary

Form 1 as this was made abundantly clear to him during the interview with the IRT.

Webber was not questioned about the Form 1 and Supplementary Form 1 in the

Coronial inquest. Equally, no adverse comment was made against Webber by the

Acting State Coroner with regards to this issue, notwithstanding managerial action

could be considered in the circumstances.

254. Regardless of whether I find some degree of culpability in Webber’s failure to ensure

the Supplementary Form 1 was submitted, for reasons outlined above, I do not propose

to commence disciplinary action. However, it is my intention to proceed by way of

managerial guidance.

255. The CMC Review also intimates a conspiracy to deliberately withhold information from

the government pathologist. In the CMC Review it is stated:

We are not concerned here with whether Bramwell and his evidence were

ultimately found to be credible or not. The relevant issue is that it was

inappropriate for the investigators to completely dismiss Bramwell’s evidence

at that point in the investigation and to decide to withhold that information

from Dr Lampe.228

256. No evidence is offered to support the allegation that ‘the investigators … decided to

withhold that information’. Read literally, it suggests a conspiracy which necessarily

would have had to involve Kitching, Webber and Williams. The allegation is not

repeated elsewhere. It is not clear whether the allegation was meant to be taken

literally or whether it represents careless drafting. In my view, this allegation is

baseless. I can find no evidence to support the assertion that Kitching, Webber or

Williams conspired to withhold information from the government pathologist.

Consequently, I do not propose to pursue any disciplinary or managerial action in

response to this allegation.

Allegation 8: Lack of Support to Indigenous Witnesses

257. In the course of the investigation a number of Indigenous witnesses were interviewed,

including Lloyd Bengaroo, Roy Bramwell, Patrick Bramwell, Florence Sibley, Gladys

Nugent, Edna Coolburra and Gerald Kidner. The Acting State Coroner was critical of

the failure to engage a support person during these interviews. She said:

It has been abundantly clear that throughout this investigation, it was not until

the Crime and Misconduct Commission assumed investigations, (on 24


162

November 2004) that there was any proper support or assistance provided to

Indigenous witnesses. Ms Lisa Florence assisted Detective Inspector

Webster in talking with people. Her help was invaluable. It was essential to

build rapport and make connections to establish sufficient trust for proper

investigations and statements to be taken. Without such assistance the

results are plainly deficient, leaving both investigators and the witnesses at

cross purposes. Even such a witness as Lloyd Bengaroo, who was himself a

Police Liaison Officer, was reticient and hesitant in giving his statements.

There may of course be other explanations for his reticence, but a support

person, independent of both the police and local community might well have

elicited more information at an early stage.229


Difficulties in cross-cultural communication between police and Aboriginal

witnesses may have impaired the effectiveness of the investigation of this

matter by police. Significant attention should be given by the Police

Commissioner to the training of officers, particularly those who are working in

or near large Indigenous communities such as Palm Island in relation to

communication with Indigenous people and the use of support persons and

interpreters. This is a matter that is fundamental to the effective and fair

administration of justice in Queensland.230

259. The CMC Review echoed this criticism:

In the CMC’s view the original investigation officers did not comply with their

obligations under the OPM with respect to dealing with Indigenous witnesses.

In addition to its overall provision for Indigenous persons to be considered as

having special needs, whether witnesses or suspects, the OPM clearly stated

that when questioning Indigenous persons the existence of a special need

should be assumed until the contrary was clearly established.

There is simply no evidence that the question of special need was considered

at any point.

Although seven Indigenous witnesses were interviewed, there is no evidence

of any action being taken to compensate for the special need such as

providing a support person. There is no evidence of the witnesses being

229 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10 (emphasis added). 230 Ibid 32.

163

offered the opportunity to have a support person. Questioned about this in

retrospect, Webber and Kitching both asserted that at no time did they

consider that a support person was required.

…

Webber and Kitching’s statements show a significant lack of understanding of

what might be involved for an Indigenous person in being interviewed.

…

Kitching said the reason for speaking to the witnesses was to gain

information in relation to the circumstances surrounding the death; it was

simply an open question for the witnesses to tell him what they knew about

the incident; and there was certainly no pressure placed on the witnesses or

any cross-examination. Such views failed to recognise that the PLO at least

would be placed in a conflict situation (his role within the police establishment

versus his family and cultural loyalties) simply though the very fact of a death

in custody.231

260. The CMC Review concluded that Webber and Kitching had failed to comply with OPM

s 6.3.6. As a consequence, they recommended both officers be disciplined for failing to

meet the special needs of the Indigenous witnesses.232

261. The Police Powers and Responsibilities Act 2000 places specific obligations upon

police officers interviewing Torres Strait Islanders and Aboriginal persons.233 However,

these provisions only applied to persons being questioned as suspects; they did not

apply to a witness.234 Recognition of this limitation is useful in examining the Service

policy which the CMC Review alleged had been breached. The relevant policy was set

out in OPM s 6.3.

262. OPM s 6.3.1 described a person with special needs as one ‘who, because of any

cultural, ethnic, physical, mental, psychiatric, educational, or other condition or

circumstance, have a reduced capacity to look after or manage their own interests’.

The policy also indicated that an Aboriginal or Torres Strait Islander should be

considered as having a special need until the contrary became apparent. There is no

231 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 118-9. 232 Ibid 166-7. 233 Section 251. 234 Section 246.

164

question that each of the interviewees listed in paragraph 257 were Aboriginals for the

purpose of this policy.235 OPM s 6.3.6 provided that:

POLICY

Persons of Aboriginal and Torres Strait Islander descent are to be considered

people with a special need because of certain cultural and sociological

conditions. When an officer intends to question an Aborigine or Torres Strait

Islander, whether as a witness or a suspect, the existence of a need should

be assumed until the contrary is clearly established using the criteria set out

in s. 6.3.1: 'Circumstances which constitute a special need' of this chapter.

263. The text of OPM s 6.3.2 is instructive in understanding the politic scheme for the

treatment of persons having special needs. It provides, in part:

ORDER

When an officer wishes to interview a person, the officer is to first establish

whether a special need exists. In addition to the statutory provisions of the

Police Powers and Responsibilities Act and Responsibilities Code referring to

Aborigines and Torres Strait Islanders, children, vulnerable persons and

intoxicated persons, the officer is to evaluate the ability of the person to be

interviewed to look after or manage their own interests and is to establish

whether the person meets the following conditions.

The person is to be:

(i) capable of understanding the questions posed;

(ii) capable of effectively communicating answers;

(iii) capable of understanding what is happening to him/her;

(iv) fully aware of the reasons why the questions are being asked;

(v) fully aware of the consequences which may result from questioning;

and

(vi) in the opinion of the investigating officer, capable of understanding

his or her rights at law.

235 See OPM s 6.3.6.

165

In making an evaluation, the officer is to take into account the following

factors:

(i) the seriousness of the condition giving rise to the special need. For

instance, some physical handicaps have no effect on the ability of a

person to understand and to answer questions. Conversely, some

physical conditions affect the ability of a person to communicate;

(ii) the reason for which the person is being questioned, whether as a

witness, or in relation to their complicity in an offence. Where the

information to be obtained may later be used in a court, it will be

necessary to show that any special need was overcome;

(iii) the complexity of the information sought from the person; and

(iv) the age, standard of education, knowledge of the English language,

cultural background and work history of the person.

When questioning anyone with a special need officers must comply with

ss 249 and 250 of the Police Powers and Responsibilities Act.

264. OPM s 6.3.2 twice refers to the provisions of the Police Powers and Responsibilities

Act 2000 relating to suspects which, as I have indicated earlier, has no application. It is

clear that the policy has a wider application than those limitations inasmuch as it

requires consideration of factors ‘in addition’ to the Police Powers and Responsibilities

Act 2000. Nevertheless, the references to the Police Powers and Responsibilities Act

2000 are relevant to understanding those other factors. The criteria set out in this

section are used ‘to evaluate the ability of the person to be interviewed to look after or

manage their own interests’. The reference to ‘in addition’ undoubtedly extends the

application of OPM s 6.3 beyond the questioning of suspects. However, the extension

is not absolute. It seems to me that the policy should nonetheless be limited to those

persons whose interests might be compromised. This interpretation is consistent with

the overall scheme which includes consideration of ‘the reason for which the person is

being questioned’ and ‘the consequences which may result’.

265. The complaint of the CMC Review should be understood in this context. The CMC

Review opined:

166


obligations under the OPM with respect to dealing with Indigenous

witnesses.236

266. The CMC Review is mistaken when it speaks of an obligation. The IRT suggested, in

contradistinction, that there was no obligation. The CMC Review accepted that the IRT

statement was ‘technically correct’.237 That is to say, the CMC Review accepted the

accuracy of the IRT’s observation that the OPM did not place an obligation on the

investigators to use a support person. Moreover, the CMC Review’s statement appears

to reflect a limited conception of the considerations set out in ch 6 of the OPM. The real

issue to be determined when assessing special needs ‘is to evaluate the ability of the

person to be interviewed to look after or manage their own interests’.238 The relevant

factors are set out in s 6.3.2. The CMC Review does not appear to have considered

these factors which make it clear that the decision to provide a support person is

discretional.

267. Kitching responded to this matter when interviewed by the IRT. In that interview

Kitching stated:

Um I might move on to the next point. Ah this is a very

general point, it's at page ten ah in the um Acting State

Coroner's findings. I've marked it paragraph five, it's the

last paragraph, it's a long paragraph but I’ll read it. Ah it has

been abundantly clear that throughout this investigation it

was not until the Crime and Misconduct Commission

assumed investigations on the 24 November 2004. If there

way any proper support or assistance provided to

indigenous witnesses, Ms Lisa FLO-FLORENCE assisted

D I WEBSTER in talking to people. Her help was

invaluable. It was essential to build a rapport and make

connections to establish sufficient trust for proper

investigations and statements to be taken. Without such

assistance the results UI leaving both investigators and the

witnesses at cross purposes. Even such a witness as Lloyd

BENGAROO who is himself a Police Liaison Officer was

reticent, hesitant in giving his statements. There may of

course be other explanations for his reticence but as a core

236 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 118. 237 Ibid 121. 238 OPM s 6.3.2.

167

person independent both police and local community might

well have elicited more information at an early stage. Once

the C-M-C took charge of the investigation UI thoroughly,

UI and impartially. The response by senior police officers to

this inquest should be cause for some reflection. There was

little acknowledgement that the investigation by the police

was deficient. Ah and then there's a point made about clear

directives from the Police Commissioner and

recommendation 39 also refers but it's a general

recommendation. I'd like to ask you some general

questions um to start with about your experience,

experience in dealing with indigenous witnesses and

complainants. Can you just tell me something about your

experience?

Kitching: Yeah. Um a highly extensive experience that I've gained

throughout my policing service, policing in remote and

isolated communities, I mentioned this before. In particular

working with indigenous persons whether they were

victims, witnesses, offenders or associates and any other

persons that I, or any other associates of persons that I've

just mentioned. During that time I developed a very good

communication style with indigenous persons consistently

and consistently demonstrating UI support towards those

persons who identify as indigenous persons. Um I've had a

long and extended career in outback Queensland from the

ah Police District of Charleville and Mount Isa when I've

gone and dealt with ah persons of ah indigenous

background and I've had no issues at all whatsoever in

dealing with any of those pes-persons throughout my

career.

So if I put to you that you dealt with hundreds of ah

persons?

Kitching: Easily.

Thousands maybe even?

Kitching: Well I don't know about thousands but it was certainly

hundreds.

168

Yeah, yeah. Okay. Any complaints from ah people of

aboriginal ah background against you?

Kitching: No complaints at all that I'm aware of.

Any ah criticism judicial or otherwise?

Kitching: Never.

Okay. Um did you think at any stage that a support person

for any witness was required?

Kitching: No, not at that stage. At, at, at the time um the reason or

the purpose of speaking to those persons was to gain

information that they may be able to provide in relation to

circumstances surrounding this death. Okay. Um it was

simply an open question for them to tell me what they knew

of the incident. There was certainly no pressure or cross-

examination of whatever kind placed on these persons in

any way, shape or form.

Logistically, how would you have gone about obtaining a

support person if one was required?

Kitching: Well there was certainly none, none available to my

knowledge on Palm Island. There was certainly ah through

the Justice group and the um Aboriginal and Torres Strait

Islander Legal Aid ah on Palm Island Field Officers, they

were included in the process right from the start.

Mmm.

Kitching: Um –

At, at that they were UI Detective Inspector WEBBER, is

that right?

Kitching: That, that is –

Yeah.

Kitching: - that's correct, yeah.

J-P's on the island?

169

Kitching: I'm un-unsure.

Yeah.

Kitching: U/I. But certainly none of those witnesses indicated to me

they ah at any time wished to UI.

There was no reticence by anyone –

Kitching: No.

- you wanted to talk to?

Kitching: None whatsoever.

Ah can I then go to some general questions about ah

Police Liaison Officer BENGAROO. What was his

demeanour like when you first met him?

Kitching: Um I had met ah Lloyd BENGAROO ah on a couple of

occasions prior, prior to this date when I'd been on Palm

Island in relation to other criminal investigations. Um I had

not had any dealings with him other than to um say gidday,

be personal, be friendly towards him. Um he was certainly

quite ah quiet, quite shy, ah quite withdrawn, ah reasonably

hard to understand. I think if you have a little listen to the

ah trans or read the transcripts I had to repeat on a number

of occasions what he'd said just for the purpose of clarity so

the tapes could pick up for the purpose of the Coroner

having a full understanding of what he had to say um but

that's in his demeanour. Personally noticed it over the

years even subsequent to this matter when ah I've had

opportunity to speak to him in Townsville he's certainly ah

wouldn't say withdrawn but he's certainly a quiet type of

person.

Was he upset?

Kitching: I don't know if upsets the word. He certainly um, ah

certainly had feelings in relation to the incident but ah he

certainly wasn't ah emotionally distressed.

Was he sombre?

170

Kitching: Very sombre, very quiet.

Ah did you I think I'll paraphrase this but you found

BENGAROO, would it be fair to say you found

BENGAROO difficult to talk to?

Kitching: Ah not difficult to talk to but difficult to understand. He's ah,

he, he speaks very quietly, he um he-he's not very

articulate.

Yeah.

Kitching: Um because I've spoken to many, many indigenous

persons over the years like that ah and I still have no

issues with obtaining a, an accurate version from them but

just a matter, it's just a matter of UI, a little bit more dried

out, it's about going over issues to try and get the truth or

the meaning out of what they're trying to say.

Mmm. Yeah, okay. Ah nothing else?

When you said you, you know we were talking about a

support person, what was the mood of the people that you

were interviewing?

Ah –

What was their demeanour?

Kitching: They seemed quite fine. Without listening to the interviews

again you know to refresh my memory I maybe again only

guessing going from memory but they certainly weren't

hesitant or backward. Ah they were certainly there of their

own free will and they were willing participants in the

interviews. There was no issues.

Was there any anger or any any?

Kitching No. There, there wasn't any anger, no they certainly

participated in the interviews ah without any hesitation.239


171

268. There are a number of relevant considerations established in this passage. Kitching

has extensive experience in interviewing Indigenous persons through policing in remote

communities and interviewing a large number of Indigenous persons. He considered

the persons interviewed in relation to this matter participated of their own free will and

without hesitation. It is not apparent to me that he resorted to cross-examining the

Indigenous persons he was interviewing; he asked open ended questions with a view

to obtain their version of events.

269. Kitching’s responses to the questions in this interview do not definitively address the

criteria outlined OPM s 6.3.2. These responses, however, do allow some inferences to

be made. Kitching, although admitting difficulty understanding Bengaroo, asserts that

the versions he obtained from Indigenous witnesses were believed to be accurate at

the time. It would not be possible to obtain an accurate version from a witness unless

the witness possessed some degree of understanding of questions and the ability to

communicate answers. The degree of the ability of these Indigenous witnesses to

understand and respond to questions is evidenced in interviews Kitching conducted

with the various Indigenous persons. In none of those transcripts does there appear to

be any significant difficulty that arises in relation to the witnesses’ ability to understand

or respond to questions. This observation is buttressed by the video-taped re-

enactment conducted between Roy Bramwell, Williams and Webber on 20 November

2004. In this re-enactment, it is clear that Roy Bramwell, displays no difficulty in

understanding questions nor in communicating his response. Importantly, there does

not appear to be any reason to assert the witnesses’ own interests were, or might be,

compromised.

270. Kitching demonstrated insight into the questioning of persons having a special need

when he decided not to interview an intoxicated witness:

KITCHING: Who sorry?

Clay was it UI?

KITCHING: A young girl, she was a young girl but she was very

intoxicated.

Yeah.

KITCHING: It was just very inappropriate to speak to her at that time. I

took her details and made arrangements to speak to her

when I come back to the island.240

240 Ibid Transcript Tape 3 [301]-[312].

172

271. This decision not to interview an intoxicated person is consistent with a person who has

an understanding of the requirements associated with interviewing people with special

needs.

272. Webber was interviewed by the IRT. He said:

Okay. Do you think at any stage that a support person ah

for any witness was required over there or may have been

required?

Webber: Um no, no I don't in the sense that they were, I believe they

were quite comfortable to, to talk with us. Ah it was more

important at that stage to actually get an explanation from

them a-as to what had occurred. As I said we did, did

actually advise the Legal, Legal Aid Services. They

certainly had the opportunity to, to participate etcetera but

as I said because of the, the prior history of the, of the girl

concerned she didn't want to have any part, any further part

in it and, and once you go down that road the other issue is

that at, at Palm Island the people themselves are very

much um, they're very much ah involved in the community,

they're members of the community, they know everybody in

the community. So whatever transpires is immediately

going to go back in, in, into that, into that community and

hence have the potential to ah contaminate the evidence.

So following on from that, so logistically how would you

have gone about obtaining a support person if one was

required? Would you probably get someone from ah

Townsville or somewhere?

Webber: Ah probably yes. It would have been the only opportunity or

as I say ordinarily we would have used the P-L-O or, or

whatever ah or a, or a legal aid representative etcetera in

those particular circumstances but these were people that

were being ah, being dealt with as, as witnesses. They

were simply people asking, we were simply asking them to

give us a version of what, what they saw, what they knew.

Um there was nothing apparently ah, no apparent

involvement in any criminal offences or anything by them.

There was just a straight forward collection of evidence

process.

173

Ah in terms of support persons, any of the elders or J-P's

could you have, could you have used them if you had to?

WEBBER: Oh if, if we'd had to and certainly if, if any of the people had

expressed any concerns or asked, or asked for someone

ah we would have got someone. Um -

I take it though that would have taken some time to

organise?

Webber: It would have taken, it would have taken time and again ah,

ah slowed down the process.241

273. Webber clearly indicated that he did not believe support persons were necessary. My

comments with respect to Kitching are germane to my assessment of Webber.

274. During my deliberations, I carefully considered the extent of communication difficulties

experienced by Indigenous witnesses and witnesses generally. I note that similar

concerns were raised in other fora. For example, in the inquest before the State

Coroner, Counsel Assisting the Coroner raised this issue with respect to the witness

Vera Snyder. The State Coroner determined the evidence could be given without

assistance.242 No Indigenous witness was provided with a support person in the inquest

before the State Coroner. 243 Ten Indigenous witnesses gave evidence including Ms

Snyder unassisted by an interpreter or support person. By contrast, I note that support

was given to seven of those Indigenous witnesses in the inquest conducted by the

Acting State Coroner. Indigenous witnesses were also provided with support in the

inquest before Mr Hine. The Acting State Coroner suggested in the context of the

police interview with Bengaroo that ‘a support person, independent of both the police

and local community might well have elicited more information [from Bengaroo] at an

early stage.’244 She also suggested that the Commissioner should give consideration to

training in ‘relation to communication with Indigenous people and the use of support

persons and interpreters’.245

241 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 2 [659]-[712]. 242 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Palm Island), State Coroner Barnes, 28 February 2005). 243 Tracey Twaddle (56); Victoria Doomadgee (64); Reginald Barry (65); Patrick Bramwell (68); Edna Coolburra (84); Gladys Nugent (92); Gerald Kidner (102); Verna Snyder (109); Nobie Clay (117) and Roy Bramwell (126). 244 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 245 Ibid 32.

174

275. It seems the same Indigenous witnesses that appeared before the Acting State

Coroner gave evidence without the assistance of a support person at the trial of

Hurley.246 As was true of the first inquest, no Indigenous witness was provided with a

support person in the Supreme Court trial. Similar discretionary considerations applied

to that decision.247 I can only conclude these persons were assessed as not falling

within the category of a special needs person requiring a support person, including an

interpreter, to be present.

276. The fact that in various judicial fora no support person was provided, does not

necessarily absolve the alleged failings by the investigators in not properly applying

Service policy and procedures. However, it ably demonstrates that the matter is not

simply resolved by recourse to the applicable criteria. The decision was a discretionary

one. Whilst I accept that the discretion may have been exercised differently, I do not

accept that the decision was unreasonable.

277. I have considered whether there is sufficient evidence to satisfy the requisite standard

of proof to commence disciplinary proceedings for misconduct. I am satisfied Webber

and Kitching were, during the initial phase of the investigation, gathering versions from

witnesses in a non-adversarial manner. Whether or not they specifically directed their

minds to Service policy and procedures at the time of the initial interviews is not clear.

However, I do not find any evidence to establish that they breached any relevant policy.

Accordingly, I do not propose to commence any disciplinary action or give managerial

guidance.

Allegation 14: Failures in the Questioning of Senior Sergeant Hurley

278. The CMC Review independently raised a number of complaints against the

investigators and the IRT in ch 10. The second of those complaints was listed under

the heading ‘Failures in the questioning of Senior Sergeant Hurley’. The CMC Review

identified three separate matters the investigators failed to address when questioning

Hurley. They were:248

• The failure to ask Hurley whether he hit Mulrunji;

• The failure to ask Hurley why he released Roy Bramwell on 19 November

2004 without questioning him;

246 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007; Florence Sibley (53), Edna Marie Coolburra (65), Gerald Brian Kidner (78), Verna Maree Snyder (90) and Gladys May Nugent (157) 247 Cf Supreme Court of Queensland, Equal Treatment Benchbook (Supreme Court of Queensland Library, 2005), ch 9. 248 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 142-6.

175

• The failure to ask Hurley about his version of events changing after his

initial interview on 19 November 2004.

279. The investigation initially proceeded on the basis of obtaining versions from as many

witnesses as possible.249 The investigators intended, as information came to hand, to

review this information, narrow the issues and determine the direction of the

investigation. 250 Armed with this information, the investigators would be properly

positioned to address any ambiguities, deficiencies or inconsistencies that were

revealed. Consequently, the initial questioning technique adopted by the investigators

in obtaining these versions was to ask questions of interviewees that were generally

open ended and broad. This process appears logical and unremarkable.

280. The style of questioning adopted by the investigators was calculated to achieve that

purpose. The questions allowed the witnesses to give largely unaided accounts. The

limited information known to the investigators prevented them from pursuing specific

lines of inquiry in the initial interviews. The investigators interviewed a credible number

of witnesses in a relatively short period of time. A degree of forensic judgment was

necessary to determine which witnesses would require further interviews, when those

interviews should take place, what specific lines of inquiry would be pursued and how

those lines of inquires would be addressed with the individual witnesses. Addressing

each new matter with individual witnesses immediately it came to hand was likely to be

impractical, tedious and ultimately, counter-productive. It is usually preferable for the

investigators to obtain information from all sources and to consider and reflect on all the

information before asking such direct questions. This allows an investigator to be fully

aware of all the circumstances which in turn is likely to ensure the interview is

comprehensive and position the interviewer to canvass perceived inconsistencies or

untruthfulness. Interviews are undoubtedly dynamic. A fully appraised interviewer is

better positioned to control the dynamics of an interview.

281. The most critical piece of information was the cause of death. The investigators

conducting the initial interviews did not know this information. They had no real

indication as to the cause of death, much less a definitive cause. Without that

information, their investigation was necessarily limited and could only become more

focused once that information was known. Of course, the investigation was handed

over to the CMC after the post mortem was conducted and the cause of death was

revealed. It is impossible to determine how that information might have impacted upon

the investigation conducted by the initial investigators had the CMC not assumed

249 See, eg, Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007) Transcript Tape 2 [168]ff. 250 See, eg, ibid Transcript Tape 2 [807]ff.

176

control. It is in this context that the supposed failings of the investigators should be

considered.

The failure to ask Hurley whether he hit Mulrunji.

282. The CMC Review complained that it did not appear that any officer actually asked

Hurley whether he assaulted Mulrunji. The CMC Review specifically comment:

In the CMC’s view, given the purpose of their investigation, and as

experienced investigators, Webber, Williams or Kitching should have asked

Hurley whether he assaulted Mulrunji. The investigators were aware that

Mulrunji had a head injury, that Mulrunji had assaulted Hurley, that there had

been a struggle and a fall, and that Hurley said the head injury was not

present when he first saw Mulrunji but was present after the struggle. By the

time of the second interview with Hurley, the re-enactment, the investigators

were aware of Bramwell’s assault allegation.

If faced with a similar situation involving a civilian witness, it seems likely that

the investigating officers would have asked the civilian if they assaulted the

deceased person.251

283. Hurley stated during his initial interview on 19 November 2004:

Hurley Lloyd – Lloyd had a look over there and advised me there

was a fight there – we pulled him to the garage of the umm

– of the police station and ahh – exited the driver seat –

came around to the back and I just (U/I) Leafe was

standing there – he hadn’t come out from the police station

he had come around from presumably being at an incident.

Umm- I noted that ahh – there was a lady there that I now

know as Penny SIBLEY. She was with Sergeant LEAFE.

She was standing there umm – ahh – just in the same area

as where Sergeant LEAFE was and there was also the

offender from this morning who was ahh – the assault that

I’d originally gone to the hospital – Roy BRAMWELL. Now

from there what happened was I opened the rear door of

the police vehicle to get the two people in custody out. As I

did this, struck me with a closed

fist – that was on the back side of his fist – he came across


177

my face. I then took hold of him by grabbing him on the

shirt – up close to where that they ahh the V of the shirt – a

struggle ensued. What I was trying to do at the time was

get a hold of – get a hold of one of his arms – but it was

confined area – between the – police vehicle and the side

wall of that police station – from there we ahh – the

struggle moved into the station where we were on the

ground – because the step up

Kitching So you tripped over a step is that right

Hurley Over the step as we came in – there’s a step there

Kitching How did you manage to fall on the ground

Hurley I fell to the left of him and he was to the right of me

Kitching What caused you to fall

Hurley Just coming into the station I was trying to grab him and he

was trying to get away

Kitching Oh OK

Hurley From there – ahh – Sergeant LEAFE had closed the back

door of the ahh – wagon

Kitching Where was umm – Patrick BRAMWELL at that stage

Hurley I’m not sure – I’m not sure whether Sergeant LEAFE had

brought him into the station or whether he was still outside

Kitching OK

Hurley Anyway umm- Sergeant LEAFE then seeing the struggle

went and opened up the watchhouse – the door to the

watchhouse so he didn’t have to struggle (U/I) and then

when there were two of us there – we took him by both

arms and we took him into the watchhouse – he’d stopped

um, he’d stopped fighting us. Put him into the watchhouse

ahh – there was two mattresses there – he didn’t lie on any

of the mattresses – he lay on the floor. After that I went out

to get umm – Patrick BRAMWELL out of the car. I got him

out of the car without too much incident – although he

178

couldn’t walk – he had to be assisted to walk – he was that

drunk. Then again with the step at the back – at the back of

the watchhouse – at the back of the station – Patrick

BRAMWELL was that drunk – there was that factor of

taking by their arms and we ended up dragging Patrick

BRAMWELL umm – through the station and into the

watchhouse. We put him in the cell beside

He lay to the right of as you

face the cell . . .

Kitching Now when you first um, first saw umm – did

he have any injuries or anything like that on him (U/I)

Hurley I didn’t see any injuries on him

Kitching Did he make any complaints of any injuries

Hurley No

Kitching Okay, when you ahh – eventually placed him in the

watchhouse after you had a struggle with him um what

injuries did you observe on him then

Hurley I observed that he had a small amount of blood that was

ahh – coming from a very small ahh injury above his right

eye

Kitching How did he receive that injury

Hurley I don’t know.252

284. The questions asked by Kitching in this interview are consistent with the broad-brush

approach that he claims to have adopted. He specifically asks Hurley to comment upon

the only visible injury observed on the deceased. It would have been remarkable in this

context if, at this juncture, Kitching had asked Hurley if he assaulted Mulrunji,

particularly as Hurley had just provided a version that was inconsistent with any assault

and indicated that he had no knowledge about the source of Mulrunji’s injury. It was not

until the following day that Kitching became aware of the assault allegations by Roy

Bramwell.

252 Senior Sergeant Raymond Raymond Kitching, Interview with Senior Sergeant Christopher Hurley, (Palm Island Police Station, 19 November 2004), Transcript [159]-[209]; [278]-[295] (emphasis added).

179

285. The re-enactment was conducted after the investigators had become aware of

Bramwell’s allegations. Indeed, Williams suggests that Bramwell’s allegations were the

very issue that had triggered the re-enactment. 253 It follows that the allegations of

assault should have been addressed in the re-enactments. My view is that they were.

Bengaroo was directly asked whether Hurley had assaulted Mulrunji.254 No such direct

question was asked of Hurley. However, there can be no doubt that the interview did

address any alleged assault. No reasonable commentator could be left in any doubt

after hearing Hurley’s re-enactment. His version was clearly set out and did not lend

itself to the possibility that there had been an assault. If an assault did in fact take

place, Hurley was lying. I do not place any importance on the fact that the question was

not asked directly. Any complaint in relation to the re-enactment is a complaint about

the form of the questions, not the substance. I do not perceive any censurable problem

with the form of the questions.

286. The purpose of the final interview with Hurley conducted on 20 November 2004 was

quite specific. I accept that it was not the intention of the investigating officers to canvas

aspects of the assault, which to my mind, they had already addressed. I do not intend

to discipline any officer for not asking of Hurley the question ‘Did you assault Mulrunji’.

Whether the direct question would have been asked if the investigators had retained

the investigation is irrelevant. Any answer to the question when asked directly was

entirely predictable and only served to confirm a version that needed no

confirmation.255 Having said that, I have no evidence before me to indicate that this

question would not have been asked if the investigators had been allowed to review the

material and to progress the investigation. Consequently, on that basis alone,

disciplinary proceedings cannot be justified, nor do I propose to provide managerial

guidance.

The failure to ask Hurley why he released Roy Bramwell on 19 November 2004 without

questioning him


There is no evidence to suggest the investigation team asked Hurley why he

released Bramwell on 19 November 2004.

Based on the interviews conducted on 19 and 20 November 2004, the

investigators were aware that Bramwell:

253 Cf Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript of Tape 2 [502]ff. 254 Inspector Warren Webber, Re-enactment Interview with Lloyd Bengaroo, (Palm Island Police Station, 20 November 2004) [274]-[275]. 255 Cf Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 259.

180

• had been brought to the station so Hurley could discuss serious assault

allegations which had been made against Bramwell.

• was present outside the police station when Hurley and the PLO arrived

in the police vehicle with Mulrunji

• said he witnessed:

- Mulrunji assault Hurley

- Hurley and Mulrunji fall in the police station

- Mulrunji being taken towards the cells

- Hurley assault Mulrunji.

Despite knowing all this information, none of the investigators thought to ask

Hurley why he released Bramwell without questioning him.256

288. For accuracy, I will not refer to Hurley ‘releasing’ Roy Bramwell. That term carries with

it the connotation that prior to Roy Bramwell being ‘released’ he was detained. I have

no evidence before me to indicate that this was the case.257 In any event, the reason

provided by Hurley for Roy Bramwell leaving the Palm Island Police Station on 19

November 2004 without being questioned was because he was too intoxicated to be

interviewed. In the inquest before the Acting State Coroner, Hurley stated:

Martin: Thank you. Now, you told us earlier that Roy Bramwell was

sitting in the suspect's chair. You intended to interview him

and did you interview him that day?—

Hurley: No, I didn’t - I did not formally interview him. I only spoke to

him.

Martin: Well, can I ask you why you didn’t interview him, since you

had told us earlier that you intended to interview him?—

Hurley: Due to his state of intoxication.

Martin: I see. What conversation did you have with Roy?—

256 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 144-5. 257 The CMC used the term ‘allowed … to leave’ earlier in its Review; see ibid 143. The terms ‘allowed to leave’ and ‘released’ are not synonymous.

181

Hurley: Basically, preliminary conversation about the investigation,

about had he been involved in it.

Martin: Yes. And what did he say?—

Hurley: I can't recall his exact words but he made an admission

that he was involved in that - in the incident with the three

ladies.

Martin: And when you say, "due to his state of intoxication", you

didn’t proceed further. Do you say he was heavily

intoxicated?—

Hurley: Well, he appeared to me - but, he - he - he - he could talk

but I could tell he was well and truly affected by liquor.

Martin: Okay. Did you make arrangements for him to return to the

police station another time or another date to be-----?—

Hurley: I didn’t make a set date, sir. I - my advice to Roy was to go

home and sleep off the intoxication and that police would

be in contact with him.

Martin: Okay. And was that subsequently done or did other

circumstances intervene?—

Hurley: I - I know now - after - after some time - well, I know now,

yes it was done but not on that day obviously.

Martin: And not by you?—

Hurley: And not by me.258

289. Neither Webber, Williams or Kitching specifically asked Hurley why Roy Bramwell left

the Palm Island Police Station without being questioned during any of the recorded

interviews. Nevertheless, it appears the investigators were aware that Bramwell had

been intoxicated when he was present at the station on the morning of 19 November

2004. During the interview with Bramwell on the following day, the following exchange

took place:


182

Bramwell: And then the other officer was off duty, he come and typed

it out and then the other (ui) Chris, went out, he (ui) Mr (ui)

Kitching: OK and yesterday morning you’d been drinking

Bramwell: Yeah, no, no, I wasn’t drinking, oh I was drinking yeah

Kitching: Yeah how much had you been drinking

Bramwell: Morning

Kitching: In the morning

Bramwell: Oh just a six pack you know

Kitching: Just a six pack

Bramwell: Yeah

Kitching: OK and what about the night before you’d been drinking

during the night

Bramwell: Yep

Kitching: OK how long during the night

Bramwell: Along

Kitching: Along

Bramwell: Yeah

Kitching: All night

Bramwell: I just only started that night yeah

Kitching: Yeah and

Bramwell: (ui)

Kitching: Yeah and you drank all night and into the morning before

you come to the police station here

Bramwell: Yes I only had a six pack ah yesterday morning

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Kitching: You only had a six pack yesterday morning.259

290. I infer from Kitching’s statement to Bramwell that he had ‘been drinking’ that Kitching

understood Bramwell was intoxicated. Kitching was not asked how he knew Bramwell

had been intoxicated. Potentially, a number of sources could have provided him with

that information. For example, that information may have come from Hurley, Leafe or

from Bramwell himself. Presumably, Webber and Williams had become aware of the

same information, whatever that might have been. In any event, Bramwell could not be

interviewed if he was intoxicated.260 I do not consider it extraordinary that Bramwell was

allowed to leave the Palm Island Police Station if he was too intoxicated to be

interviewed. The exigencies of a particular investigation into serious assaults may

make an arrest without interview inevitable. 261 However, in the absence of some

contrary reason, I would expect officers would ordinarily delay any arrest to allow the

suspect the opportunity to participate in an interview.

291. This does not necessarily address the failure to ask Hurley for his reasons. The CMC

Review appears to take the view that the question was one of some significance. Why

this would be so is never expressly indicated. However, the CMC Review’s introductory

comments on this topic are illuminating:

During the initial QPS investigation, it does not appear that anyone asked

Hurley why he allowed Bramwell to leave the station without being

questioned when Bramwell, a man wanted for questioning in relation to

serious, violent assaults, was the only civilian eyewitness to the fall and to

Mulrunji being taken towards the cells. 262

292. The connection drawn in this passage between Bramwell leaving the station and his

presumed value as a witness seems to be an attempt to suggest Bramwell was

permitted to leave because of his presumed value as a witness. There is no evidence

of this at all. Bramwell demonstrated that he was willing to make allegations detrimental

to Hurley. However, he never suggested that Hurley importuned upon him in any way

when he allowed him to leave.263 There is no evidence that Hurley allowed Bramwell to

leave for any reason other than the fact that Bramwell was intoxicated. That Bramwell

was intoxicated is beyond any real doubt. He admitted he had started drinking beer on

the previous morning, had drunk perhaps 40 cans or more through the night without

259 Senior Sergeant Raymond Kitching, Interview with Roy Bramwell, (Palm Island Police Station, 20 November 2004), Transcript [98]-[142]. 260 Police Powers and Responsibilities Act 2000 s 254. 261 Cf ibid s 198(1). 262 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 143 (emphasis added). 263 See, eg, Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 410.

184

sleep and had already consumed a ‘six-pack’ on the morning of 19 November 2004.264

In the absence of any reason to connect Bramwell leaving the station and his

presumed value as a witness, there does not seem to be any particular reason to think

the question was of great significance. It certainly was not central to the issues under

investigation. I see this question to be sufficiently divorced from the central issue of the

death of Mulrunji as to escape attention.

293. Of course, a direct question to Hurley may have resolved the matter earlier than the

inquest before the Acting State Coroner. Although it should be the aim of every

interviewer to conduct an interview as comprehensively as possible, it is an unfortunate

reality that not every relevant question is either identified or asked. Whether the

question would have been identified or asked once the investigation was reviewed will

remain a mystery. I do not intend to discipline or provide managerial guidance to any

officer for not asking this question.

The failure to ask Hurley about his version of events changing after his initial interview on 19

November 2004


No officer asked Hurley why his version of events changed so significantly on

20 November 2004, after Bramwell made the allegation of assault.

It does not appear that any member of the investigation team was concerned

about the fact that shortly after Bramwell made the allegation of Hurley

assaulting Mulrunji, Hurley’s version of events changed significantly to

include evidence addressing Bramwell’s allegation. The fact that Hurley didn’t

mention this information in his initial interview did not seem to have had any

impact on the investigation team’s view of Hurley’s credibility, unlike their

view of Roy Bramwell who seems to have been deemed completely

unreliable by the investigation team because of inconsistencies in his

evidence. This creates a perception of bias on the part of the investigation

team.265

295. I have previously reproduced the relevant parts of the transcript of Hurley’s interview on

19 November 2004. However to allow for a direct comparison of that information with

the information that he provided in his re-enactment on 20 November 2004, it is

prudent to reproduce it once more. Hurley when initially interviewed on 19 November

2004 stated:

264 Ibid 412-13, 417. 265 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 145.

185

Hurley Lloyd – Lloyd had a look over there and advised me there

was a fight there – we pulled him to the garage of the umm

– of the police station and ahh – exited the driver seat –

came around to the back and I just (U/I) Leafe was

standing there – he hadn’t come out from the police station

he had come around from presumably being at an incident.

Umm- I noted that ahh – there was a lady there that I now

know as Penny SIBLEY. She was with Sergeant LEAFE.

She was standing there umm – ahh – just in the same area

as where Sergeant LEAFE was and there was also the

offender from this morning who was ahh – the assault that

I’d originally gone to the hospital – Roy BRAMWELL. Now

from there what happened was I opened the rear door of

the police vehicle to get the two people in custody out. As I

did this, struck me with a closed

fist – that was on the back side of his fist – he came across

my face. I then took hold of him by grabbing him on the

shirt – up close to where that they ahh the V of the shirt – a

struggle ensued. What I was trying to do at the time was

get a hold of – get a hold of one of his arms – but it was

confined area – between the – police vehicle and the side

wall of that police station – from there we ahh – the

struggle moved into the station where we were on the

ground – because the step up

Kitching So you tripped over a step is that right

Hurley Over the step as we came in – there’s a step there

Kitching How did you manage to fall on the ground

Hurley I fell to the left of him and he was to the right of me

Kitching What caused you to fall

Hurley Just coming into the station I was trying to grab him and he

was trying to get away

Kitching Oh OK

Hurley From there – ahh – Sergeant LEAFE had closed the back

door of the ahh – wagon

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Kitching Where was umm – Patrick BRAMWELL at that stage

Hurley I’m not sure – I’m not sure whether Sergeant LEAFE had

brought him into the station or whether he was still outside

Kitching OK

Hurley Anyway umm- Sergeant LEAFE then seeing the struggle

went and opened up the watchhouse – the door to the

watchhouse so he didn’t have to struggle (U/I) and then

when there were two of us there – we took him by both

arms and we took him into the watchhouse – he’d stopped

um, he’d stopped fighting us. Put him into the watchhouse

ahh – there was two mattresses there – he didn’t lie on any

of the mattresses – he lay on the floor. After that I went out

to get umm – Patrick BRAMWELL out of the car. I got him

out of the car without too much incident – although he

couldn’t walk – he had to be assisted to walk – he was that

drunk. Then again with the step at the back – at the back of

the watchhouse – at the back of the station – Patrick

BRAMWELL was that drunk – there was that factor of

taking by their arms and we ended up dragging Patrick

BRAMWELL umm – through the station and into the

watchhouse. We put him in the cell beside

He lay to the right of as you

face the cell.266

296. On 20 November 2004, Hurley participated in a re-enactment which was conducted by

Williams and Webber. In this interview it was stated:

Williams: Time is ah 7 minutes to 12 on Saturday 20 November

2004. This is a re-enactment with Senior Sergeant ah

HURLEY of the Palm Island Police. Inspector um WEBBER

Regional Crime Co-ordinator and Mark WILLIAMS Internal

Investigations. Chris what we’d like you to do please is ah

we’re gonna video tape the re-enactment of how you um

dealt with the deceased once we came back here to the the

ah station. What I’d like you to do is um basically in slow

motion we’ll just go through each and every point as we run

266 Senior Sergeant Raymond Raymond Kitching, Interview with Senior Sergeant Christopher Hurley, (Palm Island Police Station, 19 November 2004), Transcript [159]-[209].

187

along and if you can just explain as we go along um his

demeanour your actions what was happening and who you

saw around you ah at the time is that Okay

Hurley: Yep, that’s fine

Williams: Beautiful

Hurley: Um, initially, we arrived that door, that door was shut. I got

here and Sergeant LEAFE was standing here as was the

male person that male person was Roy BRAMWELL um

there was also a lady there who is Penny SIBLEY I now

know that. I didn’t know SIBLEY at the time. Lloyd told me

that’s who it is. Um before opening the cage Sgt LEAFE

told me that that was Roy BRAMWELL and I, I, was ah

conducting initial investigation into ah three bodily harms

from in the morning that Roy BRAMWELL was the suspect

and ah LEAFE asked me what I want done with him and ah

I said put him in the on the yellow chair. The yellow chair is

normally the chair we use for suspects basically. Um, I

can’t remember whether he went in then or what

happened. I turned and I opened up this um cage the

second person that was ah arrested was um Patrick

NUGENT and NUGENT was more at the back there ah

was at the, at the front. So he

came out first when I opened the when I opened the door I

opened it to here or somewhere around there and I told

them to come out and what happened then

stepped out or started to step out and I got assaulted. I was

like that ready to get in there and the punch wasn’t like that

(sound of punch) it was like that (sound of punch) it was

like type of backwards

Webber: Backhand

Hurley: It was a type of backhand closed fist punch

Williams: Okay

Hurley: Um, that ah that struck me like that anyway I

Williams: So it struck your right jaw

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Hurley: It struck my right jaw chin area

Williams: Yep

Hurley: I didn’t hit me up here he hit me down there anyway um I

have then grabbed hold of him by the shirt and there’s

been a tussle go on between us and that tussle continued

to inside the building

Williams: Now can you just, just slow down buddy and just explain to

me how the tussle what, what sort of tussle did that involve,

getting him down to the ground

Hurley: Well when…

Webber: Mate, if I play the part…

Webber: Yep

Hurley: When, when he was coming out um I don’t know how far

out he was I can’t recall that but straight away the tussle

went on and I went straight for his shirt, to pull him towards

me to stop that happening basically. The weight of him

coming towards me, I was on the back and then I tried to

heave him towards this way and we’re in between us here.

and basically because of the state of his intoxication he

was also like lower than, just go a bit lower boss, he was a

lot lower than that and we were, we were tussling to try and

get him there

Webber: Did he have hold of you

Hurley: and he had a hold of me and I don’t know particularly

where, but I had a hold of his shirt and I kept onto his shirt

like that the whole way in I remember bouncing off the

wall a couple of times. I remember I bounced into the

amplimesh a couple of times from the tussling that was

going on.

Williams: Yep

Hurley: And ah the tussling was you know whilst I can’t remember

exactly, the tussling was something similar to come on,

come come like this. Now what had happened was Lloyd

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BENGAROO the Police Liaison Officer, had opened this

door for me Um he had pinned it back like that. Now when

I was tussling with um he was low I’ve

stepped like this and he’s gone like that like that and we’re

both gone like like that. And that was the thing, his head

was there and I recall that I was making sure it didn’t hit

there or there but his legs were more out, if I can remember

no his legs were more out the door at that time. He was

kind of like that and then I’ve, then I’ve stood up and I can’t

remember whether he was on his stomach when he fell or

on his back. But I can remember to try to get him up, I had

his shirt and I was going like that. Now he ended up that he

was

Webber: You trying to lift him

Hurley: He was down like that he was down and his feet were he

was more in and I don’t know how he got from that point to

that point but I had tried to lift him when when he went near

there I tired to lift him a couple of , sorry I tried to left him a

couple of occasions.

Williams: Just take your time mate

Hurley: I tried to lift him a couple of occasions. Like this I’m going

get up Mr get up, I said don’t start it again you

know. Anyway he was down there and ah, he refused to

get up. Now I can’t I can’t remember, I just asked Michael

before.. um when did he come through. That’s…I can’t

even remember Michael LEAFE coming through but

Michael has come through here, past us, opened that

wooden door and then opened the door of the watchhouse

and come back and we both grabbed a by this stage um

was like that on his back I’ve stepped over

him like that, LEAFE was on the other hand and by his

wrists and like that we have dragged him then from there

and we have dragged this door was open and the

watchhouse door was open. We have dragged him from

there into the cell, into the cell and he just layed there then

Webber: When you say dragged, what with your arms under each

armpit or

190

Hurley: No, dragged like he was laying on the ground and he just

he was dragged backwards

Webber: With his legs dragging

Hurley: With his legs dragging

Williams: When you had Mr on the ground you said

you were trying to pick him up, what, what happened as

you were trying to pick him up did you pick him by the shirt.

Hurley: I picked him up like to a certain but his shirt kept ripping I

picked him a couple of times.

Williams: Can, can we just do that again. Can you just show us the

movement you made as you tried to pick him up by the

shirt without ripping your shirt.

Hurley: Yeah well at the time I had him like this I was trying to pick

him up like that.

Williams: Yes

Hurley: Well you can hear that it just kept on ripping.

Williams: What happens to your hand when it ripped.

Hurley: When it ripped it it went like that.

Williams: Yep

Hurley: And just ripped. I had force on it but then it went like that

because it ripped basically and then well you know well I

just didn’t want to keep ripping his shirt off obviously. Um, a

very short time later, Mick was back to help me and we

dragged him into the cell

Williams: When you try to lift people is the what's your standard way

of lifting someone off the ground that’s more or less a dead

drunken weight as Mr, Mr was at this time.

Hurley: If, if he had the clothing on that the Inspectors got on now I

would have just gripped him by the belt and pulled him up

and one by the shirt. But ah he didn’t he had the um type of

um board shorts or what ever things on so I was trying to

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grab him up by the things and get him onto the feet and

then to walk him into the cell.

Williams: We might just go through and show us how you put into the

cell please.

Hurley: We won’t um actually put him in the cell because we

haven’t cleaned it out

Williams: No that’s fine

Webber: Cell door open or shut

Hurley: That was open

Webber: It was open

Hurley: Yeah the cell door was open like that like how the cells are

open there, cell was open and basically from here I had I

had the left arm and Michael had the right, Sergeant

LEAFE had the right and we just dragged him into here and

put him straight into the cell and um

Webber: Backwards

Hurley: Backwards like that and put him straight in the cell and we

put him on the left hand side of the cell where um he is on

the video

Webber: Alright I notice here a couple of steps right did was at any

stage did anyone fall on the ground, or anything here

Hurley: No No the only thing that um would have been

uncomfortable for him was that his feet were dragging it

would have gone like that but there was nothing else

Webber: Head

Hurley: No

Webber: Never struck the ground

Hurley: No the head never struck the ground no

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Williams: Actually we won’t talk in there because it seems to vibrate

around a bit. Um could you just come back out here. Um,

did Mr head strike the ground anywhere

in this area.

Hurley: His head was on the ground it didn’t strike either of here

but um later on that’s when we found him deceased I

noticed he had a, had a spot of blood there, um so there’s

obviously is a possibility that we’ve come in, his head has

hit the ground or

Williams: You more or less said you tripped as you come through the

door

Hurley: Because of the fact that um, well most likely because of the

fact two of us trying to get through the door and ah, I ended

up on my knees beside him and he was here

Williams: Okay you described Mr as being down low

can you just indicate height wise here for us how, how low

he was before he actually came down onto the ground.

Hurley: Um, well probably about the height of if you have a look at

that, from that type of distance because yeah, he was, and

he was low because of his state of intoxication and

because of the fact that um well probably, probably just the

fact that he was resisting and just didn’t want to come in.

Williams: Okay, but when you were on the ground who could you see

around at that point.

Hurley: Ah nobody to tell you the truth, Oh I didn’t only from

hindsight and from speaking to the people found out that

Lloyd was the one that opened the door and um, um,

BRAMWELL was over there. But I was aware I told Michael

to bring BRAMWELL in, but I couldn’t see BRAMWELL. I

didn’t know whether he was there there or not. But ah, I

knew Michael was there and I knew Mrs SIBLEY, Penny

SIBLEY was out there and Lloyd was around this area

somewhere. Like everybody was around. Um but I didn’t

like try and mentally picture it I did see them you know. I

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was more concerned about what you know having the

tussle with 267

297. Hurley’s re-enactment on 20 November 2004 is clearly more comprehensive than his

initial version on 19 November 2004. This is hardly surprising as a re-enactment helps

a witness to sequentially order their version. Rather than mentally attempting to recall

their actions and verbally describing what occurred, a re-enactment allows a witness to

physically repeat their previous actions and thereby provide a version which is

frequently clearer, arranged chronologically and more detailed.

298. I am not persuaded that Hurley’s elaboration in the re-enactment necessarily

constituted a change in his version. Obviously, Hurley elaborated or expanded on his

previous version and to that extent there has been a ‘change’. However, I can see no

inconsistency between the version he provided on 19 November 2004 and the re-

enactment on 20 November 2004 to lead me to believe that he has attempted to

‘change’ his initial version. I note that the Deputy Chief Magistrate described it as a

‘subtle modification’. 268 The suggested change to accommodate the allegations of

Bramwell was not volunteered by Hurley. It resulted from specific and legitimate

questioning by Webber and Williams who were aware of Bramwell’s allegations. Hurley

does not appear to me to be disingenuous in his account. However, my conclusions are

not dependent on the veracity of Hurley’s claim.

299. The CMC Review’s complaint is that Hurley was not questioned about the ‘change’.

Importantly, different interviewers were involved in the original interview and the

subsequent re-enactment. Webber and Williams were briefed on the content of the

original interview. However, the evidence does not indicate whether they considered

Hurley’s account during the re-enactment to be inconsistent with his earlier version, if

indeed it was. Moreover, they were addressing Bramwell’s allegations, not potential

inconsistencies with earlier versions. The review of the interviews customarily

undertaken in more complex investigations and intended in this case would have

alerted the investigators to any perceived inconsistencies. This review was thwarted

when the CMC took over the investigation on 24 November 2004.

300. I am satisfied that the issue complained of should only have been addressed after the

investigating officers had the opportunity to evaluate the evidence given by Bramwell

and Hurley. At that time, they could determine how they would address this issue. In

this instance, this would have been critical as different officers had interviewed

267 Inspector Warren Webber, Re-enactment Interview with Senior Sergeant Christopher Hurley, (Palm Island Police Station, 20 November 2004), Transcript [1]-[208]. 268 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville and Brisbane), Deputy Chief Magistrate Hine, 14 May 2010), [224].

194

Bramwell and Hurley at different times. Consequently, I do not propose to instigate any

disciplinary or managerial action in relation to this matter.

Allegation 15: Issues Relating to Roy Bramwell

301. The CMC Review criticised the investigators for failing to interview Roy Bramwell

earlier. The CMC Review does not indicate that the failure to interview Bramwell had an

impact on the integrity of the investigation or, indeed, that it had the capacity to do so.

The complaint appears to be that the failure ‘creat[ed] a perception of lack of

thoroughness and impartiality’.269 The CMC Review acknowledged that this matter had

not been raised by the Acting State Coroner.270 The CMC Review commented:

It is not clear why the investigation team did not treat interviewing Bramwell

on 19 November 2004 as a priority. As he was the only non-police witness to

the fall and to Mulrunji being taken towards the cells, we consider the

investigation team should have ensured that they interviewed him as soon as

possible.

There is no evidence to suggest that any attempt was made by the

investigators to interview Bramwell on 19 November 2004 or to support

Webber’s assertion that Bramwell could not be located that day. Robinson

said he was not aware of any attempt to locate Bramwell on 19 November

2004 and said the decision to interview him on 20 November 2004 was made

by either Webber or Kitching. As the person involved in the investigation for

his ‘local knowledge’ and ability to find people on Palm Island, Robinson

should have been aware of any attempt to locate Bramwell.271

302. The IRT did not directly question Webber, Kitching or Robinson about their failure to

immediately find and interview Roy Bramwell.

303. Webber suggested in his interview with the IRT that the investigators were unable to

locate Bramwell on 19 November 2004.272 The IRT did not ask Webber what attempts

were made to locate Bramwell. In contrast to Webber’s statement, Robinson apparently

indicated he was unaware of any attempts to locate Bramwell on 19 November 2004.

He also apparently suggested the decision was made by Webber or Kitching to

269 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 148. 270 Ibid 174. 271 Ibid 147-8. 272 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [617]ff.

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interview Bramwell on 20 November 2004.273 Unfortunately, despite my requests and

the references in the CMC Review,274 the CMC has declined to provide me with a copy

of this interview and so I am unable to ascertain the context of Robinson’s

comments.275 I accept that the CMC Review references are reflective of the actual

responses. Nevertheless, it is not clear whether Robinson was indicating a decision

had been communicated to him or simply that it was not his decision to make. I am not

overly surprised that there is a lack of clarity in this regard, as Robinson was asked to

recall aspects of an investigation that had taken place over three years before.

304. The relevant Service policy was set out in OPM s 16.24.3 under the heading ‘Additional

responsibilities of officers investigating deaths in custody’. OPM s 16.24.3 relevantly

provided:

PROCEDURE

Where responsibility for the investigation of a death in custody or in police

company reverts to a commissioned officer pursuant to s. 1.17: 'Fatalities or

serious injuries resulting from incidents involving members (Police related

incidents)' of this Manual, that commissioned officer should, as part of the

investigation:

…

(iii) obtain statements from all witnesses, including police officers,

as soon as practicable after the incident and prior to any debriefing

session where practicable;

305. The CMC Review suggested that Bramwell should have been interviewed as a priority.

They suggested that ‘Roy Bramwell was a person who potentially had significant

knowledge of the circumstances of the death’276 and, in particular, ‘was the only non-

police witness to the fall and to Mulrunji being taken toward the cells’. 277 However,

these conclusions are the product of hindsight. The fact was all those persons who

were present at the Palm Island Police Station were of significance. There was no way

of knowing Bramwell had witnessed the fall and Mulrunji being taken towards the cells.

273 See, eg, Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 147-8; Memorandum of Inspector K J Webster to Director, Misconduct Investigation, Crime and Misconduct Commission, 14 March 2008, 87. 274 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 147 275 See, eg, Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010. 276 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 146. 277 Ibid 147.

196

The significance of the fall would only become apparent once the autopsy results

become available several days later. There is no evidence to suggest that any

particular civilian witness might have been more significant than the others or that the

events upon entering the station would be more significant than those outside. In all the

circumstances there was no reason to think the fall inside the station was any more

significant than the struggle outside the station. Moreover, until all witnesses were

interviewed, there was no way of knowing whether any particular events had been

witnessed or not. There was no reason to think Bramwell was considered a more

significant witness than any of the other civilians and should have been considered a

priority.

306. Insofar as priority is concerned, I would think the police officers involved in the incident

should have taken priority over other witnesses. They were the people most directly

involved and with the fullest appreciation of all the facts. OPM s 16.24.3 outlines police

officers and other witnesses should be interviewed ‘as soon as practicable’. Availability

and time limitations will obviously dictate what is practicable in any particular case. The

CMC Review uses the expression ‘as soon as possible’278 on occasion but that term is

not synonymous with the term ‘as soon as practicable’. Webber indicated that the aim

of the investigation team was to conduct interviews as promptly as they could.279 That

approach is consistent with the policy. A number of interviews were conducted on 19

November 2004. The focus on that day appears to be the police officers who were,

presumably, readily accessible280 and were a priority. Hurley, Bengaroo and Leafe were

interviewed. I note interviews were also conducted with three civilian witnesses that

same day; Gladys Nugent, Patrick Bramwell and Edna Coolburra. The investigators

undertook a credible amount of work on that day and commenced further interviews

first thing the following morning.

307. The investigators expressed some regret over the failure to interview Bramwell earlier.

They perceived Bramwell may not have made the allegations of assault if interviewed

earlier281 and that he had a faulty memory.282 The CMC Review uses the latter basis for

suggesting Bramwell should have been a priority.283 Of course, such an assessment

could only be made of Bramwell after he was interviewed. In any event, there is no

evidence that the investigators deliberately avoided interviewing Bramwell for some

278 Ibid. 279 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 2 [336]ff. 280 Ibid. 281 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [120]. The index references Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), 21 – see Transcript Tape 1 [617]ff. 282 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 1 [706]-[711]. 283 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 148.

197

improper purpose. There is no evidence that Bramwell was not considered a priority. It

is apparent that Bramwell only took on particular significance as a witness once he was

interviewed.

308. The CMC Review’s criticism appears to be founded on Webber’s comments that

Bramwell could not be located. It is not entirely clear whether Webber was suggesting

that a search was made or simply that Bramwell was not present or easily accessible.

The CMC Review appears to assume the former and imply that Webber was lying. Two

bases are raised to support the implication; the first is that Bramwell was easily located

the following morning and the second was that his defacto was interviewed on 19

November 2004. Neither argument is in the least bit compelling. I cannot accept that

simply because a witness is located at home in the morning that it can be assumed

they would have been as easily located on the previous evening. As for the interview

with his defacto wife, Gladys Nugent, I note that, at least in the short term, they were

estranged as a result of Bramwell’s assault on Nugent and others in the early hours of

19 November 2004.284 The CMC Review opined that there was ‘no evidence to suggest

the investigators attended the Bramwell house looking for Roy Bramwell or asked his

de facto where he was’. 285 It should be added that there was no evidence to the

contrary. In any event, the whole argument misses the point. The real issue was

whether there was evidence of a breach of discipline or some other impropriety. As I

have indicated, there was no evidence of either.

309. Consequently, I do not intend to sanction either Webber or Kitching in relation to this

matter as there is insufficient evidence to allow for that course of action, nor do I

consider managerial guidance is appropriate.

Allegation 16: Failure to Pursue Other Lines of Questioning

310. The CMC Review complained that Webber, Kitching and Williams ‘failed to ensure that

relevant lines of questioning were pursued’. 286 Unfortunately this complaint is not

specific, so to be comprehensive, I have additionally reviewed the complaint made by

the CMC Review under the heading ‘Failure to pursue other lines of Questioning’. Two

aspects to this complaint were particularised by the CMC Review. The first was that the

investigators failed to interview Steadman.287 The second was the failure to ascertain

284 See Senior Sergeant Raymond Kitching, Interview with Gladys Nugent, (Palm Island Police Station, 19 November 2004), Transcript [116]-[118]; [149]-[151]; [297]-[317]. 285 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 148. 286 Ibid, 166, 167, 169. 287 Ibid 151-2.

198

whether Hurley, Leafe and Bengaroo viewed the watch-house surveillance tape before

the investigation team arrived.288

The failure to interview Steadman

311. The CMC Review comment:

Steadman was not interviewed by the investigation team and it is not clear

what role, if any, he played in the initial QPS investigation.

It is not clear why the investigation team failed to interview Steadman, a

relevant witness.

It is also not clear whether the investigation team was aware that Steadman

was present when Hurley brought Mulrunji into the station, as Leafe told

Webber and Williams in the re-enactment interview on 20 November 2004

that Steadman had not been in the station before Mulrunji was found to be

deceased.

However the investigators were aware that Steadman was in the station

when Mulrunji was found to be deceased, as both Hurley and Leafe had

mentioned this in their interviews on 19 and 20 November 2004 and

Steadman appeared on the watch-house surveillance video. Further they

knew:

• Hurley got ‘one of the Constables who was off duty in the station at the

time’ to print out the OPM for a death in custody.

• ‘there was another officer in the station at the time who wasn’t working’.

• Steadman suggested they look at Mulrunji’s pupils with a torch to check

his vital signs.

• Steadman and Leafe went into the cell and flashed a torch in Mulrunji’s

eyes to see if there was any movement.

Based on this information, the investigation team should have realised it was

necessary to interview Steadman.289

312. Several policy statements were relevant to this issue. OPM s 16.24.3 provides in part:

288 Ibid 152-3. 289 Ibid, 151-2 (citations omitted).

199

PROCEDURE





investigation: ...

(iii) obtain statements from all witnesses, including police officers, as

soon as practicable after the incident and prior to any debriefing

session where practicable;

313. OPM s 8.4.21 provided:

POLICY

Statements should be obtained and submitted from all persons having any

significant knowledge concerning the cause or circumstances of the death.

PROCEDURE

The purpose of supplying statements to a coroner is to provide a complete

picture of the events leading up to and the circumstances surrounding the

death. While no specific direction exists as to whom statements should be

obtained from, the following list provides a guide as to persons who may be

able to provide valuable information:

(i) the person who last saw the deceased alive;

(ii) the person who discovered the body;

(iii) any witnesses to the death;

(iv) any person who may provide information in relation to the scene of

the death;

(v) ambulance officers who attended the scene or transported the

deceased;

(vi) an expert who may be able to make comment on any particular

matter or circumstance which has bearing on the death; and

(vii) any person or member who was involved in the chain of identification.

200

Statements obtained in respect of a coronial matter may contain hearsay

evidence and conversation in the third person. However, when possible,

conversation should be in first person.

314. The Acting State Coroner did not make any complaint in relation to the failure of the

investigators to interview Steadman. Neither did the IRT, who had the responsibility of

considering the Acting State Coroner’s complaints to independently address this

matter. Kitching was not questioned about this putative failure in the investigation.

Consequently, I cannot determine his rationale in not interviewing Steadman.

315. The information available to the investigators suggested that Steadman was not

present at Palm Island Police Station prior to the death. Leafe stated in his re-

enactment:

Webber: Did he ah make (UI) the deceased at all did you see him

touch the deceased

Leafe: (UI) from removing Senior Sergeant Hurley removing him

from the van um I’ve watched him (UI)

Webber: And were their any other people in ah the in the station at

the time?

Leafe: The only person at the time was Mr Bramwell, Roy

Bramwell was sitting in the yellow chair um I don’t think

there was anyone at the counter.

Webber: I noticed from the video that a ah a plain clothes gentleman

go into the cell at one stage

Leafe: He ah that was Constable Kris Steadman he’s the new

police officer here. He came into the station um after after I

found that he was deceased. And he said file a report (UI)

he died (UI) He’d only just come in prior to that.

Webber: So he hadn’t been in the station before that?

Leafe: No.290

316. It seems that Steadman did not directly approach the investigators and indicate that he

had been present prior to the death. Consequently, it appears that Steadman’s

290 Inspector Warren Webber, Re-enactment Interview with Sergeant Micheal Leafe, (Palm Island Police Station), 20 November 2004, [193]-[211].

201

involvement, as known to the investigators, was limited to the activities immediately

after the death. The full extent of his knowledge was not finally understood until his

interview on 8 December 2004.291

317. In the relatively short period the QPS was responsible for the investigation, the

investigators carried out a significant amount of work. Necessarily, they had to prioritise

that work. In the limited time involved in this investigation, Kitching interviewed a

number of witnesses, attended a post mortem at Cairns and completed associated

correspondence associated with this matter including briefings to others.

318. Police witnesses typically prepare their own statements. This is both a matter of

customary practice and is implied in policy. 292 Of course, circumstances will dictate

when this is inappropriate. Clearly Hurley, Leafe and Bengaroo are examples.

However, I do not think it would have been inappropriate for Steadman to have

prepared his own statement had his evidence only addressed the aftermath of the

death. At the very least, the information known to investigators would not have

suggested Steadman was a priority.

319. It is an unfortunate reality that, on occasion, interviews are not conducted or statements

gathered as quickly as would be ideal. Investigators necessarily need to prioritise their

workload during an investigation. Witnesses whose evidence is peripheral or formal are

likely to be given low priority. Steadman’s evidence, as apparently understood in the

early part of the investigation, would properly fall within the description of peripheral.

The CMC investigation appears to have treated the evidence of Steadman in this way. I

note that, despite the importance which the CMC Review now attaches to Steadman’s

evidence, the CMC investigators did not interview him until 15 days after they assumed

responsibility for this investigation.

320. There is no evidence before me which suggests any impropriety in the failure to

interview Steadman. Any suggestion of impropriety would be purely speculative. None

of the commentors, including the Acting State Coroner and the CMC Review have

suggested any particular impropriety beyond the actual failure to take a statement. The

evidence, which might support several reasonable explanations for the failure, does not

suggest any nefarious purpose. On the evidence before me, I am not able to identify

any failure that might constitute a breach of discipline or misconduct. I do not propose

to take any disciplinary or managerial action in relation to the matter.

291 Detective Sergeant Barry Britton, Interview with Constable Kristopher Steadman (Regional Police Headquarters, Townsville, 8 December 2010). 292 Cf OPM s 2.13.8.

202

The Failure to Ascertain Whether Hurley, Leafe and Bengaroo Viewed The Watchhouse

Surveillance Tape before the Investigation Team Arrived

321. The CMC Review commented that:

There was some suggestion that Hurley, Leafe and the PLO may have

viewed the watch-house video before the investigation team arrived on Palm

Island…

While, from the information we have been provided, it is not clear when

Hurley watched the video and whether Leafe and the PLO watched the video,

this should have been established by the initial QPS investigation.

The CMC recognises that the appropriateness of the officers watching the

video is a difficult issue. On one hand, it could have been argued that the

officers had an obligation to watch the video, to see if there was any

immediate danger or obvious cause of death that had to be dealt with

immediately. On the other hand, it could be argued that watching the video

would give the opportunity to ensure that their version of events was

consistent with the evidence of the video. It may have been preferable for a

third party to view the video, instead of one of the officers involved in the

arrest and detention of Mulrunji. Tonges or Steadman could have watched

the video and advised whether there was any immediate threat which had to

be dealt with.

This line of questioning was not pursued further by the IRT. The IRT did not

establish whether any of the investigating officers asked Hurley, Leafe and

the PLO if they had watched the video before the investigation team arrived

on the island.

In the CMC’s view the evidence in this case created the perception that, at

the least, insufficient care and attention was paid to ensuring that either

reliable, complete and accurate information was provided or appropriate

qualifications were attached to the information provided where necessary.293

322. The CMC Review complaint is not that the officers watched the footage. Indeed, they

accept that this is a ‘difficult issue’. I consider that it is reasonable and necessary for at

least one of the officers to review the tape as a matter of priority to identify any

‘immediate danger or obvious cause of death’. It would have been preferable if

someone other than those involved in the detention of Mulrunji reviewed this tape.

293 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 152-3.

203

However, in outlining this preferred course of action, I am mindful of the logistical

limitations that confronted these officers in the performance of their duties.

323. Regardless of who watched the surveillance tape I would expect that questions would

have been asked at some stage of the investigation to document when the surveillance

tape was reviewed and the circumstances that surrounded it. These questions would

preferably have been asked as soon as practicable while the witness’s versions were

still fresh in their minds. However, I do not propose to commence disciplinary action as

the investigators were not allowed to pursue the investigation to its completion and it is

conceivable that this issue may have been identified by the investigators upon their

review and questions in relation this issue may have been asked later in the

investigation.

Detective Inspector Warren Webber

Allegation 6: Lack of Vigour in Questioning the PLO

324. Both the Acting State Coroner and the CMC Review criticised Webber over his

questioning of the Police Liaison Officer during a re-enactment on 20 November 2004.

The Acting State Coroner said:

When interviewed by Inspectors Webber and Williams on 20 November 2004,

Inspector Webber asked Bengaroo whether he was watching what happened

after the fall. Bengaroo said ‘No I wasn’t’. Inspector Webber asked, ‘What

were you doing? What, how come you were standing there?’ Bengaroo said,

‘I can’t remember. I just stood there because I was thinking, um, if I see

something I might get into trouble myself or something. The family might

harass me or something you know’. To which Inspector Webber merely

responded ‘Oh, OK.’

How these senior investigating officers could have let that response remain

unexplored was as wilfully blind as Bengaroo chose to be.294

325. The CMC Review added:

Section 2.13.1 required comprehensive statements to be taken from

witnesses as soon as practicable. Having involved himself directly in the

investigation, Williams failed to ensure that all relevant lines of questioning

were pursued with the PLO and to obtain a full statement from the PLO as

294 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5.

204

soon as practicable. He took no steps to address the communication problem

with the PLO.295

326. Some elaboration was provided in the Executive Summary of the CMC Review:

The Acting State Coroner was critical of the failure of both Webber and

Williams to ask the PLO to clarify what he meant by a particular statement

during a re-enactment interview. At the time the investigators were aware that

Roy Bramwell had alleged he saw Hurley assault Mulrunji after the fall in the

watch-house.

During the interview, Webber asked the PLO whether he was watching what

happened after Hurley and Mulrunji fell in the watch-house. The PLO said he

wasn’t. Williams asked the PLO “What were you doing? What, how come you

were standing there” to which the PLO replied,

I can’t remember. I just stood there because I was thinking, um, if I

see something I might get into trouble myself or something. The

family might harass me or something you know.

…

The CMC considers that the whole point of conducting the re-enactment

interviews seems to have been to gather evidence in relation to Roy

Bramwell’s allegation of assault and about what occurred when Hurley

brought Mulrunji into the police station. The PLO’s answer related to that

central point, yet neither Webber nor Williams pursued it. It is concerning,

particularly if they felt the PLO was difficult to interview, that Webber and

Williams did not take steps to ensure that they were able to elicit information

from the PLO and understand what he had said.296

327. The CMC Review suggests the video re-enactment with Bengaroo had two purposes;

‘to gather evidence in relation to Roy Bramwell’s allegation of assault and about what

occurred when Hurley brought Mulrunji into the police station’. Williams stated that the

purpose of conducting the interview was, ‘to elicit the information from [Bengaroo] as to

what he saw that day’,297 a more general intention than that suggested by the CMC.

295 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 166. 296 Ibid xx. 297 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 454.

205

328. The meaning of Bengaroo’s statement received lengthy consideration during the

inquest before the Acting State Coroner. Mr Martin’s examination of Bengaroo elicited

the clearest understanding of the statement. I have extracted this lengthy passage to

place the statement in context:

Martin: In that re-enactment, you were asked about what you saw

on the day before and at one stage you told the

investigators that you saw Chris and Michael take

that way. They sort of dragged him towards - you’re

indicating down towards the cell?

Bengaroo: Yes.

Martin: And Mr Williams said to you “So they dragged him from

behind, okay, and what did you do as they were dragging

him down the hallway?”, and you said, “I stood right here”.

And you’re very welcome to have a look at the video, but at

the time that you say that, you’re still at the doorway from

the police bay, the vehicle bay, into the police station, it’s

that doorway, you see?

Bengaroo: Yeah.

Martin: Right. Do you want to have a look at the video?

Bengaroo: I’ve seen it.

Martin: You’ve seen it?

Bengaroo: Yes.

Martin: How recently?

Bengaroo: Twice this morning.

Martin: Twice this morning.

Bengaroo: Yes.

Martin: And the policeman goes on, Mr Williams says, “You stood

there?”, and you said, “Yeah.” Mr Williams said “Were you

watching?”, and you said, “No, I wasn’t.” Mr Williams said,

“What are you doing? How come you were standing

there?”, and you said, “Um, can’t remember. I just stood

206

here because I was thinking, um, if I see something, I might

get into trouble myself or something-----“ – some words or

word missing – “-----the family might harass me or

something, you know.” Do you recall saying that? Do you

recall that conversation between you and the investigators?

Bengaroo: I looked at the – when I looked at the video clip, and then it

was true what I said.

Martin: Well, firstly in that video clip, you say that you – you stood

there at the doorway into the police station, not the

doorway into the cells?

Bengaroo: Okay.

Martin: Right, that’s the first thing I wanted to ask you about?

Bengaroo: Uh-huh.

Martin: Because today you say that you – you went up the hallway

to the door that leads into the watch-house. Could I ask you

which is the correct situation?

Bengaroo: I stood on the front door, on the mat.

Martin: At the vehicle bay?

Bengaroo: Yeah.

Martin: Yes. Did you remain there?

Bengaroo: On the front door, yeah, on the mat. I remained there. I

moved once from the door and I moved a bit to the mat, in

the police station.

Martin: The mat inside the door?

Bengaroo: Yeah.

Martin: That leads to the vehicle bay?

Bengaroo: Yes.

Martin: Yes, and you stood there?

207

Bengaroo: Yes.

Martin: And you saw, you say that to the police officers on the

video, is that correct?

Bengaroo: Yes.

Martin: Well, today you’ve told us, and you correct me if I’m wrong,

but I thought today you told us that when Mulrunji was

dragged up the hallway to the cells, you moved up to the

next doorway, which leads into the cells and you stood at

the steps there. That’s what you told us today, didn’t you?

Bengaroo: Yes.

Martin: Well, did you do that or not?

Bengaroo: Yes, I did.

Martin: You did move up the hallway?

Bengaroo: I moved up to the front door. Where I was, there was the

front door there and I move up to the mat inside of the door

in the station.

Martin: Yes, that’s at the doorway that leads to the vehicle bay,

isn’t it?

Bengaroo: Yeah, and to the station, yeah. That was inside the station

far more.

Martin: Yes, yes. But you didn’t walk up to the doorway that leads

to the cells, did you?

Bengaroo: Just afterwards.

Martin: So you did walk up there?

Bengaroo: Yes.

Martin: And that way, you stood at the steps of the watchhouse

door-----?

Bengaroo: Yes.

208

Martin: And watched Mulrunji being placed into the cell?

Bengaroo: Yes.

Martin: Is that right?

Bengaroo: Yes.

Martin: Well, and later on didn’t you say something completely

different to the investigators on 20th November last year?

Bengaroo: Yes, I did.

Martin: And why did you say something completely different?

Bengaroo: Mr – the (indistinct)

Martin: I’m happy to play it again, but you’ve seen it twice today.

There’s – there’s really no room for confusion, is there? If

you look at the video, you’re standing in the position and

you say to the investigators, “I stood here”, and you

indicate where you were standing when they dragged him

away to the watchhouse, that’s where you stayed. Isn’t that

what you say on the video?

Bengaroo: Yes.

Martin: Well, there’s no room for confusion there, is there, Mr

Bengaroo?

Bengaroo: There isn’t.

Martin: Right. Well, that being so, did you say at the door that

leads to the vehicle bay and only stay there, did not move

up to the watchhouse door? Which is it?

Bengaroo: I done both [indistinct]

Martin: You did both?

Bengaroo: Yes.

209

Martin: Well, in context, you point out to the investigators where

you stood and when the investigator said, “Were you

watching?”, you said, “No, I wasn’t”, what were you doing?

How come you were standing there, and that’s indicating

the doorway to the vehicle bay, you said, “Um, I can’t

remember, I just stood here because I was thinking if I see

something, I might get into trouble myself or something.

The family might harass me or something, you know.” What

did you mean by that, when you said, “I just stood here

because I was thinking if I see something. I might get into

trouble myself or something. The family might harass me or

something, you know.” What – what did you mean by that?

Bengaroo: As I said, I must have misplaced when

Martin: Misplaced, what’s that?

Bengaroo: What I said, yeah, what I said.

Martin: Well, were you worried about going down and seeing what

might happen in the cells?

Bengaroo: No, I wasn’t.

Martin: Well, when you say to the policeman, “I just stood here

because if I was thinking if I see something I might get into

trouble myself or something”. What do you think you could

possibly have meant back then on 20th of November? Were

you worried about seeing something?

Bengaroo: No, I wasn’t.

Martin: But you’d agree with me that there must have been some

reason for you saying those words, mustn’t there?

Bengaroo: It came as a shock to me that day when the Court said that,

a bit of a shock, oh yeah.

Martin: A shock finding out that Mulrunji had died?

Bengaroo: Yes.

210

Martin: Okay but even with the shock of that, you wouldn’t say

things unless you had a reason for saying things, would

you?

Bengaroo: That’s right.

Martin: Okay. Well, on the face of the words you seem to be

expressing some concern that you might see something

which might get you into trouble? What do you think that

you might see that might get you into trouble?

Bengaroo: What I see is that – when I work – do work with the police

officer, I’m usually correct the police officer when he – what

he’s doing and what he’s not doing the right thing. I’m

usually correct first.

Martin: I’m sorry, could you just say that again for me please?

Bengaroo: The reason – I’m working with the police officer.

Martin: Yes?

Bengaroo: I’m usually correct the police officer things what should be

happening with prisoners and that.

Martin: Yes?

Bengaroo: I correct my police officer.

Martin: Correct things should be happening with the prisoners?

Bengaroo: Yes.

Martin: Yes, but were you concerned that sometimes incorrect

things might happen with the prisoners?

Bengaroo: Yeah, might happen, yeah cause just like I explain to the

police officers when I’m with them on the job, explain to

them what might happen-----

Martin: Yes.

Bengaroo: -----in the community or something.

211

Martin: Well, on the day, last year, the 19th of November, did you

stay at the door of the police bay because you had a

concern that something incorrect might happen in the cell?

Bengaroo: I didn’t.

Martin: You didn’t? Had you seen something that day that

indicated to you that something more untoward might

happen in the cell?

Bengaroo: It didn’t.

Martin: Can you understand my concern about this passage, Mr

Bengaroo.

Bengaroo: Yes. Yes.

Martin: You see, for example, if you’d seen a police officer do

something wrong to the prisoner, like punching or striking in

some form, if you’d seen that-----?

Bengaroo: I would have seen that I would have correct him straight

away.

Martin: You would have what?

Bengaroo: Correct the police officer straight away.

Martin: Yes?

Bengaroo: Would have said a few words to him straight away, if I’d

seen what he done.

Martin: Yes. But if you did see something like that, would that be

the sort of thing that might give you concern that you might

see something further untoward down in the cells?

Bengaroo: No, I just correct the police officer just what I’m saying, that

if they do anything wrong in front of me with a prisoner, I

usually correct them.

Martin: If they do anything in front of you?

Bengaroo: Yes.

212

Martin: But the one way to avoid that, I suppose, is to absent

yourself from seeing certain things?

Bengaroo: Yes.

Martin: Well, did you have concerns that day on the 19th November

that something improper was going to happen to the

prisoner in the cells?

Bengaroo: No, I didn’t.

Martin: Well, could you then give me an explanation as to why you

said those words, “I just stood here because I was thinking

if I see something I might get into trouble myself or

something. The family might harass me or something, you

know.” Can you give me an explanation as to why you said

that?

Bengaroo: I thought the family could have – after, you know, I was

thinking the family could have said something after what –

what I heard about – about had died in the cells. I

was just worried about that.

Martin: You were worried about the family saying what-----?

Bengaroo: died in the cells. They were upset and

was – died in the cell.

Martin: Yes. But you see, at the time that you’re telling the

investigators these things, you were explaining to the

investigators why you stood at the doorway the day before.

This is before, you know, had died or anything.

You’re explaining to the investigators why on the 19th of

November you were simply standing there at the doorway

to the police vehicle bay and not watching further what

happened into the cells. So what I need to ask you is, what

did you mean by that, that the day before, “I stood here

because I was thinking if I see something I might get into

trouble or something”. What could you have possibly been

thinking about on that day the 19th November as the police

213

officers are dragging Mulrunji off to the cells? What was

going through your mind?

Bengaroo: I just – I thought – I’m thinking – I thought that to myself

they shouldn’t be doing that what they was doing.

Martin: You thought the police officers shouldn’t have been

dragging Mulrunji off?

Bengaroo: Yes.

Martin: Why?

Bengaroo: That was my thoughts.

Martin: But what was wrong with what they were doing? Why were

you concerned about that?

Bengaroo: Concerned that they – wouldn’t walk [indistinct] so they

found the – couldn’t find a way to get him in the cells, so

they end up dragging - dragging him.

Martin: Mr Bengaroo, but you’re not suggesting that merely by

dragging him that was doing something improper, or are

you?

Bengaroo: I’m not.

Martin: Well, that couldn’t have been of concern to you then. Was

there anything else that was concerning you?

Bengaroo: No, that’s all I can recall.

Martin: I see. Well, could I just clear up where we’re at with this. Do

you now say and take your time before you answer, do you

now say that you did go to the watchhouse door and watch

Mulrunji being placed in the cell, or did you stay back at the

police vehicle bay door and simply remain there when the

police officers dragged Mulrunji away? Do you understand

my question?

Bengaroo: Yes.

Martin: Yes. And you understand I’m suggesting to you so far

we’ve got two different versions. One, is the version that’s

214

in the re-enactment with the police officers, where you said

that you stayed back at the front door and we’ve got a

version today where you said that you went to the

watchhouse door and watched him being placed in the cell.

I want you just finally to tell us which is the correct version?

Bengaroo: Well, I went to the front door and seen both officers

dragged him to the cell door – to the door heading to the ---

--

Martin: To the cells?

Bengaroo: -----cells. Yeah.

Martin: Yes. But you stayed at that front door?

Bengaroo: Yes.

Martin: Yes, and can you tell me now why you didn’t follow them

up the hallway and watch him being placed in to the cells?

Why you wouldn’t do that?

Bengaroo: I just thought that that was in safe hands and that they –

both officers was – didn’t need my help, so I just stood

where I was.298

329. It is regrettable that this issue was not resolved until the inquest. This is particularly so

given that Bengaroo was interviewed by CMC investigators on 8 December 2004. After

examination of this interview, I note that the CMC investigators refer to the transcript of

the re-enactment interview that Bengaroo had provided on 20 November 2004. Clearly,

the CMC investigators had the opportunity to reflect upon the impugned statement and

pursue it during their interview. Unfortunately, they did not. In contrast, the CMC

Review complains that Webber and Williams, whilst conducting the re-enactment,

should have immediately identified the significance of Bengaroo’s statement and

pursued it. Within this context, I find it inconsistent for the Acting State Coroner to label

Webber and Williams as ‘wilfully blind’ whilst commending the CMC investigation for

proceeding ‘thoroughly, competently and impartially’. 299 This inconsistency is all the

more surprising when one considers the explanation provided by Webber.

298 Ibid 527-32 (emphasis added). 299 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5, 11.

215

330. Webber was examined by a number of the parties during the inquest before the Acting

State Coroner. Some of the more significant examination is extracted below. Firstly,

Webber was examined by Mr Martin, counsel assisting the Coroner:

Martin: Okay. Well, what's recorded in the transcript - and you're

welcome to see the re-enactment if necessary - was Mr

Bangaroo was being asked about where he was and was

he watching when Senior Sergeant Hurley and Mulrungi

went inside the police station and - going down towards the

watch-house; are you with me?

Webber: Yes.

Martin: Yes. And this is what's said - this is what's transcribed - by

Mr Williams; "Were you watching?" "No, I wasn't". "What

were you doing? What - how come you were standing

there?" Mr Bangaroo said, "Um, I can't remember. I just

stood here" - and could I indicate, Inspector, that he's

talking at the door of the police station - "I just stood here

because I was thinking, um, if I see something I might get

into trouble myself or something" - and there seems to be

perhaps a word that isn't recorded - "The family might

harrass me or something, you know." Now, do you recall

Mr Bangaroo saying those words?—

Webber: Well, obviously, if it's on the transcript that was - that's what

was said. My recollection is slightly different. I recall him

being in the - in the doorway, and my recollection or - of the

scenario or the - was that he was asked that the deceased

was allegedly on - on the concrete floor with Hurley lifting

or whatever, and he was asked something in the context of,

"What were you doing, or what - what did you do?", and

that's my interpretation of - of what was said.

Martin: Yes?--

Webber: And the reply was in the context of, "I - I didn’t do

anything". Well, that's not what he's actually said, but I

didn’t do anything because, as a PLO he doesn't get

involved in arrests. He didn’t lay hands on him and he

didn’t - and he was - and the reason why they don’t do

anything like that is because they're worried about

216

harassment in the community or - either by the offender of

the accused or the family subsequently.

Martin: Well, you see-----?--

Webber: That's my interpretation of - of what he said.

Martin: Well, I suppose it comes down to this, doesn't it. Did you

hear him say, "I just stood here because I was thinking, um,

if I see something I might get into trouble myself or

something."?

Webber: Well, I mean, my interpretation at the time would be more

that if I do something I might get into trouble myself, or -

or-----

Martin: But, with respect, how do you get "if I do something" out of

the words "if I see something"?

Webber: Well, it's just a - if I do something rather than I see

something. That was-----

Martin: You don’t see any difference in the meaning there?

Webber: There is obviously, but that was my interpretation. That's

what I'm saying, is that was my interpretation. That's what I

understood - understood him to say. I mean, it's nine

months ago, I haven't seen interview, I haven't seen a tape

since that time, but that was my understanding at the time

that that's what he was actually trying to say.

Martin: You see, at this stage you're investigating a death in

custody and at this time you've already spoken to Roy

Bramwell; is that correct?

Webber: That's correct.

Martin And as far as allegations go, the critical part of Roy

Bramwell's discussion with you was that he saw Senior

Sergeant Hurley when Mulrunji was on the concrete floor,

saw his elbow go up three times, accompanied by words

like, "Do you want more, Mr is that right?

Webber: That's what Mr Bramwell told us. Yes.

217

Martin: Yes. So, that you're already seized of that allegation by the

time you speak to Lloyd Bangaroo , and then Bangaroo

says, "I just stood here because I was thinking, um, if I see

something I might get into trouble myself or something."

Did you not think that Mr Bangaroo might have been

indicating by those words that he had already seen

something untoward and didn’t want to go down further to

see anything further go on?

Webber: No. As I said, I interpreted it, and maybe I misheard it or

maybe I interpreted it incorrectly, but I interpret him saying

that if I do something I will be in trouble, I'll be - be

harassed, that sort of scenario.

Martin: I see. So, that's not the way you heard it, the way I've read

it out?

Webber: No.300

331. Mr Martin continued his examination after playing the recording of the conversation:

TAPE PLAYED

Martin: Did you hear that all right?

Webber: Yes, I did.

Martin: You can quite clearly hear from that, anyway, that he says,

"If I see something"?

Webber: Yes, but, as I say, that's the phone but - or the - or the

recording device. That's not the way I interpreted it at the

time.301

332. Finally, Mr Callaghan examined Webber:

Callaghan: You've been taken this morning to that passage of Mr

Bangaroo's re-enactment.

Webber: Yes.

300 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 720-1 (emphasis added). 301 Ibid 723 (emphasis added).

218

Callaghan: in which he expressed concern that if he saw something he

might get in trouble himself?

Webber: Yes.

Callaghan: You tell us that this was not discussed with Mr Williams?

Webber: Sorry?

Callaghan: This passage of evidence, about which you know Mr

Williams was asked on Tuesday, was it discussed between

you and Mr Williams?

Webber: No.

Callaghan: Not a word?

Webber: No.

Callaghan: Okay. Well, you heard that passage of evidence played to

you a moment ago on the video recorder?

Webber: Yes.

Callaghan: That's, I take it, as you heard it on the day? That is, the

words we heard recorded are the words that you heard

spoken?

Webber: No. I can't say that.

Callaghan: You can't say that?

Webber: No, I can't.

Callaghan: What was - you were standing right next to him?

Webber: He's got a - or had a microphone there. I certainly can't say

that those exact words are what I heard and what I

interpreted, because certainly they aren't-----

Callaghan: Well-----?

Webber: -my recollection of what occurred.

Callaghan: When Mr Martin took you - identified this topic for cross-

examination in the first place, you seemed to know exactly

219

what he was talking about. You didn't ask for a transcript,

for example, did you?

Webber: No.

Callaghan: You didn't ask to hear it before you were asked any further

questions about it?

Webber: No.

Callaghan: Did you make some effort to read a transcript or listen to a

tape before you gave evidence today?

Webber: No.

Callaghan: You read the newspaper report?

Webber: Yes.

Callaghan: Did you read any newspaper report - a - the reproduction of

those words?

Webber: Yes, I did.

Callaghan: Okay?

Webber: And I did - as I said, I did not agree with them. They were -

didn't conform with my recollection of what occurred.

Callaghan: Because you heard it as - well, you understood it to mean,

"If I do something I might get in trouble.", is that right?

Webber: Well, my - yes, words to that effect.

Callaghan: Yes. You heard the word, "saw" as the word, "do"?

Webber: Well, that's my - well, that's my recollection-----

Callaghan: Yes?

Webber: because it's my understanding of what I said. My

understanding-----

Callaghan: Yes?

220

Webber: was that what he was - what he was - what he was saying

was that he doesn't get involved in arrests, doesn't put his

hands on any prisoners-----

Callaghan: Yes?

Webber: whatever, because that's not his job-----

Callaghan: Yes?

Webber: it's the police officer's job and that - and the reason for that

is because of the possibilities of harassment by either the -

the defendant or family members.

Callaghan: You see, Inspector, that might explain why he didn't get

involved in helping Senior Sergeant Hurley in restraining

the man that he'd taken into custody. But how could that

explain why he would stay outside the police station?

Because you've seen that's what the conversation was. He

said, "I stayed here. I stayed here because I might get in

trouble.". Even if - it was, "If I do something". Why would he

stay outside?

Webber: Well, my understanding is that he was actually standing in

the doorway.

Callaghan: Oh, come on, you saw the video?

Webber: I think even the video, it actually shows him standing in the

doorway.

Callaghan: Yes. But not going into the police station. Why would he

stay?

Webber: Well, we could-----

Callaghan: Why would he stay there?

Webber: I don't know.

Callaghan: Yes?

Webber: I don't know why-----

Callaghan: And you weren't curious to ask

221

Webber: Well, if he wasn't going to - what else was he to do. If he

wasn't going to be involved, he wasn't going to touch the -

touch the prisoner, the prisoner was taken off and gone to

a cell, what other involvement would he have to do, other

than to leave or - or go-----

Callaghan: Yes?

Webber: to another part of the station.

Callaghan: Exactly. Why wouldn’t he go to another part of the station?

Why wouldn't he go and open a cell door? Weren't you

curious about any of those options?

Webber: I - I just took it that he - he stood there while that took place

and then - and then he left. I didn't - I didn't assume that he

- he stayed there for the next 10 minutes, half an hour or

whatever. That as soon as that was done he left.302

333. Webber provided some elaboration of his testimony at the inquest when interviewed by

the IRT:

Okay. Ah we spoke of BENGAROO and it might be an

appropriate time now to speak of ah your interaction with

ah Lloyd BENGAROO the P-L-O on the island. Ah I think it

goes without saying that the, the questions I probably need

to talk to you about would be the ah recreation at the

scene, the reconstruction of the scene. Um I could read

that out to you but I think that you've been cross-examined

at length ah in the inquest in relation to your, your

perception and, or what you heard in relation to

BENGAROO's words where much criticism was placed on

it and, and what I need to talk to you about now is the

criticism of your what was described as lack of ah

robustness in relation to questioning of BENGAROO once

he made statements that he didn't want to go into the room

ah because um of what, what he might see.

Webber: Well there's probably a couple of points is firstly ah as I

understood the ah, the answer that he gave ah and, and as

302 Ibid 734-7.

222

I, as I said at the time at the ah, at the inquest ah I

interpreted what he said and I understood that what he had

said was that ah if I do something ah of course it's, it's, it's

recorded as ah if I, if I see something or something. Um

and I, and I made the observation or I note that ah

BENGAROO at times is extremely difficult to understand

and, and comprehend. And one of the things it would

appear and I think that's been reinforced by subsequent

interviews and probably Counsel or whatever at the inquest

is that if, if challenged, if, if challenged um I suppose or

they simply go into a, into a shell and you just get nothing,

you just get nothing ah, just nothing further from them.

And that's BENGAROO you're talking about?

Webber: Yes. Yeah. Um and my interpretation of what he said was

that if I, if I do something, if I get involved in the arrest or

anything ah I can expect or I might get, ah might get ah into

trouble with family members etcetera and my experience of

aboriginal communities and everything would suggest

exactly that is if they get directly involved in things ah they

can expect repercussions etcetera and he, and Lloyd has

since had repercussions as a result of his involvement in

this investigation. Um and my interpretation of that was that

he just did not want to um, to know anything about it so he

stayed out of it. Not that there necessarily, not that he was

seeing anything improper or anything like that, or doing

anything improper, he just didn't want to know about it.

What was BENGAROO's demeanour like when you were

interviewing him UI and prior to that, was he upset?

Webber: Um that probably, the best word I could say is, is a very, a

very reluctant witness.

Okay. So he was difficult to talk to, he was -

Webber: Difficult to talk to.

- difficult to understand and communicate with.

Webber: And, and just did not want to be there.

223

In hindsight ah and after the inquest whereby they've

replayed those certain, his, his comments to you, um I

mean if you want we could play that to you if you want to

see it again, you don't need us to play that to you?

Webber: I don't think so. Look um one of the, one of the - at this

stage one of the purposes in the investigation, we were, we

were there collecting facts. We-we're doing as broad an

investigation as we possibly could to get as much

information as, as, as we could about what had, what had

occurred. Um we had no idea as to what the actual cause

of death was and what particular aspects if any we, we

should know UI. So what we were endeavouring to do was

to adopt a broad brush effect, obtain as much information

as we possibly could from all those with any, any

knowledge and then having been given some guidance and

direction from the outcome of the post mortem as to what

the cause of the death was, we could then narrow in on ah

any particular aspects and ask, ask further questions

etcetera. Um if necessary we, we would have gone back to

ah and asked further questions of Lloyd BENGAROO or

any of the others. Ah, ah HURLEY for example we, we

interviewed on I think three occasions ah in, in total. Ah

some of the others were interviewed twice, so we were just

adopting a broad brush approach and as information ah

come to light. Ah in hindsight having read the transcripts

and all the rest of it, knowing all the other evidence and all

the rest of it, obviously ah we would ask additional,

additional questions. That's a matter of process I suspect

that what you will do is like we will do. You will go back,

review this conversation and you may or may not find some

additional points that you would have, you know you may

see it would have been nice to ask this question and all the

rest of it. Ah but you just didn't th-think of it or see it at, see

it at the time and I'm sure legal counsel find exactly the

same issue when they look at a transcript of the court

proceedings afterwards.

Did ah BENGAROO when, when you were interviewing him

did he come across as someone who was confident or did

he appear apprehensive, um -

224

Webber: I, I wouldn't say certainly not confidence, I wouldn't say

apprehensive but I'm probably not in the position as I say

reluctant but I'm a, I guess a senior officer, he's a P-L-O I'm

not sure what his demeanour is, I hadn't met the man

previously so I'm not sure what he is at, at the normal UI

but he was certainly reluctant, didn't want to be there and to

be honest with you um BENGAROO wasn't called at the

subsequent trial and all the rest of it because I think the

Defence, ah the Crown Prosecution and the Defence

basically agreed that ah he couldn't give any information or

evidence that was going to assist at all.

Have you any other questions Inspector?

Just so I'm clear, ah what you said in the inquest as I

understand it is um you understood what BENGAROO ah

was saying to mean that he might have to do something?

Webber: Yeah.

Rather than the words that he actually used ah when you

look at it again ah that he might see something?

Webber: Yeah. If, yeah so if I do something in order words if he

actually got involved, put his hands on and actually got

involved in assisting HURLEY or whatever involving the

arrest and lays his hands on him and, and assisted him to

carry him in or whatever than he's potentially liable to

retribution from the family etcetera and they're told no not

to do that.303

334. It is clear from this testimony that Webber contends he misheard, or at least,

misunderstood, Bengaroo’s statement. Webber assumes that Bengaroo was motivated

by concerns that if he became personally involved in the matter he would be liable to

harassment from the family or exceed his duties as a Police Liaison Officer. This

explanation is plausible and no evidence has been presented to indicate that Webber’s

version should not be accepted.

335. The other aspect of this complaint is that Bengaroo had suggested he had positioned

himself so that he did not see anything, that is, that he was concerned that he might

303 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), [732]-[880] (emphasis added).

225

see something. Mr Martin’s questions assume that this ‘something’ must have been

something untoward. However, there is no real basis for that view. The Acting State

Coroner concluded that Bengaroo was

careful not to see or intervene in a situation where he knew he had no power

to influence what happened [and] … he felt he could do nothing without

further risk of ridicule and censure from his own people.304

336. This seems to accord both with my view and the view expressed by Williams. 305

Bengaroo was reluctant for fear of repercussions to him from the community. Williams

expressed the view that pursing that matter directly was likely to stymie the interview.

Instead, Webber and Williams focused on ascertaining what evidence Bengaroo could

advance.

337. The difficulties experienced in interviewing Bengaroo are well documented. The Acting

State Coroner noted that Bengaroo ‘had difficulty in giving his evidence in court and in

making statements to investigating officers’ and that his evidence was characterised by

‘inarticulate responses and … reticence’. 306 Mr Martin suggested that ‘Bengaroo’s

answers could not be relied upon’, a view shared by the Acting State Coroner at least

in so far as factual matters were concerned.307 The prosecutor at the trial of Hurley

expressed the view that he ‘had no confidence that [he had] any idea what [Bengaroo]

would say when he was sworn and - and gave his evidence’.308

338. The findings of the Acting State Coroner clearly support the assertions of Williams and

Webber that Bengaroo was a reluctant witness and was concerned about harassment

from Mulrunji’s family.

339. An examination of the re-enactment interview with Bengaroo conducted on 20

November 2004 reveals that it was comprehensive although non-adversarial. This is

consistent with the technique adopted by the investigators to use a ‘broad-brush’

approach in gathering material. The CMC Review commented that:

In his evidence to the IRT, Webber said that he and Williams at that stage

were adopting a ‘broad brush’ approach and attempting to obtain as much

information as they possibly could - so they could later ‘narrow in’ on some

304 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5. 305 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane), 8 August 2007, Transcript Tape 1 [187]-[215]. 306 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006). 307 Ibid. 308 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395.

226

aspects and go back and ask further questions as necessary. In the CMC’s

view, this only underlines the fact that if they were trying to obtain as much

information as possible, they missed an important opportunity to explore

further the PLO’s response to a critical question.309

340. I do not intend to sanction Webber for his investigative approach. He was interviewing

a reticent and unsophisticated witness. His pattern of questioning was well suited to the

situation. Nor do I intend to sanction Webber for mishearing or misunderstanding the

comment of the quietly spoken Bengaroo. I accept that a statement should have been

obtained from Bengaroo to clarify any outstanding issues arising from the re-

enactments. However, given that his interview had been recorded, I also accept that

there was no particular urgency in reducing his statement to paper. There is no material

before me that would suggest a statement would not have been taken following a

review of all the material obtained including the version Bengaroo provided during the

re-enactment. I am also mindful of the fact that the investigation was handed over to

the CMC on 24 November 2004. Despite my request, I have not been provided with

any copy of a statement taken from Bengaroo by CMC investigators or of any

additional recorded interviews that clarify, amongst other things, the comment made by

Bengaroo during his re-enactment with Webber and Williams. 310 Having regard to

Webber’s explanation during his record of interview with members of the IRT and

without evidence to the contrary, I do not in these circumstances propose to commence

disciplinary proceedings with respect to this allegation.

341. The remaining criticism raised by the CMC Review is that:

If Webber and Williams found the PLO difficult to understand and if they were

concerned about not being able to understand him or about him being so

nervous, they should have taken some steps to overcome the communication

difficulties, for example offering to have a support person for the PLO.311

342. I accept the investigator’s views that Bengaroo was a reluctant witness and at times he

was difficult to understand and communicate with. It does not necessarily follow that a

support person would have assisted. It is not clear on my reading whether the difficulty

was a consequence of Bengaroo’s aboriginality or a general reticence common to

many interviewees irrespective of racial background. The Acting State Coroner spoke

of Bengaroo’s ‘difficulty in giving his evidence in court and [h]is almost inarticulate

309 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 99. 310 See, generally, Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010. 311 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 99.

227

responses and … reticence‘312 despite the provision of a support person. I find the

allegation that Webber demonstrated a lack of vigour when questioning Police Liaison

Officer Bengaroo cannot be supported on the material considered by me. I do not

propose to commence any disciplinary action nor provide managerial guidance with

respect to this allegation.

Allegation 9: Notification of the Deceased’s Family

343. Webber was criticised for failing to notify Mulrunji’s family of his death in a timely

manner.

344. I accept that approximately 4 hours and 15 minutes elapsed between Mulrunji passing

and the notification of his family of his death. I further note that on two separate

occasions during this time period, members of Mulrunji’s family attended at the Palm

Island Police Station enquiring about Mulrunji’s welfare. On one of these occasions

Hurley advised Tracey Twaddle to come back at three o’clock and did not advise her

that Mulrunji had died. It is not alleged, however, that Webber approved of or instructed

Hurley to undertake this course of action.

345. Only 45 minutes elapsed from Webber’s arrival at the Palm Island Police Station and

the notification of Mulrunji’s family of his death. In that time, Webber appraised himself

of the relevant circumstances and secured the support of appropriate community

members in delivering the death message. These actions are consistent with his

assertion that, on arrival at Palm Island, notifying the next of kin of Mulrunji’s death was

a priority.

346. Webber’s actions have been subject to criticism from different sources. The Acting

State Coroner commented:

Consideration should be given by the Police Commissioner to the training

officers receive to ensure they are aware of their obligation under the OPM if

involved in deaths in custody. In particular the Commissioner should ensure

that officers strictly comply with section 16.24 (vi) to (viii) of the OPM and

immediately arrange for the next of kin to be notified where a death in

custody occurs. 313

347. The Acting State Coroner further stated:

312 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5. 313 Ibid, 32 (emphasis in original).

228

The fourth matter raised was that Mulrunji’s family were misled when they

came to the police station to inquire when he would be released and were

sent away. It was known that Mulrunji was dead. The most urgent

consideration and advice should have been sought to properly, promptly and

respectfully inform his family. If Senior Sergeant Hurley was not in a position

to inform the family, then another police officer had to assume that

responsibility. It is perhaps another indication that all was not well on Palm

Island that the police were not in a position to immediately liaise with a local

person of standing in the community to assist in speaking with the family in

such difficult circumstances.314

348. The CMC Review was also critical of the delay in informing the family of the death:

In the CMC’s view the delay in notifying the family of Mulrunji’s death was not

acceptable. It was more important for the family to be notified without delay

than it was to be notified by a senior officer. Another officer, such as Leafe or

Tonges, could have respectfully and sensitively carried out this responsibility,

probably with the support of a member of ATSILS. They could also have

assured the family that the senior officer responsible for the investigation

would visit them as soon as he arrived on Palm Island.

We agree with Webber that it was important for the senior officer to talk

personally to the family but we do not believe that the notification of Mulrunji’s

death should have been significantly delayed on this account. The distress

caused by this was only exacerbated by family members inquiring about him

having been turned away from the station earlier in the day.

Webber’s key responsibility in relation to notifying family

As the officer responsible for the investigation, it was Webber’s responsibility

to ‘immediately arrange’ for notification of the deceased’s family – that is,

attend to this matter immediately or arrange to have it done promptly, but not

necessarily do it himself.

Webber said that notifying the family was best done by a senior officer and

that it was not appropriate for this to be done by officers involved in the

incident. He does not seem to have considered other reasonable and much

timelier alternatives, as outlined above. He was also concerned about the

need to keep ‘the crime scene intact’ and that upset family members might

turn up at the police station and put pressure on the police.

314 Ibid 33.

229

While these are all significant issues, the OPM required Webber to

immediately arrange for Mulrunji’s next of kin to be notified.315

349. Two separate sections of the OPM 316 provided guidance in relation to ‘death

messages’. However, as Webber assumed the responsibility of notifying Mulrunji’s

family, only OPM s 16.24.3 ‘Additional responsibilities of officers investigating deaths in

custody’ requires consideration. This section provided, in part:

PROCEDURE





investigation:

…

(vi) immediately arrange for the next of kin or person previously

nominated by the deceased to be notified. Cultural interests of the

person being notified should be respected by using the cross cultural

liaison officer, if practicable. Where the deceased is an Aborigine or

Torres Strait Islander and there is a delay or inability to notify the

next of kin, efforts to notify the next of kin should be recorded;

(vii) in circumstances where the deceased is an Aborigine or Torres

Strait Islander, notification should preferably be assisted by an

Aboriginal or Torres Strait Islander person known to those being

notified;

350. OPM s 16.24.3(vi) appears intended to implement the recommendation made in the

RCIADIC which called for that immediate notification of death of an Aboriginal person

be given to the family of the deceased.317

351. I do not accept the CMC Review’s contention that Webber did not comply with OPM

s 16.24.3 by failing to immediately arrange for the next of kin to be notified of Mulrunji’s

death. The word ‘arrange’ may include ‘prepare or plan’318 or ‘plan or provide for’.319

315 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 128-9. 316 Sections 8.4.3 ‘Responsibilities of investigating officers’ and 16.24.3 ‘Additional responsibilities of officers investigating deaths in custody’. 317 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1, 4.6.14. 318 Macquarie Dictionary, 5th Edition, 2009.

230

Webber did immediately ‘arrange’ to notify Mulrunji’s next of kin by accepting that

responsibility himself and then preparing travel arrangements and attending at Palm

Island so that he could personally speak to the next of kin. The real mischief that is

complained of is that in making those arrangements, there was an unacceptably long

time-delay in making the notification.

352. As noted, the RCIADIC made a specific recommendation outlining the expectations

held by stakeholders within the community to immediately notify the next of kin of a

person’s death in custody. This recommendation is binding upon police officers only to

the extent that it has been implemented. Nevertheless, it does indicate the expectations

held within the community about this issue. In that context, a departure from the

procedures as outlined in OPM s 16.24.3 should not be undertaken lightly and would

require strong justification.

353. Consequently, it is necessary to examine the rationale behind Webber’s decision to

personally notify Mulrunji’s next of kin of his death. Webber was examined at the

inquest before the Acting State Coroner where he said:

Martin: Inspector, I note from your statement that once you got to

Palm Island you treated as a priority notification of the

family; is that so?

Webber: Yes, it is.

Martin: Okay. Had you been kept aware before you got to Palm

Island that the family had not been notified of the death?

Webber: No, but I made no arrangements for the family to be

notified. I - I expected that to be my responsibility. Under

the particular circumstances concerned I believed it was

appropriate for a senior police officer to notify the family

and under those circumstances I took it upon myself to

notify the family upon my arrival.

Martin: But before you got to the island, were you aware that the

family had not been notified? I mean, were you kept

abreast of the state of play, is what I want to know?

Webber: Well, I knew that the family had - no specific directions

were given to notify the family.

319 Australian Concise Oxford Dictionary, 4th Edition, 2004.

231

Martin: Yes. And no specific direction not to notify the family?

Webber: I believe - well, I wouldn't expect them to notify the family if

- if I hadn't directed them to do so.

Martin: I see. And could you just tell us your reason for that?

Webber: Well, simply in this particular circumstance the officer in

charge of the station and the police liaison officer involved

at the station were actually involved in the incident. Under

those particular circumstances I did not believe it

appropriate for - for them, or certainly a junior police officer

to actually go and notify the family. I thought it was

appropriate for a senior officer to notify the family and

advise them that the matter would be properly and

thoroughly investigated and - so, that was my

responsibility.320

354. Later, during the continuation of this examination, he said:

Martin: Well, you don’t have a problem, so it seems, with the

proposition that the family of Mulrunji was not notified by

any of the police on the island that he was dead?

Webber: I have probably a problem and - and a concern that we

weren't able to do that as promptly as would be desirable.

Martin: Yes?

Webber: I - I - I can see that point, but I don’t believe it would have

been appropriate and I accept responsibility for that, but I

don’t believe that it was - was appropriate or would have

been appropriate to have a junior officer or one of the

people involved actually to-----

Martin: Right. And that's because they'd be uncomfortable with it?

Webber: Well, probably.

Martin: Is that right?

320 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 719 (emphasis added).

232

Webber: Both parties, I think, would ultimately be uncomfortable with

it.

Martin: So, you presume to speak for the comfort of the family of

someone who's died in custody, do you?

Webber: Well, I think there's - there's procedures and all the rest of

it. I would - I would think I, myself, would feel uncomfortable

with it. I don’t presume on their behalf, but I - if I myself

would feel uncomfortable with it, I believe it's not

unreasonable to expect that they may also feel

uncomfortable with it.

Martin: Do you not accept, as a starting point, that the family of

someone who's died in custody would like to know as soon

as possible that their relative was dead?

Webber: Yes, I do.

Martin: Okay. But in this case, as far as you're concerned, that

principle is overridden by concern for the comfort of the

police officers who might be charged with the duty of

notifying them. Is that how it works?

Webber: No.

Callaghan: He didn’t say that in-----

Martin: I'm asking him if that's how it works?

Webber: No, it is not.

Martin: Well, then, what do you say, what is the concern which

prevented the promptest possible notification of the death?

Webber: Because I don’t believe it was appropriate to have one of

the persons of interest, if you like-----

Martin: Right?

Webber: ultimately advise the next-of-kin.

Martin: There are other police on Palm Island?

Webber: A consul.

233

Martin: Yes?

Webber: Mmm. And I don’t-----

Martin: And-----?

Webber: And I also believe that it was appropriate for a senior

officer, one more senior to - than the - than the people

involved.

Martin: Was Detective Robinson on the island?

Webber: No, he was not.

Martin: He was not on the island at the time?

Webber: No.

Martin: He arrived with you, did he?

Webber: He did.

Martin: All right. Anyway, you say it's not the constable's - it's not

for the constable, in that sort of situation, to be sent to

notify that family?

Webber: I don’t - I don’t believe so. It's a-----

Martin: And that’s because it's - you don’t think the family would

like it and you don’t think the constable would like it either?

Webber: Well, I don’t believe - I don’t think either party would like it.

No-one - no-one enjoys - enjoys that - delivering that

message, but I believe that it was appropriate for a senior

officer to do it to reassure the - the mother of the deceased

that a thorough and proper investigation would be

conducted of that death and I believe that's what I

endeavoured to do.

Martin: So, in a situation like this, we wait on the convenience of

the police to provide a senior officer to deliver the

notification?

Webber: As I've said, under the particular circumstances it's,

fortunately, a very unusual event, but under the

234

circumstances where the officer in charge of the station

was actually involved in the incident, the police liaison

officer for the island was actually involved in the incident,

we simply could not use them. Under other circumstances I

would have been quite comfortable with the officer in

charge notifying the next-of-kin, and would have agreed to

that occurring, but in this particular case I did not believe it

was appropriate.321

355. Webber was also examined by Mr Boe:

Boe: And that there have been guidelines issued, or

recommended by commissions of inquiry to improve

conditions, so that firstly the number of deaths are

minimised and secondly to ensure that the investigations

are transparent and satisfactory?

Webber: Yes.

Boe: Why I ask that is, that when you were dealing with the

issue of notification to the family, I understood your primary

concerns were as to the point of communication to the

family member by a police officer, namely that you thought

it should be somebody senior, and somebody senior to the

possible participants in the circumstances?

Webber: Yes.

Boe: Are you not aware of the recommendation by the Royal

Commission that in fact the appropriate course of informing

the family is that a senior member of the Aboriginal

community should be asked to do that? I'm referring to, for

the record, recommendation 19?

Webber: No, I'm certain-----

Boe: Not aware of that?

Webber: I'm not aware of that. And if I recall correctly - I mean I

don't claim to know the - our operational procedures

manual verbatim, but certainly if I recall correctly our

321 Ibid 725-6 (emphasis added)

235

procedure is that an officer should do it. Preferably in

company with either a cross-cultural liaison officer, or a

police liaison officer.

Boe: I think you're right, you're not very aware of what the

operational manual says. Are you not aware of the

recommendation that a senior member of the Aboriginal

community should be the person asked to go and

communicate that matter immediately?

Webber: Yeah, no, I'm not aware of that.

Boe: You went over to be in charge of the investigation, but

you're not aware of that recommendation?

Webber: I'm not aware of that recommendation. But certainly if that's

the case, there's nothing I can do about it. But certainly

what I did do was, I endeavoured to make sure that there

were two representatives of the Aboriginal Legal Aid officer.

Boe: Sure. I'm aware of what - I'm trying not to cover matters

that you've responded to?

Webber: That's all right.

Boe: On this already. You could understand, can't you, that in

balancing the needs of the family - that there's a great need

to take stock of the learning that's been achieved by

commissions of inquiry, and senior police, about what is the

right way to go? On notification?

Webber: I accept that.

Boe: And you would think that what you did here, mainly by not

knowing what had been recommended after commissions

of inquiry, was a really horrible mistake, frankly?

Webber: I'm not required as such to follow the recommendations. I

follow the police procedures and all the rest of it. If I failed

to follow the guidelines and police procedures, well I'm

guilty of a transgression.

Boe: All right. You certainly would not have been saying to the

police to mislead the family at all, would you?

236

Webber: No.

Boe: Your responsibilities stopped at giving every indication that

you would go and notify and you thought it was not

appropriate for others to notify?

Webber: That's correct.

Boe: If there's any misleading - that's not within your ambit of

responsibility that you're taking now?

Webber: No. In this instance, obviously there was some competing

demands. There were those of the community and the

family-----

Boe: All right?

Webber: And (indistinct) the police investigation itself, or the

requirement to investigate the death.322

356. Later, he continued:

Boe: Can you appreciate the sensitivity that occurs when there's

a death in custody, and police come in to investigate other

police?

Webber: I do.

Boe: And you would think that where it's possible you would take

steps to remove perceptions of bias, as much as actual

bias?

Webber: Yes.

Boe: And that's important, isn't it?

Webber: I think it is important, and that's one reason, as I say, that I

as the senior detective within the northern region, actually

attended, to make the notification of death, and also to

speak to Tracey Twaddle, the partner of the deceased, and

also Doris 323

322 Ibid 739-40 (emphasis added). 323 Ibid 741 (emphasis added).

237

357. Finally, during examination by Mr Hunyor, he said:

Hunyor: That's why-----?

Webber: But there are specific - there are also, in addition to that,

additional requirements in relation to deaths in custody.

Hunyor: You spoke about the difficulties that there may have been

and insensitivities or sensitivities or appropriateness

associated with police from the community, being involved

in informing the family of the death?

Webber: Yes.

Hunyor: Correct. Yet you took Sergeant Leafe with you?

Webber: Yes.

Hunyor: What happened to the concern about sensitivities and

appropriateness then?

Webber: He was there simply as an observer to show me where to

go, and to drive.

Hunyor: But he was with you when you spoke to them?

Webber: Yes.

Hunyor: Wasn't just to get you-----?-

Webber: And he-----

Hunyor: -----the directions there?

Webber: And he also went to get a neighbour to - to render some

assistance.

Hunyor: It just didn't seem that the sensitivity issues or appropriate

issues stayed with you very long. You've got one of the

people in the station actually being with you when you're

actually talking to them?

Webber: Well, to my knowledge, Leafe was not actually involved in

the - the arrest of the - the deceased.

238

Hunyor: Well, why didn't you send him up there before you got there

then?

Webber: Cause as I said I wanted to be there as a senior officer and

more senior officer.

Hunyor: Than Hurley?

Webber: Than Hurley.324

358. It is clear from the testimony provided by Webber that he took into account a number of

factors in deciding that he was the appropriate person to provide the notification of the

death of Mulrunji. He raised a concern about competing demands between the

community, the family and the police investigation itself. Additionally, he indicated that

his decision to notify the family of Mulrunji’s death was a step he took to reduce a

perception of bias in relation to the investigation of this death in custody. He considered

it appropriate for a higher ranking officer than Hurley to notify the family of Mulrunji’s

death and to reassure the family that the matter would be properly and thoroughly

investigated by a senior officer external to officers from Palm Island.

359. Webber was afforded the opportunity to elaborate upon the rationale behind his

decision to personally notify the family of Mulrunji’s death when interviewed by the IRT.

In that interview, he stated:

Webber: Now on the Friday afternoon as I said I met with the Legal

Services ah at, at Palm Island to inform them of what had

occurred and what we were going to do. I personally met

with members of the, ah the, the family. I met the wife and

informed her of what had occurred. I also went and spoke,

and spoke to his, to his mother. Now I gave them both ah

my condolences and, and I also gave them assurances as

to the future of the investigation and what, what we would

do. And as I mentioned in the Coroner's inquest um I

believe that was a role for a senior officer who was more

senior to Senior Sergeant HURLEY to express the

viewpoint that the Queensland Police Service would

investigate the matter thoroughly and conduct a, an

investigation and that they would ah know what had

occurred.

324 Ibid 748-9 (emphasis added).

239

…

Following on from that and partly from your answer, a

criticism was made by the Acting State Coroner that there

was ah, an inference could be made that HURLEY decided

not to tell the family for some ah, from some other reason

less than honourable. Um but from reading the transcripts

in relation to the inquest you have said basically what

you've just said now that as senior officer you thought it

more appropriate that you speak with the family um as a

result of HURLEY being partly involved in the, the final

moments of life.

Webber: Now I can't be exactly certain, as I say I never spoke to

HURLEY ah on the Friday, on, on the Friday until I arrived

at the island. But I believe I reiterate, I, I indicated um and

I'm not sure how that message got back or, or if it got back

to, to Palm Island but as-assuming it did, it may have been

by, by STROHFELDT but I certainly indicated that ah I was

going to ah, to contact and advise the family. Ah it was also

my responsibility to advise Legal, ah advise Legal Aid ah

which I, which I did and that we were also concerned about

the potential ah for unrest on the island and the situation in

relation to the crime scene where we potentially had the ah

had the family members and everything turning up at the

station etcetera and basically ah confronting ah,

confronting the police there. So um I was more, more than

comfortable that ah Senior Sergeant HURLEY and the

police at Palm Island ah did not and, and shouldn't have ah

advised the ah, the family what was going on until we

arrived.325

360. I believe it was appropriate for Webber to be concerned about the manner in which the

notification of death was undertaken. This is consistent with the RCIADIC

recommendation that the notification of the death of an Aboriginal person should be

given to the family in a sensitive manner respecting the culture and interests of the

persons being notified.

325 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007, Transcript Tape 2 [564]-[570], [605]-[637].

240

361. The circumstances in which this matter arose were unusual and particularly

demanding. The community at Palm Island is remote, resources on this island are

limited and the potential for civil unrest on the island was significant as evidenced by

the subsequent civil disorder. The difficulties that face an investigator in Webber’s

position were acknowledged in comments made by the RCIADIC:

Officers involved in the apprehension, arrest and detention of the deceased

upon discovery of the death are required to secure the scene, notify the

Officer in Charge or their District Officer and record these steps. Of course,

an officer’s first duty is the preservation of life and it may be necessary to

interfere with the death scene to ascertain if anything can be done to

resuscitate the deceased. As one can foresee, problems will arise where

deaths occur in watchhouses on remote communities and single officer

stations where the officer discovering the death is invariably the arresting or

supervising officer and independent senior officers may be many hours away.

This occurred in the Wujal Wujal case where the body of the deceased

remained hanging for some seven hours in the watchhouse cell until the

arrival of the State police. In the circumstances this was understandable

because no one at the scene was sufficiently trained to cope with the

situation. Nevertheless, this caused much concern among the family of the

deceased and the general community.326

362. The comments made by the Commissioner, the Honourable J H Wootten AC QC

should also be considered as he stated:

The way in which news of a death in custody is to be communicated to

relatives, and the openness and frankness with which their inquiries are

answered, are of crucial importance if bereaved families are to come to

accept the facts, and the initial suspicion is to be dissipated instead of left to

fester and spread. The notification to the family must not be treated as some

meaningless ritual, another duty to be ticked off in the appropriate box. It

must have regard to the fact that the notification sets off an agonising

process in which the family has to come to terms with what has happened,

and with whatever implications it has both for their past relations with the

dead person and for the future lives of the survivors…

No one likes communicating painful news, and no one connected with a

death likes facing a suspicious relative. Too often, as in the case of Mark

Revell, the task of giving news of the death to relatives is passed to people

326 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in Queensland (1991) [Ch. 3.1.2] (emphasis added).

241

who know nothing of the facts beyond a sentence or two of instructions.

Often they do not know the relatives and the task is simply a painful chore for

which they are ill-equipped. They can be polite and utter soothing words, but

they cannot answer detailed questions, or vouch for the truth of what they say,

and suspicion starts to grow.327

363. The RCIADIC acknowledges the convergence of competing interests and the

difficulties associated with remote locations. Whilst the undertaking of notification is one

relevant consideration, so is the need to provide other relevant information and the

need to reduce the perception of bias. The criticism of Webber does not give sufficient

consideration to these competing interests.

364. Webber was the person in the best position to reassure the family that the investigation

into the death in custody would be conducted appropriately and without bias. Hurley

had himself been involved in the detention of Mulrunji. It would be entirely inappropriate

for Hurley to deliver the death notice to the family, even setting aside his subsequent

implication in the death. Any other police officer, present on Palm Island, was a

subordinate to Hurley. If any other police officer had notified the deceased’s family of

his death, it is likely that the family would have been concerned with the manner in

which the investigation was to be conducted. The use of a junior officer in these

circumstances does not, in my view, accord proper dignity or respect the culture and

interests of the persons being notified.

365. OPM s 16.24.3 does not specifically describe the manner of compliance. Webber was

required to use his discretion in determining how the objective outlined in the procedure

was to be achieved. The circumstances that confronted Webber were unusual. In

response to those circumstances he determined that he was the appropriate person to

notify Mulrunji’s family of the death.

366. Having carefully considered the relevant issue, in particular the known circumstances

at the time, I am satisfied with the explanation provided by Webber in his interview with

the IRT. Webber was favourably placed to explain to Mulrunji’s family the intricacies of

the investigation that was to be undertaken. He was in a position to immediately

respond to questions raised by the family. It is unfortunate that the next of kin were not

given early advice of the death, and that they were told, when enquiring about the

deceased, to come back at 3 pm. However, it is evident that Webber’s decision to

personally advise the relatives was based on a rationale that is consistent with the

recommendation of the RCIADIC. It is my view that no discipline proceedings should be

327 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) [Pt.4, Ch. 9, Communication with Relatives].

242

instituted nor do I propose to provide managerial guidance to Webber in relation to this

matter.

367. The CMC has recommended that the OPM be amended to add it ‘is not necessary for

the investigating officer to personally notify the next of kin’.328 I note that the decision

made by Webber to personally notify the deceased’s family was made through an

exercise of his judgement. I am not satisfied that this amendment would achieve the

objective of preventing such a decision being made in similar circumstances in the

future. I would suggest that consideration be given to changing Service policy to

indicate that where immediate notification of a deceased family has not occurred, the

relevant Coroner should be consulted and advised why this notification had not been

made. This multi-agency approach would reduce the likelihood of an inappropriate

decision being made in relation to this issue and ensures accountability in this process.

Inspector Mark Williams

368. Williams arrived on Palm Island on the morning 329 of 20 November 2004. 330 He

attended in the role as the representative of the Internal Investigation Branch, Ethical

Standards Command (ESC).

369. An incident requiring the attendance of a member of the Internal Investigation Branch

ESC and the role of this representative is provided in s 1.17 of the OPM, 331 and

provides in part:




investigation.

…

Role of Internal Investigation Branch, Ethical Standards Command

ORDER

The officer representing the Internal Investigation Branch, Ethical Standards

Command is to:

328 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 186. 329 Statement of Detective Senior Sergeant Raymond Joseph Kitching, 19 January 2005, [25]. 330 Statement of Detective Inspector Mark David Williams, 29 November 2004. 331 ‘Fatalities or serious injuries resulting from incidents involving members (Police related incidents)’.

243

(i) on being advised of a police related incident, liaise with the

regional crime coordinator and officers from the Crime and

Misconduct Commission;

(ii) make an immediate assessment of the incident in conjunction with

the regional crime coordinator and Crime and Misconduct

Commission officers; and

(iii) in conjunction with the Crime and Misconduct Commission

officers, overview the investigation and provide appropriate advice

and assistance to the regional crime coordinator.

POLICY

If, in the opinion of the officer representing the Internal Investigation Branch,

Ethical Standards Command, proper investigational or procedural matters are

not being adhered to, or there are matters which may adversely effect an

impartial investigation, that member should confer with the regional crime

coordinator and officers from the Crime and Misconduct Commission in an

endeavour to resolve the issue …

370. The CMC Review was critical of Williams’ conduct during the initial investigation into

the death of Mulrunji. They stated:

Inspector Williams was the ESC officer responsible for overviewing the initial

QPS investigation … He was obliged to know and comply with the

requirements of the OPM and Code of Conduct.

Williams was required to comply with his obligations under the Code of

Conduct to conduct himself and discharge his responsibilities with

professionalism and integrity and to exercise proper diligence, care and

attention and perform his duties to the best of his ability, in a manner that

bears the closest public scrutiny and meets all standards.

Pursuant to section 1.17, as the ESC officer overviewing the investigation,

among other things, Williams was required to liaise and immediately assess

the incident in conjunction with Webber and to provide appropriate advice

and assistance to Webber. Williams was also required, if of the opinion

proper investigational or procedural matters were not being adhered to, or

there were matters which may have adversely affected an impartial

investigation, to confer with Webber and the CMC to endeavour to resolve

the issue.

244

Williams was also equally obliged to comply with the general requirements of

section 1.17 and the other relevant provisions of the OPM that governed the

roles of Webber and Kitching.332

371. The Acting State Coroner raised a number of matters in her findings relating to the

initial investigation of the death of Mulrunji.333 Part 4 of the CMC Review discussed a

number of allegations against the initial investigation distilled from those findings.334

Also included were a number of allegations that were not covered by the IRT or

otherwise complained of in the Coronial Inquest. Specific complaints against the

conduct of Williams were raised in eight of those allegations. Chapter 13 of the CMC

Review also provided a brief summary of those allegations insofar as they related to

Williams.335 I have considered Williams’ involvement to each of these allegations and

have identified a number of issues for consideration. My reasons for coming to the

stated conclusions are set out below.


372. The CMC Review stated:

The Acting State Coroner was concerned that the involvement in the

investigation of officers from Townsville and Palm Island who know Hurley

personally or who were friends with him was inappropriate and undermined

the integrity of the investigation.336

373. In respect of Williams, the CMC Review opined:

Williams did not satisfy himself that the officers involved in the investigation

had no conflict of interest. Once Williams found out the extent to which

Robinson had been involved in the investigation, he did not take any steps to

manage Robinson’s involvement.337

374. The complaint appears to relate principally to two particular findings of the Acting State

Coroner. She found:

332 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 168. 333 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006). 334 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 44, 160. 335 Ibid 168-9. 336 Ibid, 44. 337 Ibid, 169.

245


from Townsville and Palm Island was inappropriate and undermined

the integrity of the investigation.

…


who knew Senior Sergeant Hurley personally, or were friends with

him, was inappropriate and compromised the integrity of the

investigation.338

375. The CMC Review’s complaint does not appear to relate to officers from Townsville

being involved in the investigation. Indeed, the CMC Review acknowledged that the

appointment of officers from Townsville ‘was acceptable’.339 It follows that the complaint

related to the involvement of Robinson. This is consistent with the statements of the

Acting State Coroner:



investigation. It was not the fault of Detective Robinson that this occurred - it



376. Robinson was the Officer in Charge of the Palm Island Criminal Investigation Branch at

the time and declared himself to be a friend of Hurley.341

377. My considerations relevant to Robinson’s involvement will be discussed later in this

report.

378. Williams noted in his procedural fairness submission that:

The CMC have failed to take into account, regarding the involvement of

Robinson, was that when I arrived onto the island and commenced my

inquiry that Robinson did not take part in any of the re-enactments, nor the

drive around of the scene and only the Regional Crime Co-ordinator and the

338 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 31. 339 See, eg, the conclusions on the involvement of Kitching; Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 59. In this context, some criticism was made of Webber but none of Williams. 340 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10 (emphasis added). 341 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 784.

246

Detective Senior Sergeant were involved. Robinson was excluded from the

examination of the major witnesses.342

379. It would appear that Robinson’s role in the investigation was minimal once Williams

arrived. It is not clear whether this occurred by coincidence or design. It would be

difficult for Williams to conclude, without knowing the details of the briefing he received

on his arrival, that Robinson’s involvement might impact adversely on the impartiality of

the investigation. Whether Williams became aware of Robinson’s personal relationship

with Hurley is not apparent on the material.

380. After consideration of the material before me, I could not be satisfied to the requisite

standard that Williams ‘did not take any steps to manage Robinson’s involvement’.

Notwithstanding, given his role as a representative of the ESC, there was an

expectation that he would undertake some inquiries to satisfy himself there was no

conflict of interest by Robinson’s involvement. For reasons already stated, I do not

propose to commence disciplinary proceedings. However, I do consider Williams

should be reminded of his supervisory responsibilities as an ESC officer by way of

managerial guidance.

Allegation 2: Hurley Transporting Investigators

381. The CMC Review observed that:

The Acting State Coroner was concerned that the investigation’s appearance

of impartiality was undermined by Hurley, the officer most likely to be under

investigation, … driving the investigators to the scene of Mulrunji’s arrest the

following day.343

382. No reference was made to this complaint in ch 13 of the CMC Review. Limited criticism

was made of the journey in the discussion in pt 4 other than to say that ‘to minimise any

adverse perception it probably would have been preferable for the investigators or

someone else to have driven the vehicle’.344 Greater concern is expressed over the

putative failure of any officer to record any conversation that might have taken place

during the journey.345

383. Williams was questioned concerning this issue by Mr Callaghan in the inquest before

the Acting State Coroner:

342 Memo of Inspector Mark Williams, 'Response to adverse comments made in the Palm Island Report (Draft) April 2010', undated, 3. 343 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 60. 344 Ibid 68. 345 Ibid.

247

Callaghan: Okay. You got there on the - you got to Palm Island on the

20th of November?

Williams: The Saturday morning.

Callaghan: And the first thing you did was speak to Senior Sergeant

Hurley; is that right?

Williams: No.

Callaghan: What was the first thing you did?

Williams: I was briefed by Inspector Webber and Senior Sergeant

Kitching.

Callaghan: All right. You did speak with Senior Sergeant Hurley? Just

in general terms. I'm not suggesting you conducted an

interview at this time?

Williams: I would've said "Hello" as I would've to all the staff there,

but that would've been about the extent of it.

Callaghan: Well he drove you to the location where the arrest

occurred?

Williams: Yes.

Callaghan: This is immediately following the briefing you had from

Inspector Webber and Sergeant Kitching; the next thing

that happened was that

Williams: It was - it was shortly after that, yeah, I couldn’t tell you

exactly when.

Callaghan: Yes. And you spoke to Senior Sergeant Hurley on this

drive, I take it?

Williams: I didn’t, no. The purpose of the - the purpose on the drive

was to see the actual route taken, where the incidents

occurred. It was, I believe, Senior Sergeant Kitching, for

him to obtain photographic evidence along the way.

Callaghan: Well, Senior Sergeant Hurley was driving, who else was in

the vehicle?

248

Williams: Inspector Webber, myself and the photographer and Senior

Sergeant Kitching.

Callaghan: Now you tell me that you drove in complete silence or was

there conversation?

Williams: Oh, there was conversation of course.

Callaghan: And in the course of that conversation did Senior Sergeant

Hurley give you some overview about [indistinct] occurred?

Williams: He pointed out where the incidents occurred.

Callaghan: All right?

Williams: Otherwise we couldn’t have taken the photos.

Callaghan: Then you conducted the re-enactments; is that the next

thing that occurred?

Williams: Yes.

Callaghan: And by the time you'd finished those you would've had a

pretty good understanding of that which was said to have

occurred?

Williams: At that point, yeah.

Callaghan: Yes. That is to say you'd been to the scene of the arrest,

you'd had - did Senior Sergeant Hurley give you a

description of how the arrest took place?

Williams: In his taped interview he did, yes.

Callaghan: No. And in [indistinct]?

Williams: Not - no, I don’t recall that.

Callaghan: Well you drove to the scene, to D Street?

Williams: Yes.

Callaghan: Yes. Did he, at that stage, tell you anything about the

arrest?

249

Williams: He showed us where the arrest occurred. I think that was

all.

Callaghan: Sorry. Are you still thinking?

Williams: No, I think-----

Callaghan: If you are, then take your time. I just wasn’t sure whether

you were waiting for some question?

Williams: No, I'm sure - that's - he showed us where the arrest

occurred, where the van was parked and where Mr - where

the deceased had come from.

Callaghan: All right. You had an account of his being taken into

custody and taken from the van into the watch house?

Williams: That's correct.

Callaghan: You understood that there was a suggestion that the

deceased, Mulrunji, had punched Senior Sergeant Hurley?

Williams: Mr Bramwell raised that suggestion in his original

statement.

Callaghan: Yes. But by this stage you've - you'd done a re-enactment -

I'm talking about after you finished the re-enactments?

Williams: Oh, okay.

Callaghan: You'd done a re-enactment with Senior Sergeant Hurley

and yourself, hadn't you?

Williams: Yes.

Callaghan: He's told you that?

Williams: Yes.

Callaghan: And you also knew, did you not, that Mulrunji himself had

an observable injury to his head?

Williams: I knew that he had a small mark on the right eye.

Callaghan: Yes. And, of course, that he had died?

250

Williams: Yes.

Callaghan: Well, did you suspect - that is to say, did you have any

suspicion that either Senior Sergeant Hurley or Sergeant

Leafe had caused the death?

Williams: No.

Callaghan: You had no suspicion that that might've been the case?

Williams: Not on the evidence provided at that point, no.

Callaghan: Well, does that mean that Senior Sergeant Hurley was not

a suspect?

Williams: He was part of the inquiry. Until all of the evidence is

gathered and, at that stage, there was no post-mortem

results.

Callaghan: No?

Williams: Um, so I kept an open mind, I wasn’t going to include or

dismiss anything at that point.

Callaghan: Well, were you dismissing him as a suspect, as a cause of

death?

Williams: I'm not saying he was a suspect but he was part of the

investigation that-----

Callaghan: Did you - did you dismiss any suspicion that Senior

Sergeant Hurley might've been the cause of death?

Williams: I didn’t dismiss anything until we had further information.

Callaghan: Right. So you at least allowed yourself that suspicion?

Williams: Not a suspicion, it was matter of what was the evidence at

the time.

Callaghan: All right, I'm not going to quibble with you about that. Can

we at least say that he was person of interest to your

inquiry?

Williams: As was everybody, yes.

251

Callaghan: As was everybody, indeed?

Williams: Of course.

Callaghan: And some say that Leafe, Mr Bangaroo , they were all of

interest to your inquiry; do you agree with that?

Williams: Of course [indistinct].346

384. Williams made further statements on this issue to the IRT during his interview:

Okay. And do you recall ah being with ah, ah HURLEY. ah

WEBBER and ah possibly KITCHING driving to the scene?

Williams: Yes.

Could you tell me about that, how that came about um

maybe what your conversation was on the way and what

the idea of -

Williams: The whole idea -

- going to the scene was?

Williams: - as I recall um the whole idea was to obtain for Joe

KITCHING photographic evidence of where each and every

step had happened along the route from when Mr

was first picked up to when he arrived at

the watchhouse. And of course the only way that you can

possibly for want of a better word, re-enact the route taken

is for the person who took the route to take you through it

and identify the areas that the um incident occurred.

Did you make any notes or tape recordings of the trip to

and from UI?

Williams: No. No. My purpose for going on the trip was just to

familiarise myself of where they'd been. The actual purpose

of the trip was Joe, as I believed as I can recall it now was

for Joe KITCHING and the photographer to take

photographic UI.

346 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 462-4 (emphasis added)

252

At that stage ah Senior Sergeant KITCHING was still the

primary investigator?

Williams: As appointed by the R-C-C.

Yeah. Would you have expected him to take notes or

record conversations at that stage?

Williams: I imagine he would've.347

385. Kitching was interviewed by the IRT in relation to being transported by Hurley to the

scene of Mulrunji’s arrest:

…Um while I think of it, the travel to Dee Street and the

examination of the arrest scene for want of a better term,

you went on that trip or not? Is that Detective Inspector -

Kitching: No I did that.

You did that. Ah Senior Sergeant HURLEY drove?

Kitching: He drove.

Who else was in the vehicle?

Kitching: Ah TIBBEY, senior crime officer and I, I don't even recall

Inspector WEBBER may have been with me I'm not sure. I

think it might have been just myself and TIBBEY.

And HURLEY?

Kitching: HURLEY.

On the 19th?

Kitching: No.

On the -

Kitching: It was the 20th.

Yeah. Ah Detective Inspector WILLIAMS?

347 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 1 [404]-[445] (emphasis added).

253

Kitching: I'm not sure. I don't know what WILLIAMS and WEBBER - I

don't think they come with me on that trip.

Do you remember what time that was?

Kitching: Ah okay 11:20am, this is from my statement, I'm reading

from page five.

Uh huh.

Kitching: Um, ah paragraph number 29, about 11:20am.

I'll just interrupt you there, if it's there that's all I'll need to

do.

Kitching: Yeah.

I've got a copy of UI.

Kitching: It indicates -

- UI.

Kitching: - indicates that there was HURLEY, WEBBER, WILLIAMS

and TIBBEY so we're all there when UI.

Yeah. So in terms of ah that trip and any conversations had

there, do you remember any conversations in the vehicle at

the scene?

Kitching: Certainly. The purpose of that trip with HURLEY was to

identify everything I possibly could surrounding the ah

arrest from the moment that the um come

into the ah custody of police right up until the time of his

death. Um because as I said at that time there was

absolutely no indication what caused this person's death.

And I had to ah try and identify that best that I could all the

circumstances, or all knowledge of UI leading up to that.

That included enquiries I'd made in Palmer Street I believe

where I ended up taking a statement, UI was the only sober

person in the house. Ah I spoke to a number of other

persons there to find out what he had been up to the day

before, ah what his demeanour was, where he was going,

what his actions were.

254

The ah, did you think to tape record any of the

conversations in the vehicle with Senior Sergeant

HURLEY?

Kitching: Not - no not at that time because I'd already ob-obtained a

full version from him on tape. Um I certainly wanted, my

main focus was to get photographs of the scene as it was

at the time while it was fresh in his memory for the purpose

of the Coroner so he could fully understand the

circumstances later on. Um as I said at the time we didn't

know what caused the death.

Uh huh.

Kitching: So I was trying to get as much information as I could in the

ah relatively short period of time that I was there on the

island.

Any notes that you would have taken of those

conversations ah at that time would be in this?

Kitching: Yes. I didn t take actual notes of I don't believe of that.

You just recorded times and places?

Kitching: Yeah. Um I'll just have a look here UI. Yes I've got no notes

between, I've got a note here 11:30am when I spoke to

Margaret HOLMES so it was wasn't Clay, it's Margaret

HOLMES, she was the lady that was too intoxicated to

speak to. So that was whilst I was conducting those

enquiries.

Um in terms of talking to that lady and Edna

COOLBOROUGH, were you tape recording their

conversations initially when you first spoke to them?

Kitching: No. COOLBOROUGH was identified through HURLEY's

interview that she was present when he arrested um

so I made UI I don't know who it was, it may

have been LEAFE or somebody else that went and actually

found Mrs COOLBOROUGH for me.

Yeah.

255

Kitching: Brought her to the police station and then I commenced the

record of interview with her there. I didn't actually go to her

residence.

Yeah. Did you go to anyone's residence, ah you said -

Kitching: Yeah.

- you mentioned a couple of people?

Kitching: UI Street I spoke with UI -

Yeah.

Kitching: - UI residence where I took statement off Gerald UI who

was the only sober person there.

Did you ah electronically record that initially?

Kitching: No. Initially when I went to the station um the persons I

spoke to there were Ronald UI, Michael UI. I got a short

version off them, I've made notes here about what Michael

UI told me. Gerald UI and the intention was to come back

and get more statements off those people when they'd

sobered up.

So your, your practice was to identify possible witnesses,

have a, a, a short discussion with them and then to either

obtain a statement or electronically record an interview with

them?

Kitching: That's right.

Yeah. Are you confident that all possible witnesses were

identified that might have been at the police station that

morning of the initial UI?

Kitching: At that time I certainly was, yes. At that time um and

considering too we had to leave Palm Island that

afternoon.348

348 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 3 [314]-[480] (emphasis added).

256

386. Webber was also interviewed the IRT with respect to being transported to the scene by

Senior Sergeant Hurley:

The Acting State Coroner al-also says that it was

inappropriate for HURLEY to drive yourselves to the scene

of MULRUNJI's arrest, ah arrest in ah Dee Street. What

have you got to say about that?

Webber: Well I, I am complete bemused by that. I'm, I'm not sure

how we ah conduct an investigation without actually taking

people and actually assessing what, what the scene a-

actually is and obviously ah HURLEY was the ah, HURLEY

was the person that could show us exactly where

everything occurred, where the arrest was made etcetera.

No-one else could do that, he simply had to ah –

It was either him or BENGAROO I might add.

Webber: Or BENGAROO who, who was similar, who was similarly

involved and, and obviously um the difficulties in relation to

conversing with ah, with Lloyd BENGAROO ah we'll

probably discuss shortly. But I believe that HURLEY was

the, HURLEY was certainly the best person to show us

where it occurred and what he, what he did and I believe

that the issues in relation to the conduct of that drive if you

like was subsequently ah subsequently canvassed.

Was ah HURLEY tape recorded by KITCHING at this time

as a result of going to the scene and, and recanting or

recounting his story?

Webber Ah I can't recall to tell you the truth. I don't believe he was

but ah I can't recall. I know it took place over, over a period

of you know some, some time.349

387. Kitching indicated in his interview with the IRT that his focus was to obtain photographs

of the scene of the arrest while the matter was still fresh in Hurley’s mind. This is

consistent with the inclusion of police photographer, Tibbey, in the group. Kitching also

indicated that he wanted to identify everything he possibly could from the moment

Mulrunji came into police custody until the time of his death. He does not appear to be

349 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [810]-[843] (emphasis added).

257

referring to obtaining further information from Hurley, since he already had ‘a full

version from him on tape’. Rather, Kitching’s interest was in identifying other potential

witnesses. He said in his IRT interview:

Kitching: All, all those people and, and as well as that ah when,

when we went out and I took the ah scenes of crime officer

with me to photograph the areas where the initial arrest

took place ah where he walked past and the allegations

were that he'd made ah a comment to BENGAROO down

Dee Street um whilst we were in those areas I certainly

made enquiries with the neighbours around there, that's

where I identified I think it was Ed UI, um spoke to her,

pulled her in and given an interview. While I was there I

identified another person by the name of -

Clay.

Kitching: Who sorry?

Clay was it UI?

Kitching: A young girl, she was a young girl but she was very

intoxicated.350

388. Consequently, it is not surprising that Kitching limited himself to recording only the time

and places where photographs were taken and details of potential witnesses. It

appears to me that this was the purpose of him attending the scene of the arrest. It was

not to conduct further interviews with Hurley but rather to document the scene of the

arrest. Williams accompanied Kitching and stated his ‘purpose for going on the trip was

just to familiarise [him]self of where they'd been … [and] for Joe KITCHING and the

photographer to take photograph[s]’. Kitching, Williams, and, to the extent he

comments on this issue, Webber, are entirely consistent in their statements about the

purpose of the travel to the scene. The evidence indicates that photographs were in

fact taken and that Kitching took the opportunity to conduct further enquiries.

389. As noted earlier, the real complaint of the CMC Review appears to relate to the failure

to record any conversations with Hurley that might have taken place. The basis of this

complaint is the CMC Review’s view that ‘Hurley should have been treated as a


258

suspect’.351 I have discussed this unsustainable view elsewhere.352 In particular, I have

noted the distinction between treating the matter as a homicide and suspecting that the

matter is in fact a homicide. In the absence of any apparent cause of death, there does

not appear to have been any basis for forming a suspicion that Mulrunji was the victim

of a homicide. It would not be until some days later, when the post mortem was

conducted, that any significance would be placed upon Hurley’s interaction with

Mulrunji at the Palm Island Police Station.

390. A more cogent argument might be mounted that Hurley was suspected of committing

an unlawful assault based on the interview with Roy Bramwell earlier that morning. The

difficulty with this proposition is that it is clear that the investigators were not

investigating some such assault. They were attempting to ascertain the circumstances

leading up to the death of Mulrunji. Insofar as Bramwell’s allegations were concerned, it

is clear that the investigators did not accept them as credible. There was good reason

for reaching this conclusion. The re-enactment conducted with Bramwell made it

apparent that he could not have seen what he suggested. The most generous

description of his evidence was that he was ‘quite excited ... and there is some

embellishment’.353 By contrast, the Crown Prosecutor at the Hurley trial stated that ‘His

evidence at the inquest bordered on the farcical and statements he’s made after that

made it worse’.354 In any event, it is not appropriate to censure the investigators for

making an assessment that would appear to have been reasonable.

391. I take no great issue that Hurley drove the vehicle that conveyed the investigators to

the scene of the arrest given the circumstances known to the investigators at that time.

I accept that it would have been preferable that Hurley did not drive. I also accept that

this was apt to create an unfavourable perception amongst members of the public on

Palm Island. However, any such unfavourable perception was almost certainly based

on factors that were then unknown to the investigators, such as the cause of death, or

upon factors which are difficult to assess, such as a general animus towards the police.

Hurley knew the way. He was authorised to drive the vehicle. Even if he was a suspect,

a point I do not concede, there was no practical reason why he could not drive. I also

do not see any great distinction turning on whether Hurley drove the vehicle or was a

passenger. Hurley’s presence as a passenger in the vehicle may also give rise to a

351 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 69. 352 See above [85]. 353 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006). I note that the Acting State Coroner accepted his evidence as credible (p.25). 354 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395.

259

similar ‘public perception’. This is simply a no-win situation, especially in a small

community such as Palm Island.

392. Nor do I believe that failing to take Police Liaison Officer Bengaroo to the location of the

arrest is an adverse reflection on the investigation. Bengaroo had already

demonstrated that he was a reticent witness who was disinclined to volunteer

information to the investigators. 355 This is not so much an observation about his

capacity as to his desire. A number of civilian witnesses corroborated Hurley’s version

of the arrest of Mulrunji. Furthermore, Bengaroo had already corroborated Hurley’s

account through his version when he was interviewed. If it was considered necessary,

Bengaroo could later be shown the photographs taken of the scene of the arrest of

Mulrunji and asked to comment upon them, as the CMC investigators chose to do.356

393. After consideration of all relevant material relating to this matter, I am not satisfied that

disciplinary or managerial action is warranted against Williams.

Allegation 4: Discussions between Witnesses

394. Allegation 4 centred on the Acting State Coroner’s criticism that Hurley, Leafe and

Bengaroo discussed Mulrunji’s death prior to the arrival of the investigators. The Acting

State Coroner commented:

I have referred to various occasions when the investigation was

compromised due to these compounding errors of lack of judgment. Senior

Sergeant Hurley clearly had the opportunity and did discuss the events under

investigation with other witnesses, including Sergeant Leafe and Liaison

Officer Bengaroo.357

395. She later concluded:

The discussion by Senior Sergeant Hurley of the death of Mulrunji with

Sergeant Leafe and Police Liaison Officer Bengaroo prior to being

interviewed was inappropriate and contrary to the OPM. It had the potential to

undermine the integrity of the investigation and undermine the appearance of


396. In the context of Williams’ complicity, the CMC Review complained that:

355 Cf Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5. 356 Inspector Ken Webster, Interview with Lloyd Chester Bengaroo, (Townsville Regional Office, 8 December 2004), [335]-[471]. 357 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 358 Ibid 31.

260

Williams did not make any inquiries about any conversation between Hurley,

Leafe and the PLO before the investigation team arrived on the island and

failed to clarify with Hurley exactly what was discussed when Hurley

mentioned on two occasions in his re-enactment interview, that he’d

discussed the matter with other witnesses. Further he failed to give Hurley a

direction not to discuss the matter once he became aware that Hurley has

discussed the matter with other witnesses.359

397. Both the Acting State Coroner and CMC Review appear to allude to OPM s 1.17 which

provides, inter alia, that:

The first response officers, regional duty officers and regional crime

coordinators should ensure that the integrity of independent versions of

members directly involved and members who are witnesses to a police

related incident is preserved as far as practicable.

398. OPM s 1.17 does not refer to the responsibility of an officer from ESC. Nevertheless, I

find this obligation extends to encompass the ESC representative who is responsible

for overviewing the investigation. This conclusion should not be taken to suggest that

the responsibility of the RCC, who retains overall responsibility for the investigation, is

in any way abrogated.

399. There are three components to this issue which are inextricably interwoven. Firstly, was

Williams aware that conversations had taken place between Hurley, Leafe and

Bengaroo prior to being interviewed by the investigation team? Secondly, if he was

aware of this conversation, why did he fail to clarify what exactly was discussed?

Thirdly, irrespective of whether he was aware of the conversation, was he obliged to

give any sort of direction to the witnesses? The CMC Review accepted the first issue

was proven and developed their complaint360 out of the perceived failings relating to the

second and third issues.

400. I have reviewed the evidence provided by Williams before the Acting State Coroner and

a record of interview conducted by members of the IRT. It is clear on the evidence that

conversations did take place between the witnesses prior to the arrival of investigators

and, in all likelihood, at other times after their initial interviews. Hurley answered

questions posed by Mr Hunyor in the inquest before the Acting State Coroner, during

359 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 169. 360 Ibid 88.

261

which he admitted speaking to both Leafe and PLO Bengaroo and viewing the video

recording prior to being interviewed by the investigation team.361

401. Williams’ own responses are not so clear. When questioned by the IRT he said:

Did you think at the time, and this is a question of the

benefit of hindsight I suppose but um should you have

asked questions about when they had spoken or what they

had said?

Williams To be honest with you I don't - even though it was said I

don't particularly recall it. Um we were doing re-enactments

whereby we were trying to gain as much information as

possible. We were at the time you're thinking on your feet

and you're going through all these matters. Um because I

never conducted any of the invest - I do some enquiries but

I never conducted an investigation because I never

finalised the investigation, it was taken off us. Um those

matters would probably have been further explored if I

had've remained um as part of the investigation or had've

been asked about UI. Ah when the C-M-C took over they

basically took the material um and ah, and they, they UI by

the C-M-C.362

402. When examined by Mr Hunyor in the inquest before the Acting State Coroner, Williams

states:

Hunyor: … And in response to a question from you, you say, "Okay,

but when you were on the ground who could you see

around at that point?" And Senior Sergeant Hurley says,

"Ah, nobody, to tell you the truth. Oh, I didn’t - only from

hindsight and from speaking to the people, found out that

Lloyd was the one that opened the door," he goes on. So

that suggests that Senior Sergeant Hurley was - had

spoken to a number of people in relation to this incident;

doesn’t it?—

Williams: Perhaps, yes.

361 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 1277-8. 362 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 1 [551]-[569].

262

Mr. Hunyor: Okay. And you didn’t do anything in relation to that?—

Williams: No.363

403. Hurley acknowledged discussing the incident with Leafe and, perhaps, Bengaroo

during his video re-enactment.364 There is no indication that these conversations were

raised in the briefing given to Williams or that he otherwise had become aware that

these conversations had taken place prior to the re-enactments.

404. Williams’ statement that he did ‘not particularly recall’ the conversation is capable of

more than one meaning. It may be that he is suggesting he did not hear, or at least, did

not comprehend the significance of the statement at the time. Alternatively, and

perhaps more likely, is that he did not recall the particular statement when interviewed

almost three years later. Regardless of whether Williams admits to hearing or

comprehending the conversation, the statement was made and Williams had the

opportunity to not only hear it but also clarify what was discussed. Given the purpose of

the re-enactment, I think it is improbable that Williams did not hear or comprehend what

was said. The better view, and the one that I find to be the case, is that Williams did

hear and comprehend the statement.

405. Once he did become aware of them, my view is that he should have clarified what

conversations had taken place. I do not necessarily suggest that this should have taken

place during the re-enactment, since it may well have detracted from that exercise.

However, I would have expected the matter to be clarified, if not during the re-

enactment, then soon thereafter. It may have been, as Williams suggests, a matter that

would have been picked up later in the investigation had the CMC not assumed control.

Perhaps this was so, though the possibility was not realised. I note that the CMC did

not seek to clarify the matter when they conducted their first interview with Hurley on 8

December 2004 365 though they appear to have addressed it with Leafe. 366

Nevertheless, in my view, the matter should have been addressed at some earlier time.

406. The re-enactment interview between Williams, Webber and Hurley commenced at

11.53am on 20 November. At that time, Williams intended to interview Bengaroo and

Leafe. I make this assumption based on the fact that further interviews followed

immediately thereafter. These interviews commenced at 12.10pm and 12.50pm

363 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 484. 364 Inspector Warren Webber, Re-enactment Interview with Senior Sergeant Christopher Hurley, (Palm Island Police Station, 20 November 2004). 365 Ibid 366 Detective Inspector Ken Webster, Interview with Sergeant Michael Leafe (Townsville Regional Police Office, 8 December 2004).

263

respectively. Williams left the island shortly thereafter. 367 I have not identified any

evidence to suggest why the investigators left when they did. I appreciate

transportation was limited and it is probable that the departure time was self-imposed to

coincide with available transport. However, I consider it would have been prudent to

canvas with the witnesses the discussions that had taken place prior to departing the

island, even if that meant delaying their departure.

407. In my view, identifying the conversations that had taken place and the scope of those

conversations fell within the general considerations of ensuring ‘the integrity of

independent versions’. I note that the IRT suggested the real focus of the policy ‘in

terms of ethical and professional conduct, is that officers should openly admit and not

conceal the fact that they have discussed a matter’.368 I accept that this is a practical

approach that realistically acknowledges an embargo on these types of discussions is

unworkable. However, I would think a corollary of this approach is that the content of

the conversation should be established. In my view, Williams should have established

the content of the conversations between Hurley, Leafe and Bengaroo.

408. It does not follow from a conclusion that Williams should have established the content

of conversations that there was also an obligation to give a direction to those witnesses

not to further discuss the matter. As the CMC Review accepted, there was ‘no

requirement for any of the individual officers to give a direction to the witnesses’.369 At

its highest, the CMC Review suggest that providing such advice might have been

‘prudent’.370 I note that, despite being aware of the death in custody, the CMC also did

not itself choose to provide such advice to Hurley, Leafe and Bengaroo. I accept that

such a direction would have been prudent. I do not accept that the failure to do so

should incur any disciplinary consequence.

409. I have given consideration to the consequences for Williams’ failure to ascertain the

content of the conversations between Hurley, Leafe and Bengaroo. I have also

considered the seriousness of this allegation and the potential of the alleged conduct to

adversely affect the perception of an impartial investigation.

410. After consideration of the material and having regard to my earlier comments, I do not

intend to commence disciplinary proceedings. However, I am of the view that Williams

should be reminded of his obligations by way of managerial guidance.

367 Statement of Detective Inspector Mark David Williams, 29 November 2004, 2. 368 Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 23; see Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 88. 369 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 86. 370 Ibid.

264

Allegation 5: Off the Record Discussions between Webber, Williams and Hurley


Even after the Ethical Standards Officers (Webber and Williams) took over

the investigation, they were party to an “off the record” discussion with Senior

Sergeant Hurley and Officers Robinson and Kitching about discrepancies in

time. But this was not documented as part of the investigation by those

officers; it only came to light incidentally through Senior Sergeant Hurley’s

answers to the CMC officer, Detective Inspector Webster.371

412. The CMC Review took issue with the discussions concerning the times on the

surveillance video recorder in the Palm Island watch-house. They said:

In terms of official police procedure, the OPM at the time provided that

members who may be required to give evidence of conversations, events or

occurrences should compile relevant notes at the time of the conversation,

event or occurrence or as soon as practicable thereafter.372

413. The footnote to this passage suggests the particular OPM upon which the allegation

depends is s 2.13.8. That section provided:

Members who may be required to give evidence of conversations, events or

occurrences should compile relevant notes at a time during the conversation,

event or occurrence or as soon as practicable thereafter while details are still

fresh in their mind.

This practice ensures any notes made are accurate and when subsequently

referred to, may be properly used to revive a member's memory.

Admissibility and acceptance of evidence is based on that evidence being

relevant to the issues in question and, generally, the witness having an

independent recollection of the matters stated.

Witnesses may revive their recollection by reference to notes or documents

made at the time or shortly after the event to which they refer. In such cases,

witnesses must have either made the notes themselves, or adopted notes

made by another person, at a time when the events were still fresh in their

mind.

371 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 372 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 90.

265

POLICY





those notes.

Members should not prepare a corroborator's statement or alternatively,

supply a statement to another member for copying or duplicating purposes.

Members should also avoid discussing in detail the evidence they are going

to give with other members or witnesses involved in the case. Generally,

these practices may be considered to be inappropriate and may affect the

weight of the evidence to be given.

414. The specific complaint made by the CMC Review is that:

Neither the original investigators nor the IRT pay sufficient attention to the

OPM requirement for police to make some appropriate record of

conversations about which they may be required to give evidence. Given the

importance of video footage to any investigation, any discussion with a

witness about time discrepancies should have been recorded, in the interests

of accuracy about the timing of events, any potential concern about the

integrity of the evidence, and overall thoroughness and impartiality (and

perception of impartiality) in the investigation …

In dismissing this issue as ‘merely administrative’, the investigators seem to

assume that their failure to record discussions about the time discrepancy in

the video footage was obviously irrelevant to the investigation into Mulrunji’s

death. This is an offhand attitude towards a basic OPM requirement, and

disregards the critical role that video footage plays in many police

investigations.373

415. The particular conversation in question was referred to by Hurley in his interview with

the CMC:

Webster: Ah you might be able to help to ah assist me with an

explanation um, the tapes commence at ah 10:18 am, um

have you, you seen the ah, the tapes?

373 Ibid 93-4.

266

Hurley: I have.

Webster: And um, are you aware there is a dis -discrepancy in time?

Hurley: I bought that to the ah notice of ah Detective Inspector

WEBBER, Detective Inspector WILLIAMS, Senior ah

Detective Senior Sergeant um ….. KITCHING ah and

Detective Sergeant ROBINSON on the Saturday

Webster: Right.

Hurley: Um, I asked permission to view the tapes. We viewed them

all together um whilst we were in the day room in the police

station and ah it was ah noted that the tapes were some 15

to 20 minutes out and ah the only explanation for that is the

um, a, the power at ah Palm Island is unreliable and it

actually ah makes your clock go slower um. When I’m at

home to go to work I set my mobile phone as an alarm, I

don’t rely on the clock um it looses time. Ah that’s the only

explanation I can do for that. Had, had I noticed that um

obviously before the incident took place, I could have

adjusted it by the um, ah the clock on the facilities but ah

that was the that was the situation with that

Webster: And um, that incident of ah you sitting down and ah looking

at and working out the 15 minute variance um, these other

officers were across that situation?

Hurley: Ah, I’m sorry sir

Webster: Inspector WEBBER and ah WILLIAMS they were aware …

Hurley: Yes, I made …..

Webster: …. of this

Hurley: I made them aware of that time that, um, ah that wasn’t

recorded that was um off the record on the um on the

Saturday after we had ah, um done the re-enactments and

….

Webster: OK, so…those officers would be in a position to ah provide

that information by the way of a statement?

267

Hurley: Yes.374

416. Kitching prepared a statement dated 19 January 2005 where he indicated:

I then viewed the Watchhouse security footage recorded of the deceased and

at 3.45pm I took possession of the video tape. At that time I observed that the

time set on the recording equipment was approximately 15 minutes slower in

comparison to real time.375

417. Kitching provided some elaboration of the conversation itself during his interview with

the IRT:




Kitching: Yes I do.



Kitching: Well to start with the ah, the issues raised by the Acting


















374 Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Transcript Tape 2 [419]-[461]. 375 Statement of Detective Senior Sergeant Raymond Joseph Kitching, 19 January 2005, [11].

268







Kitching: As I said ah in my notebook um I just put here took






Kitching: Well it was ah it was during the, the time that I watched the












Kitching: HURLEY was there because I asked him to show me the

C-C-T-V footage. He's the officer in charge of the station;











269













Kitching: Well we're looking at the time of, of a cause of death. Okay















Kitching: That's right, yes. That particular conversation was yes. I





okay where he was lodged um and issues like that.376

418. Williams’ own account to the IRT was that:

376 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 2 [929]-[1044]

270

Williams: - regarding the, the watchhouse security tape, I wanted to

see the tape. I asked for the tape, they put the tape on for

me and the conversation was you will find the tape runs, it

was either ten minutes fast or ten minutes slow. That's it,

that was the extent of the conversation, no more, no less.

And, and the conversation was that you elicited information

as to what was going on, what was, what, what was the

difference?

Williams: The - no that, the, the information was offered to me that

the tape runs either ten minutes fast or ten minutes slow.

Okay. Yes. So that was the off-the-record discussion -

Williams: That's the off-the-record …discussion.377

419. The use of the term ‘off the record’ was unfortunate. The term appears to carry some

pejorative implication which is not warranted in the context of the actual discussion. It

appears that the term was used by Hurley during his interview with the CMC 378 to

indicate that the conversation did not take place during the formal interview or re-

enactment. The evidence does not suggest that the term off the record was intended to

indicate some decision to conceal the conversation or otherwise keep it secret.

420. The CMC Review’s complaint fails to properly consider the context of this information

as evidence. Whether the time on the video was accurate or not, the explanation for

any inaccuracy was not evidence that could have been given by any of the

investigators. The officers could only give evidence of their own observations. This

might include the time they observed on the video tape, though the video tape would

likely speak for itself. It might go so far as to detail a time discrepancy apparent on the

video recorder when compared to the actual time. However, they could have no

firsthand knowledge of the reason for the inaccuracy. This information necessarily was

told to them by some other person. It was apparent to the investigators, based upon

what Hurley had already disclosed, that the time on the video did not correspond with

the real time of recordings. Consequently, they ascertained why. It was undoubtedly

important for the investigators to make this inquiry to understand the video properly.

However, none of the witnesses, including Williams, would ordinarily be able or

expected to give evidence of the conversation. The conversation was clearly hearsay.

377 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 1 [470]-[491]. 378 Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Transcript Tape 2 [455]-[456].

271

It detailed the reason for the discrepancy, a matter outside the knowledge of the

investigators based on their own observations. In the normal course of events, if

evidence of the reason for the discrepency was necessary, it would come from Hurley

or some other person with first hand knowledge of the reason. Even in a trial against

Hurley, the conversation could only be given by the investigators as some exception to

the rule against hearsay. 379 Properly understood, the information was of some

importance, not the precise conversation. Many conversations were not recorded

during the investigation about which no complaint is made and rightly so. These include

conversations with the hospital staff, with witnesses at the scene, with ambulance staff

and so forth. In each case the witnesses themselves would have to give the evidence,

not the investigators. In those instances, as with this one, it was the information that

was of importance, not the conversation.

421. Two propositions seem to underpin this particular complaint. The first is the

unwarranted excitement generated by the use of the term ‘off the record’. 380 The

second is the singular importance upon which the CMC Review and others have

attached to interaction with Hurley. The CMC Review suggested that obligations arose

when ‘engaging in discussion with Hurley or any other witness about an issue relevant

to the investigation’. 381 Yet no complaint is made about discussions ‘with any other

witness’. The reality is that the CMC Review and some others believe Hurley should

have been treated as a suspect382 and not as any other witness. The view, as I have

discussed elsewhere, is untenable. 383 Moreover, there was no reason for the

investigators to think that the conversation itself might be of particular importance and

thus the precise words should be recorded, even if Hurley was a suspect.

422. The CMC Review suggested reliance on OPM s 2.13.8 to create an obligation on the

investigators.384 However, the statement they rely upon is advisory. It does not form

part of an order, policy or procedure. Section 2.13.8 states:





those notes.

379 No such exception is suggested. 380 See above, [419]. 381 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 90. 382 Cf ibid 77. 383 See above [85]. 384 Ibid 90.

272


recollection. Consequently, it was permissible for Kitching to prepare his statement

without writing prior notes based on his own independent observations. Kitching

identified the time discrepancy independently and attested to his own observation. By

contrast, the evidence does not suggest that Williams made any independent

observation of the time discrepancy that, as from his own observation, he might have

recorded.385 The importance of the video and a proper understanding of it, rather than

the conversation, were reflected in Williams’ procedural fairness submission:

I maintain the brief, off the record conversation regarding the ten minute time

discrepancy on the watchhouse video did not have any bearing whatsoever

on the investigation. What is on the video recording is what is on the video

recording, nothing is going to change that and it does not damage the


424. Having considered the requirements of OPM 2.13.8, I find the issue of time discrepancy

was adequately addressed in the evidence of Hurley and Kitching for the Coroner to

consider the integrity of the video recording. Hurley had firsthand knowledge of the

electricity supply on Palm Island so as to be able to explain the discrepancy in time and

Kitching made his own independent observation of the equipment. Williams, in my

view, had no obligation to record a conversation with Hurley that the time on the video

was inaccurate, when Hurley could give this evidence as a fact known to him.

425. I am not satisfied, based on the material before me, that Williams failed to meet the

obligations of OPM 2.13.8. Accordingly, I do not intend to commence disciplinary action

or give managerial guidance against Williams in relation to this matter.

Allegation 6: Lack of Vigour in Questioning the PLO

426. The third issue involving the conduct of Williams identified by the CMC Review involves

the questioning of the PLO Bengaroo:

Section 2.13.1 required comprehensive statements to be taken from

witnesses as soon as practicable. Having involved himself directly in the

investigation, Williams failed to ensure that all relevant lines of questioning

were pursued with the PLO and to obtain a full statement from the PLO as

385 Cf Statement of Detective Inspector Mark David Williams, 29 November 2004. 386 Memo of Inspector Mark Williams, 'Response to adverse comments made in the Palm Island Report (Draft) April 2010', undated, 3.

273

soon as practicable. He took no steps to address the communication problem

with the PLO.387

427. Some elaboration was provided in the Executive Summary of the CMC Review:

The Acting State Coroner was critical of the failure of both Webber and

Williams to ask the PLO to clarify what he meant by a particular statement

during a re-enactment interview. At the time the investigators were aware that

Roy Bramwell had alleged he saw Hurley assault Mulrunji after the fall in the

watch-house.

During the interview, Webber asked the PLO whether he was watching what

happened after Hurley and Mulrunji fell in the watch-house. The PLO said he

wasn’t. Williams asked the PLO “What were you doing? What, how come you

were standing there?” to which the PLO replied:

I can’t remember. I just stood there because I was thinking, um, if I

see something I might get into trouble myself or something. The

family might harass me or something you know.

The CMC considers that the whole point of conducting the re-enactment

interviews seems to have been to gather evidence in relation to Roy

Bramwell’s allegation of assault and about what occurred when Hurley

brought Mulrunji into the police station. The PLO’s answer related to that

central point, yet neither Webber nor Williams pursued it. It is concerning,

particularly if they felt the PLO was difficult to interview, that Webber and

Williams did not take steps to ensure that they were able to elicit information

from the PLO and understand what he had said.388

428. The CMC Review suggests the video re-enactment with Bengaroo had two purposes:

‘to gather evidence in relation to Roy Bramwell’s allegation of assault and about what

occurred when Hurley brought Mulrunji into the police station’. Williams stated that the

purpose of conducting the interview was, ‘to elicit the information from [Bengaroo] as to

what he saw that day’,389 a more general intention than that suggested by the CMC

Review.

429. Williams also provides his response to the CMC Review’s allegations with respect to

this matter in his procedural fairness submission:

387 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 169. 388 Ibid xx. 389 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 453-459.

274

It is abhorrent the CMC provide an opinion as to my state of mind from a

video recording of my interview with the PLO. What the CMC view as being

inattentive may in fact have been purposeful concentration. It is both bias and

factually unsound to provide such an opinion and the comments should be

removed from the report.390

430. Williams was examined at some length in the inquest before the Acting State Coroner. I

have extracted part of the examination391 by Mr Martin:

Martin: Can you stop it there, please. Now, you’ve heard that

passage there from Mr Bengaroo saying words to the

effect, "Because if I saw something I might get into trouble

myself and [indistinct] might," I don’t know whether the

word is harass or arrest me. What did you hear?--

Williams: I think it’s harass.

Martin: Harass. Is that what you heard, something like, "Because if

I see something I might get into trouble myself."?—

Williams: I heard something - it wouldn’t have been as clear as how it

comes over on that video-recording.

Martin: Well, you're standing right beside him there. Did you hear

those words at the time?—

Williams: I - I remember hearing them, yes.

Martin: Right. Well, what did Mr Bengaroo mean by that?—

Williams: Well, I got the impression that he was concerned as to

what he was going to say harassment in the family.

Martin: But harassment about what?—

Williams: I don’t know.

Martin: Well, did you ask him the question?—

390 Memo of Inspector Mark Williams, ‘Response to adverse comments made in the Palm Island Report (Draft), April 2010, undated, 3. 391 Mr Martin described the questioning as intense - Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 719.

275

Williams: No. I was concerned that if I pursued that, that he may not

say anything. He was a very difficult person to interview.

Martin: Mr Bengaroo was a difficult person?—

Williams: He was difficult, yes. To get the information from him was

not particularly easy and I had difficulty understanding him

as well.

Martin: Yes. You see, you're an Inspector of police, part of the

internal affairs; is that correct?—

Williams: That's right.

Martin: The Internal Investigation Branch and you're investigating a

death in custody; the police liaison officer says to you and

another Inspector of police, "That he stayed at the door

there because if I saw something I might get into trouble

myself." Did you not want to know what he could possibly

mean by that? I mean you already knew from Mr

Bramwell's re-enactment that there was an allegation that

Senior Sergeant Hurley had assaulted the deceased and

there's the police liaison officer saying that he was staying

there because if he saw something he might get into

trouble himself?—

Williams: No, he was concerned about the family harassing him,

that’s how I took it to be. That his involvement in this whole

incident caused him concern that the family was going to

harass him.

Martin: Inspector, with the greatest of respect, Mr Bengaroo is

clearly telling you that he stayed there when the police

officers dragged Mulrunji away, he deliberately stayed

there because if he saw something he might get into

trouble. What was he worried about [indistinct]?—

Williams: That’s what we were trying to find out. We-----

Martin: Well why didn’t you ask him?—

276

Williams: No, no, no. You're not listening to my - my answer. We

were trying to elicit the information from him as to what he

saw that day.

Martin: That's right?—

Williams: He raised a concern, and I must admit it wasn’t as clear as

that as you can hear it on the video. When you listen to the

audio-tape that I was holding at the time, it is barely audible

what he says.

Martin: Well, that may be on the audio-tape but you were standing

right beside him?—

Williams: I'm also holding the tape right there as well.

Martin: Yes. But you're not listening to it at the time?—

Williams: But he is very difficult to understand. I know that’s -

sorry-----

MR BROWN: Excuse me, your Honour?

D/STATE

CORONER: Mr Brown?

MR BROWN: If I could just raise this matter to the point of fairness.

Perhaps my learned friend could just read out the relevant

passage. It's been referred to earlier on but as a matter of

fairness to this witness and perhaps later on, read out the

whole of that passage. I know there seems to be a gap

there but it might give some additional benefit.

Martin: Well, Mr Williams, you might read out the answer as it's

recorded in the transcript?—

Williams: My answer, as we go on?

Martin: No, Mr Bengaroo's answer?—

Williams: "I can't remember, I just stood here because I was thinking,

um, if I see something I might get into trouble myself or

277

something. The family might harass me or something, you

know."

Martin: Well, is that what you heard him say at the time?—

Williams: Not as clearly as that but yes, that’s what he would have

said.

Martin: Okay?—

Williams: Because that’s what's recorded.

Martin: All right. Well, if you heard it said, why did you not ask him

a question about what he meant by that?—

Williams: We followed on with the interview to get the information

from him. My concern was if I started to question him about

the family harassing him that he may not say anything.

Martin: But the fact-----?—

Williams: He was a very nervous man at the time. I didn’t want to

make that any worse than what it was.

Martin: The first part of his answer, can you just read it out again

please?—

Williams: "'Cause I can't remember".

Martin: Keep going?—

Williams: "I just stood there - I just stood here because I was

thinking, um, if I see something I might get into trouble

myself"-----

Martin: Just hold it there please. "Because if I see something, I

might get into trouble myself." Were you not curious as to

what he meant by those words?—

Williams: No, but he goes on to talk about the family harassing him,

so he's concerned about the family harassing him.

Martin: Yes. As a result of seeing something himself that may get

him into trouble?—

278

Williams: Well he's an aboriginal here on the island, living on the

island, he's involved in a death in custody and his concern

is the family might harass him.

Martin: Yes. But he's talking about standing at the door at the time

police take away the deceased towards the watch-house,

and he's saying to you investigators, that I stood there

because I might see something, I might get into trouble.?—

Williams: Regarding the family.

Martin: Well from the family or whatever. But what might he see?

What could he possibly see - what would occur to you at

the time as to what he might possibly see that could get

him into trouble. This is at the time that the police are

taking away the deceased towards the watch-house?—

Williams: That’s correct.

Martin: What, you being an investigator of so many years

experience, what could possibly be of concern to him as to

what he might see at that time?—

Williams: I can't tell you what was a concern to him at that time, what

I wanted to do was get his information. What he saw, what

he heard that day, to get the truth out of him as to what he

saw and what went on. And that's what we continued to do.

My greatest concern was that he was nervous. He'd been

through a fairly emotional incident and I want to get the

information from him, I didn't want him to stop talking to us.

Martin: Inspector, if Lloyd Bengaroo was staying at the door

because he was worried about something that he might

see, would you not, as an investigator, think that there are

two possibilities; one is that he's already seen something

untoward and that something more might happen; or

alternatively, he has seen something in the past that would

suggest to him that something may happen. Can you think

of any other possibilities as a result of what he said to

you?—

Williams: He just didn't want to be involved in the incident.

279

Martin: Inspector, why didn't you ask him to clarify what he meant

by those words?—

Williams: I've answered that already. I didn't want him to stop talking

to us. I didn't want to go into the family harassment issue

with him.

Martin: The family harassment issue was connected with his

concern that he might see something. Wouldn't you be

interested in knowing what he was worried about seeing?—

Williams: Mr Bengaroo throughout his whole interview, had trouble

remembering, he was very nervous. He just did not want to

be there, I don't think.

Martin: Could you answer my question please?—

Williams: I am answering your question.

Martin: No, with respect you're not. It's unresponsive. Would you

not be interested in knowing why he was worried as to what

he might see, so much so that he stayed at the door of the

police station?—

Williams: But he didn't stay at the door of the police station.

Martin: He told you that he did. He stayed there because he might

see something and get in trouble and be harassed by the

family?—

Williams: And in continuing questioning he says how he goes into the

hallway and follows them down the hall.

Martin: He follows him down the hall. Did you not want to know

what he was concerned about seeing?—

Williams: Yes, and that's why we continued on questioning him, as to

what happened in the hallway and what he saw.

Martin: Inspector, neither you nor Mr Webber asked one question

in clarification of what those words meant by Mr Bengaroo,

is that correct?—

280

Williams: I think we did in the continuing question as to what he saw.

We continued on with what he saw that day.

Martin: Could you continue to play the tape?

TAPE PLAYED

Martin: Could you take it back to the passage that we state? Thank

you. Hold it there please. Inspector, do you agree with me

that the first response that we've been discussing, relates

to why he stayed at the door when Mulrunji was dragged

up the hallway?—

Williams: No, it's when he's lying on the ground.

Martin: No. Have a look. "So he dragged him from behind, okay,

and what did you do as they were dragging him down the

hallway?" Answer; "I stood right here. You stood there?

Yeah. Were you watching?"?—

Williams: Oh sorry, you've gone back again, have you?

Martin: You're having difficulty following this Inspector, are you?—

Williams: No I'm not having any difficulty. You're jumping forward and

back. We went forward then where you talk about bear-

hugging him on the ground.

Martin: Do you agree with me that his responses about standing at

the doorway, related to why he stood there when Mulrunji

was being dragged down the hallway?—

Williams: Those responses were there, yes they are.

Martin: Yes. In response to a question, "What, how come you were

standing there?" And he said, "Because if I see something I

might get into trouble myself." Now after that, after he says

that, you say "Okay, right, okay." Inspector Webber then

goes back to asking what he saw immediately at the

doorway, is that correct?—

Williams: Yes, while they were on the ground.

281

Martin: Nobody asks the question as to why Mr Bengaroo would be

worrying so that he would stay at the doorway when

Mulrunji was dragged away, is that correct?—


Martin: That's correct. And you say that you didn't ask the question

because you didn't want to go into why the family might

harass, is that your response?—

Williams: Yeah. I didn't want him to become any more nervous for us,

to stop talking to us. We did pursue it, I think if you go down

to the bottom of the page, that's when they went down at

the watch-house area, he states that he followed them

down. It follows on from there.

Martin: Well, he says, "Well, I stood here and they took

there and they must have just dragged him". That's what he

says. He goes back to saying he stood there, where he

was?-- "I just walked right here. I saw them just take

from here. The distance here. So you followed

them? Yes. As they've gone through, what did you see,

how did they take him into the watch-house. Well I stood

here and they took there and they dragged him."

"I stood here." I stood here, it doesn't suggest he went into

the watch-house following them, does it?—

Williams: Depends on where he is when he's seeing them.

Martin: Well, have a look at the tape. Let's play it.

TAPE PLAYED

Martin: Thank you. Do you agree with me that he says, "I stood

here."?—

Williams: But then he steps into the station.

Martin: Yes and says, "I stood here", standing where he was, is

that correct?—

Williams: Inside the station.

Martin: Yes. Just inside the door?—

282

Williams: It's only a tiny little area.

Martin: Yes, but Inspector, to get into the watch-house, you have to

go through another door, go past a garage area and into

the cells, is that right?—

Williams: I don't think so. It's just down a very narrow hallway, a few

steps and into the right.

Martin: Through a door?—

Williams: Through a doorway, yes.

Martin: Yes. Well unless you go down to that doorway, you can't

see through, can you?—

Williams: Not into the actual watch-house, no.

Martin: No. Well doesn't the man say there, "I stood here."?—

Williams: Yes.

Martin: It doesn't suggest that he went down to be able to see into

the watch-house, does it?—

Williams: Well he suggests walking down the hallway.

Martin: He suggests walking down the hallway?—

Williams: Yes, he said that just as you stopped the tape. Can you

replay it please.

TAPE PLAYED

Williams: Oh, perhaps I'm wrong there.

Martin: He said followed it?—

Williams: Followed him.

Martin: Yes. Meaning with his eyes perhaps, as he's standing

there?—

Williams: Perhaps.

Martin: Do you agree with that?—

283

Williams: Yes.

Martin: Thank you Inspector.392

431. This questioning demonstrated Williams’ most comprehensive account of his

understanding of the impugned passage of the re-enactment. The passage taken from

the re-enactment with Bengaroo is discussed in isolation. The following responses,

which in my view would have placed the comments into context, were not put to

Williams:

Bengaroo I just stood here because I was thinking, um, if I see

something I might get into trouble myself or

something…The family might harass me or something, you

know.

Williams: Oh okay

Webber: While, while was on the ground did you see

Senior Sergeant HURLEY do anything?

Bengaroo: Um he scruffed him – like he sort of a bear hugged him …

just has his arm around his shoulder – around this part

here.

Williams: To hold him?

Bengaroo: Yeah

Williams: Okay. And you still had the other chap in ah, in the back of

the van?

Bengaroo: We did, yeah.

Williams: Okay.

Webber: You see Senior Sergeant HURLEY punch (ui)?

Bengaroo: No I didn’t No.

Williams: Um so when they went down into the watch-house area,

where did you – what did you do then?

392 Ibid 453-9.

284

Bengaroo: I just walked right here. I saw them just take ah

from here – the distance here.

Williams: So you saw, so basically you sort of followed them …

Bengaroo: Yeah.

Williams: … as they’ve gone through. And what did you see, how did

they take him into the watch-house?

Bengaroo: Well I stood here and they took there and they

dragged him – yeah.

Williams: Just dragged him. And what sort of state was in?

You know, when you arrested him and ah …

Bengaroo: He was in a drunken state.

Williams: Right.393

432. Immediately after Bengaroo’s response, Webber asked whether Bengaroo had seen

Hurley do anything and then, more directly, whether he had seen Hurley punch

Mulrunji. The CMC Review attached no importance to these questions, 394 instead

suggesting that Webber and Williams chose not to pursue the Bramwell allegations.395

Clearly, this was not the case. These questions were directed at the very issue that had

triggered the re-enactment, that is, the allegations raised by Bramwell earlier that

morning.396 It is a fallacy to suggest that the investigators did not pursue the issue of

what Bengaroo might have seen. Neither Williams nor Webber were ‘wilfully blind’ as

the Acting State Coroner suggested.397 Williams chose not to pursue difficulties that

Bengaroo might have within the community for fear of making him more reticent than

he already was. However, the objective of eliciting as full an account as was possible

was not avoided. In particular, Williams and Webber did pursue the Bramwell

allegations with Bengaroo. I accept the conclusion of the IRT that no other useful

information was garnered from Bengaroo in other forums398 – a proposition that the

393 Inspector Warren Webber, Re-enactment Interview with Lloyd Bengaroo, (Palm Island Police Station, 20 November 2004, [245]-[294]. 394 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 95-100. 395 Ibid 99. 396 Cf Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript of Tape 2 [504]ff. 397 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5. 398 Report of Investigation Review Team, Queensland Police Service, 'Williams', 2008, 44.

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CMC Review does not challenge. This suggests Webber and Williams did a

commendable job.

433. The other aspect of this complaint is that Bengaroo had suggested he had positioned

himself so that he did not see anything, that is, that he was concerned that he might

see something. Mr Martin’s questions assume that this ‘something’ must have been

something untoward. However, there is no real basis for that view. The Acting State

Coroner concluded that Bengaroo was:

Careful not to see or intervene in a situation where he knew he had no power

to influence what happened [and] … he felt he could do nothing without

further risk of ridicule and censure from his own people.399

434. This seems to accord both with my view and the view expressed by Williams. Bengaroo

was reluctant for fear of the repercussions to him in the community. Williams expressed

the view that pursuing that matter directly was likely to stymie the interview. Instead,

Webber and Williams focused on ascertaining what evidence Bengaroo could advance.

435. The difficulties experienced in interviewing Bengaroo are well documented. The Acting

State Coroner noted that Bengaroo ‘had difficulty in giving his evidence in court and in

making statements to investigating officers’ and that his evidence was characterised by

‘inarticulate responses and … reticence’. 400 Mr Martin suggested that ‘Bengaroo’s

answers could not be relied upon’, a view shared by the Acting State Coroner at least

in so far as factual matters were concerned.401 The prosecutor at the trial of Hurley

expressed the view that he ‘had no confidence that [he had] any idea what [Bengaroo]

would say when he was sworn and - and gave his evidence’.402

436. The findings of the Acting State Coroner clearly support the assertions of Williams and

Webber that Bengaroo was a reluctant witness and was concerned about harassment

from Mulrunji’s family.

437. I am not satisfied that the allegation made against Williams concerning a lack of vigour

when questioning the PLO can be supported on the material before me. I do not

propose to commence any disciplinary or managerial action with respect to this

allegation.

399 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 5. 400 Ibid. 401 Ibid. 402 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395.

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Allegation 7: The Form 1

438. The CMC Review made a number of complaints about the completion of the Form 1.

The complaint, so far as Williams was concerned, was summarised in Chapter 13:

Williams did not take any action to ensure that the Form 1 was accurate and

contained all relevant information. We note Williams comment made in his

procedural fairness submissions that he has not breached any requirement of

the OPM in relation to the Form 1.403

439. Williams directly challenged this complaint. He wrote in his procedural fairness

submission:

The CMC have failed to take cognisance of the fact the responsibility for

completing and submitting the Form 1 and supplementary Form 1 is that of

the investigating officer. Detective Senior Sergeant Kitching was the

investigating officer. I was not the supervisor nor did I have line control over

Detective Senior Sergeant Kitching. There is no requirement in the OPM

which I have breached in relation to the Form 1.404

440. OPM s 8.4.8 appears to provide some support to Williams. This section provides:

PROCEDURE

The purpose of the Form 1 is to assist the Coroner in deciding whether an

autopsy should be ordered, and to assist the pathologist performing the

autopsy to establish the cause of death. Therefore the investigating officer

should complete the relevant parts of the form as soon as possible. In some

cases, the form may be completed and autopsy procedures carried out

before the deceased is positively identified.

Generally, the autopsy will be carried out on the next working day of the

Government Pathologist, Government Medical Officer or other medical

practitioner, as applicable. The Form 1 should be completed and an order for

autopsy obtained before that time.

403 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 169. 404 Memo of Inspector Mark Williams ‘Response to adverse comments made in the Palm Island Report (Draft) April 2010’, undated, 3.

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Where an officer has additional information that could not be included on the

Form 1 at the time of submission, they should provide this information on a

Supplementary Form 1 (QP528).405

441. The issues arising out of the submission of the Form 1 were set out by the Acting State

Coroner:

The form 1 report of the death was not forwarded to the State Coroner until

the morning of 22 November 2004. It was signed by Detective Senior

Sergeant Kitching. The information failed to include any reference to the

allegation of assault by Senior Sergeant Hurley upon Mulrunji which had

been made by Roy Bramwell to Detective Senior Sergeant Kitching in his

video interview on 20 November 2004. That crucial information was not

available to the pathologist at the time of the first autopsy.406

442. Williams was not examined and did not otherwise give any evidence on any matter

related to the completion and submission of the Form 1 before the Acting State

Coroner. The criticism appears to be restricted to Kitching.

443. Williams was questioned by the IRT during the later review:

A form one. Ah going back to my original question in

relation to the form one um could you now tell me if ah, did

you read that form before it was submitted?

Williams: No.

Did you see that form?

Williams: No.

Do you know how that form came to be?

Williams: No.

Personally, not what you might have heard.

Just while on the ah issue of form one and ah discussions

with the Coroner's office or ah either the town, local town's

Coroner, the Acting, the State Coroner's office um did you

405 Emphasis added. 406 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10.

288

have and, and from memory at the inquest this is the real

question sorry to, to go on a bit, the inquest from memory

said you hadn't discussed um the matter with anyone from

the Coroner's office, is that correct?

Williams: That's right.

Had you knowledge that someone had informed the

Coroner's office?

Williams: Yes, yes.

And at the inquest I think you said that it was ah

Superintendent at Internal Investigations advised you of

that?

Williams: That the Coroner had been advised?

Yeah.

Williams: That probably would have been when I got told that I was

going up to do the um overview of the investigation.

Did Detective Inspector or Senior Sergeant KITCHING ah

discuss with you anything about the Coroner's office or

advising the local Coroner?

Williams: He could have, he, he could have ah UI. If he did it would

have been um something that I wouldn't have recorded or,

or it was of no great interest to me oth-oth-other than the

fact that it had been done.

The um, after the re-enactment with ah Mr Roy

BRAMWELL, Detective Inspector WEBBER and yourself

formed a view as to the credibility of Mr BRAMWELL.

True?

Williams: Yes.

We've already asked you about that and you -

Williams: Yeah.

- you thought he had no credibility because he couldn't see

around the filing cabinet.

289

Williams: Yeah.

Had you discussed that with Detective Senior Sergeant

KITCHING?

Williams: [Sigh] I honestly couldn't tell you.

Do you think ah with the value of hindsight that, well to start

with Detective Senior Sergeant KITCHING didn't mention

the allegations in the form one. He completed the form one

on the Friday night and then ah hadn't edited or changed it

and it was given to the local Coroner either on the Friday

night or the Saturday morning. But it was actually Saturday

and faxed on the Monday morning to the State Coroner's

office. Do you think Detective Senior Sergeant KITCHING

could have um or should have made mention of the

BRAMWELL allegations in the form one for the information

of the pathologist?

Williams: I don't know who interviewed BRAMWELL first up. Um

when Joe KITCHING completed that form ah he may not

have been aware.

He was aware.

Williams: He was aware.

Yeah. He, he interviewed BRAMWELL himself.

Williams: Oh okay.

Yeah.

Williams: Yeah. See I just don't know, I wasn't making it up because

I, I wasn't there and I don't know.

You're not making it up, you were just pre-presuming -

Williams: Yeah.

- presuming.

Williams: Yeah.

Yeah.

290

Or can't remember essentially.

Williams: Well I wasn't there so I UI I can only um -

But the question that was asked was do you recall having a

conversation with KITCHING or WEBBER in relation to the

credibility of um of BRAMWELL?

Williams: Oh yes. Yeah, yeah. Well because we did the - once we'd

done the video re-enactment we realised that um you know

there, there was something - well he'd, he'd made a serious

allegation um but the video re-enactment showed that um

UI as to, to what he saw or you know in his own mind he

may have believed it.

Do you think ah Senior Sergeant KITCHING with the value

of hindsight should have put the allegations ah UI

BRAMWELL in the form one?

Williams: I've never completed a form one, ah I don't even know

goes in there to be honest with you.

There's a summary in the last page.

A form one is an information sheet to the Coroner as to any

background, any circumstances surrounding the death. The

age, the ah ethnicity, ah those sorts of things in relation to

the death of the deceased.

Williams: Isn't this a, isn't this something sort of a, a preliminary,

preliminary form that's done by, normally by general duties

staff when they first come across an incident?

Or the primary investigator for the purpose of seeking

authority for a post mortem and to inform the pathologist.

Williams: UI. It's hard to say because the Coroner's going to be

informed ah progressively of the evidence. Um -

If you were investigating, ah the primary investigator would

you have put it on the form one or in a summary ah to the

pathologist at post mortem, you would have mentioned it?

Williams: I would have mentioned it, yeah. But my experience is UI.

291

Your experience, you've, you've been at the homicide

squad?


Homicide unit.

Williams: Yeah. And I've worked closely with um pathologists ah over

a number of years.

And in hindsight, it's and, and I'm saying you know

hindsight I'm not looking for the magic bullet, but do you

think you probably should have viewed the form one or

taken an interest in the form one prior to it being sent to the

Coroner?

Williams: No.

And that's because?

Williams: It's normally sent at the very beginning of the investigation

as I said every time I've um, I've UI just a, a general duties

and the Coroner would have been updated constantly ah

over the period of the investigation as to the facts as we

uncover them.

In your experience would you normally have seen a post

mortem occur earlier than it did rather than um four days

later after?

Williams: Yeah. That was, that was bizarre. Um I can't remember

exactly what happened, Brisbane wouldn't do it or Cairns

wouldn't do it or, or it just went on. And when we did, all the

work that we did on the days without any specific sign of

injury except that small cut that um it could have been

anything from ah natural causes onwards. Ah so the, the,

the actual um post mortem UI everything.407

444. The CMC Review further states that ‘Williams who had a responsibility for ensuring

procedural matters were being adhered to, did nothing to satisfy himself that the Form

407 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 2 [29]-[231] (emphasis added).

292

1 was appropriately completed’. 408 This assertion is the basis for consideration of

misconduct proceedings against Williams.

445. OPM s 1.17 provides that the role of the officer representing the Internal Investigation

Branch, Ethical Standards Command is to, relevantly, ‘in conjunction with the Crime

and Misconduct Commission officers, overview the investigation and provide

appropriate advice and assistance to the regional crime co-ordinator’. I have elsewhere

concluded that Kitching should have informed the pathologist of the allegations of

assault on Mulrunji by Bramwell and Sibley. I am also satisfied, after consideration of

the material provided, that Kitching failed to meet his obligations under Chapter 8 of the

OPM with respect to the completion of a supplementary Form 1.

446. Williams had considerable experience as an investigator at the Homicide Investigation

Unit and the Ethical Standards Command. Nevertheless, he admitted in his interview

with the IRT that he had never completed a Form 1. He indicated that the Form 1 was a

‘preliminary form that's done by, normally by general duties staff when they first come

across an incident’.

447. The Form 1 may be a significant source of information for the pathologist and should

reflect all relevant details known at the time of the incident under investigation, whether

verified or unverified. I am satisfied that Williams should have made inquiries about the

submission of the Form 1 and been familiar with the contents during his overview of the

investigation. The fact that the RCC was responsible for the overall conduct of the

investigation does not absolve Williams from his responsibility to overview this aspect

as part of his overall duty to ensure a complete and impartial investigation was

undertaken.

448. Williams is now acutely aware of the importance of the Form 1 and the Supplementary

Form 1 as this was made abundantly clear to him during the interview with the IRT and

is evident in his responses. Williams was not questioned about the Form 1 and

Supplementary Form 1 prior to his interview with the IRT. Equally, no adverse comment

was made against Williams by the Acting State Coroner with regards to this issue,

notwithstanding managerial action could be considered in the circumstances.

449. Regardless of whether I find some degree of culpability in Williams failure to ensure the

Supplementary Form 1 was submitted, I do not propose to commence disciplinary

action. However, I consider Williams should be provided with managerial guidance.


293


450. In the course of the investigation, a number of Indigenous witnesses were interviewed,

including Lloyd Bengaroo, Roy Bramwell, Patrick Bramwell, Florence Sibley, Gladys

Nugent, Edna Coolburra and Gerald Kidner. The Acting State Coroner was critical of

the failure to engage a support person during these interviews. She said:

It has been abundantly clear that throughout this investigation, it was not until

the Crime and Misconduct Commission assumed investigations, (on 24

November 2004) that there was any proper support or assistance provided to

indigenous witnesses. Ms Lisa Florence assisted Detective Inspector

Webster in talking with people. Her help was invaluable. It was essential to

build rapport and make connections to establish sufficient trust for proper

investigations and statements to be taken. Without such assistance the

results are plainly deficient, leaving both investigators and the witnesses at

cross purposes. Even such a witness as Lloyd Bengaroo, who was himself a

Police Liaison Officer, was reticient and hesitant in giving his statements.

There may of course be other explanations for his reticence, but a support

person, independent of both the police and local community might well have

elicited more information at an early stage.409


Difficulties in cross-cultural communication between police and Aboriginal

witnesses may have impaired the effectiveness of the investigation of this

matter by police. Significant attention should be given by the Police

Commissioner to the training of officers, particularly those who are working in

or near large Indigenous communities such as Palm Island in relation to

communication with Indigenous people and the use of support persons and

interpreters. This is a matter that is fundamental to the effective and fair

administration of justice in Queensland.410

452. The CMC Review complained that Williams, amongst others, ‘did not take any action to

comply with the requirements of [OPM] s 6.3.6 to take whatever action was necessary

to meet the special needs of the Indigenous witnesses’. 411 OPM s 6.3.6 relevantly

provides:

POLICY

409 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 410 Ibid 32. 411 Ibid 169.

294

Persons of Aboriginal and Torres Strait Islander descent are to be considered

people with a special need because of certain cultural and sociological

conditions. When an officer intends to question an Aborigine or Torres Strait

Islander, whether as a witness or a suspect, the existence of a need should

be assumed until the contrary is clearly established using the criteria set out

in s. 6.3.1: 'Circumstances which constitute a special need' of this chapter.

453. Williams acknowledges that he had difficulty understanding Bengaroo and did not seek

any assistance from a person with the skills to communicate with Indigenous people.412

Williams states he had no real difficulty understanding Bramwell.413 He also indicated

that he did not have any problems communicating with Florence Sibley: ‘she was a

very nice old lady’.414 The CMC Review suggested the re-enactment with Bengaroo

demonstrated the need for a support person when interviewing an Indigenous

person.415

454. There is no evidence Bengaroo was treated as a person of special needs during the

initial and subsequent inquests. In Bengaroo’s interview with CMC Investigators on 8

December 2004 he was accompanied by his legal representative, Mr Cranny. Mr

Cranny’s presence is not explained in the transcript of the interview, however it appears

likely Mr Cranny was provided to support Bengaroo by the Queensland Police Union of

Employees. This support could also be taken to meet the obligations of the

investigators under of the OPM s 6.3.



obligations under the OPM with respect to dealing with Indigenous witnesses.

In addition to its overall provision for Indigenous persons to be considered as

having special needs, whether witnesses or suspects, the OPM clearly stated

that when questioning Indigenous persons the existence of a special need

should be assumed until the contrary was clearly established.

There is simply no evidence that the question of special need was considered

at any point.

412 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 478-479. 413 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript Tape 1 [684]-[692]. 414 Ibid Transcript Tape 1 [739]-[741]. 415 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 119.

295

Although seven Indigenous witnesses were interviewed, there is no evidence

of any action being taken to compensate for the special need such as

providing a support person. There is no evidence of the witnesses being

offered the opportunity to have a support person. Questioned about this in

retrospect, Webber and Kitching both asserted that at no time did they

consider that a support person was required.416

456. The CMC Review is mistaken when it speaks of an obligation. The IRT suggested, in

contradistinction, that there was no obligation. The CMC Review accepted that the IRT

statement was ‘technically correct’.417 That is to say, the CMC Review accepted the

accuracy of the IRT’s observation that the OPM did not place an obligation on the

investigators to use a support person. Moreover, the CMC Review’s statement appears

to reflect a limited conception of the considerations set out in Chapter 6 of the OPM.

The real issue to be determined when assessing special needs ‘is to evaluate the

ability of the person to be interviewed to look after or manage their own interests’.418

The relevant factors are set out in s 6.3.2. The CMC Review does not appear to have

considered these factors, which make it clear that the decision to provide a support

person is discretional.

457. Section 6.3.2 of the OPM places a requirement upon police officers wishing to interview

a person to evaluate whether that person falls within the ‘special needs’ group.

Indigenous persons are prima facie considered to have special needs, until it can be

demonstrated through an application of s. 6.3.2 of the OPM that they do not fall within

this category.

458. Williams was examined by Mr Boe before the Acting State Coroner:

Boe: All right. I'll just go to another subject matter. When you

come to Palm Island was that the first time you'd been

here?—

Williams: No, I've been once before - once before.

Boe: And you were aware that you would, perhaps during the

course of your investigation, need to speak to indigenous

people from Palm Island?—

Williams: Oh yes.

416 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 118. 417 Ibid 121. 418 Operational Procedures Manual s 6.3.2.

296

Boe: You are aware that Palm Island [indistinct] - their means of

communication is sometimes difficult to understand?—

Williams: For me, yes, I have - do have trouble.

Boe: You in particular. You found it difficult to even talk to a

police liaison officer who's from this community?—

Williams: Yes, I do.

Boe: Did you take any steps at all to alleviate or reduce those

difficulties?—

Williams: When I interviewed Mr Bengaroo, no.

Boe: When you came to the Island?—

Williams: No, I didn't.

Boe: Why not?—

Williams: Well the local police - the local detectives from Townsville

were here and they appear to have a good rapport with the

local people.

Boe: Did you ask, did you? Did you know beforehand that the

local police from Townsville were effective cross-cultural

communicators?—

Williams: No, but I do know that they seem to have no trouble

communicating with people on the Island.

Boe: I see?—

Williams: From my observations.

Boe: When you were finding difficulty in communicating with

Bengaroo, did you seek to get any assistance from

anybody at all?—

Williams: No.

Boe: No need?—

Williams: I never thought of it.

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Boe: It didn't matter you couldn’t properly understand what he

was saying?—

Williams: I tried to understand what he was saying as best we

possibly could and to make it as clear as possible.

Boe: But you said he couldn't - you said you had difficulties?—

Williams: I did have difficulties.

Boe: Did you do anything about that?—

Williams: No, I didn't.

Boe: Shouldn't you have had to do-----?—

Williams: Well once again that'd be a difficult - I really don't know. I

really don't know how you could - how I would have

addressed-----

Boe: Well perhaps do what the CMC does is, bring with them,

indigenous officers of the CMC to assist police officers in

that difficult process?—

Williams: Mmm.

Boe: Is that perhaps one example?—

Williams: That could be of help, yes.

Boe: Is that part of general QPS policy, that if you are going in to

police - into an aboriginal community, that you ought to

identify if there are difficulties and then take steps like ring

people who have those skills?—

Williams: I really - I can't comment on that. I'm not aware. I'm really

not aware.

Boe: For example when you were talking to Mr Bramwell?—

Williams: Yes.

Boe: I take it you had some difficulties understanding him?—

Williams: From recollection, less than I had with Mr Bengaroo.

298

Boe: And did you have difficulties understanding him?—

Williams: No, he was fairly clear.

Boe: Is that - he - is that right? Is that how you took your

interview process with Mr Bramwell, as one where you had

no difficulties?—

Williams: I wouldn't say no difficulties, no. It was still difficult but I

could understand him.

Boe: All right. The-----?—

Williams: Possibly because-----

Boe: You became aware I take it-----?—

Williams: Sorry - Mr Bramwell was a lot louder when he spoke. When

I spoke to him he seemed to speak a lot louder, from

recollection.

Boe: You became aware that Mr Bramwell was accused of

having been involved in some fairly serious assaults?—

Williams: Yes.

Boe: You also became that, for the time you were there, that

those matters were not addressed?—

Williams: That’s correct.

Boe: In fact, he was released by Mr Hurley?—

Williams: Yes.

Boe: Was that a matter of concern for you too - at least cause for

some future investigations?—

Williams: That wasn't my role. That would be a role for the local

detectives.

Boe: Mr Bramwell was an eye witness, he says, to the

incident?—

Williams: Yes.

299

Boe; Mr Bramwell said he was told by Mr Hurley that he could

leave?—

Williams: On the day.

Boe: Yes?—

Williams: Yes.

Boe: In circumstances which might have raised a suspicion that

there was a concern why Hurley did that?—

Williams: I don't - I wasn't there at that time so I really - I can't

comment on that.419

459. Williams provided some further comments relating to his experience with Indigenous

witnesses generally and the interviews on Palm Island in particular:

Okay. We can go back to any of these if you think of

something. Um what we'll talk about now is ah the Acting

State Coroner talks about the lack of support to indigenous

witnesses and felt it to be inappropriate the way the police

conducted their interviews and investigation because they

didn't - they weren't possibly aware of the, the situation in

relation to the indigenous population and there's a number

of questions that I would ask you about that. Ah could you

outline your experience in dealing with indigenous

witnesses and complaints in the service?

Williams: I worked at Woorabinda for a number of months in my very

junior years and ah have dealt with indigenous people on

and off on an irregular basis since then. Although I've never

worked um for a long period of time in any sort of ah, um

area like Palm Island or Cherbourg or anywhere like that.

Um do you believe that you have a problem dealing with

indigenous persons?

Williams: In general?

In general.


300

Williams: No.

Um do you think at any stage that a support person for any

witness was required?

Williams: On that day?

On, on - whilst on the island.

Williams: You can see in the ah video re-enactments that Mr

BRAMWELL and Mr um BENGALOO were both fairly self-

explanatory in that, that regard.

And I'll just take you back to the inquest there I think you

said that ah BRAMWELL you had absolutely no difficulty

understanding what he was saying because he spoke

loudly and with BENGAROO you had a significant amount

of trouble ah not - in terms of clarity and the level of volume

of voice, that's correct isn't it?

Williams: That is correct.

And that was the evidence regarding UI.

Inquest.

Inquest.

Yeah.

And logistically how would you have gone about obtaining

a support person if one was required? Or would you have

left that to the R - R-C-C?

Williams: UI would have taken days if at all. Um and the, the two

people UI were Mr BENGAROO, Mr BRAMWELL. If you

left Mr BRAMWELL for more than fifteen minutes he'd start

to forget things. By the time you got someone there he may

have forgotten everything.

And in relation to your dealings with Mr BRAMWELL and

your attempts to take a statement from him and ah, and get

a version from him how would you rate his credibility, ah

was - how do you, how do you rate him as a witness?

301

Williams: When we took him through, or we took him through the

video re-enactment it was done slowly um and fairly with

him and ah I think by the time we finished he could see

around corners. I think he exaggerated and had no

credibility whatsoever.

Okay. Did you ah read or take part in an interview with ah

Mrs SIBLEY, Penny SIBLEY or Florence SIBLEY?

Williams: Yes the next day, the next day.

It was the next day in Ingham I believe.

Williams: Ingham UI yes.

With Senior Sergeant KITCHING?

Williams: With Senior Sergeant KITCHING.

Any problems with speaking with ah Mrs SIBLEY?

Williams: No. She was a very nice old lady.

Quietly spoken?

Williams: She's quietly spoken.

As a result of any, any and all of those interviews that you

conducted ah with indigenous persons on the island were

any complaints received about your demeanour or the way

that you dealt with them?

Williams: Not that I'm aware of.

Can I just go back to Mrs SIBLEY, could you describe her

demeanour and how you ah, just tell me a little bit about

how you um felt whilst interviewing her, what about her

demeanour UI, how she appeared to you?

Williams: She was quiet, nervous, um un - she was okay with it but

we treated her well and um she provided the information.

Do you have a view as to why you could communicate with

her as easily as you did?

302

Williams: I, I just think it's a personality thing, it's how you treat

people. Um whether they're, they're ah aboriginal, Asian,

Russian or Australian if you treat them nicely um and you're

aware of their um, their feelings and ah the circumstances

under which you're talking to them um providing they can

speak English ah you can communicate quite clearly.

Would you describe her as cooperative?

Williams: She was cooperative.

And ah BRAMWELL was cooperative?

Williams: He was cooperative.

BENGAROO?

Williams: As much as he could be.

What do you mean by that?

Williams: UI um you know without being harsh to Mr BENGAROO I

don't think he's the smartest man and I know it was a pretty

um traumatic event.

He was scared giving evidence, not scared of something

but scared of giving evidence or scared of speaking with

you or just apprehensive?

Williams: Just apprehensive. But that's you know he didn't give

evidence at the trial, he didn't give evidence at the ah, or he

gave some evidence at the ah, at the ah inquest um UI well

I could use his words at the inquest compared to when he,

when I spoke to him and he had um, I imagine he would

have had all the support in the world and they still couldn't

get two words out of him and we basically got a um, a fairly

complete version of, of what happened.

Um I appreciate that you weren't at the ah, at the HURLEY

trial, but did you follow that in any way, are you aware of

the witnesses who were called?

Williams: I was one of the witnesses but I never um, I was

subpoenaed um the prosecutor never spoke to me they just

303

subpoenaed me so I, I have no idea what happened at the

trial.

Okay. Are you aware if BRAMWELL or BENGAROO gave

evidence to the trial?

Williams: No.

Okay.

Williams: I don't think they did.

Did you have an opinion as to why they might have given

evidence, ah might not have been called as witnesses?

Williams: Well because BRAMWELL's just completely unreliable.

BENGAROO?

Williams: BENGAROO, well after his um evidence at the ah inquest

they wouldn't have got five words out of him.420

460. I have considered the video re-enactment conducted with Bengaroo. Bengaroo spoke

slowly and at times hesitantly during the interview. He appeared to consider his

responses before articulating his thoughts. I did not have difficulty understanding what

he said in the majority of the recording, however did replay some of the video to

confirm my comprehension of what he was saying. I agree with the assertion of

Williams that Bengaroo appeared to be apprehensive. In the circumstances, this is to

be expected. From my observation, I conclude that Bengaroo did not have difficulty

understanding the questions. At the time he had twenty-one years’ experience as a

Community Police Officer and four years as a Police Liaison Officer at Palm Island. I

would expect him to be less anxious than other members of the Palm Island community

in the company of police officers, and would not expect Williams or Webber to

immediately consider him in the category of a special needs person requiring a support

person to be present.

461. I have reviewed the re-enactment videos conducted by Williams and Webber with Roy

Bramwell. I made the observation that Bramwell speaks quite clearly and appears to be

comfortable in the company of the investigating police. He willingly engages in a

demonstration acting as Mulrunji with Webber as Hurley. Webber makes considerable

420 Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007, Transcript Tape 1 [645]-[835].

304

physical contact with Bramwell during the course of the re-enactment. I cannot see

during any part of the roleplay that Bramwell shows any discomfort in his body

language or difficulty understanding what is being asked of him to suggest that he falls

within the category of a special needs person requiring a support person to be present.

462. During my deliberations, I carefully considered the extent of communication difficulties


concerns were raised in other fora. For example, in the inquest before the State

Coroner, Counsel Assisting the Coroner raised this issue with respect to the witnesss

Verna Snyder. The State Coroner determined the evidence could be given without

assistance. No Indigenous witness was provided with a support person in the inquest

before the State Coroner.421 Ten Indigenous witnesses gave evidence – including Ms

Snyder – unassisted by a support person. By contrast, I note that support was given to

seven of those Indigenous witnesses in the inquest conducted by the Acting State

Coroner. Indigenous witnesses were also provided with support in the inquest before

Mr Hine. The Acting State Coroner suggested in the context of the police interview with

Bengaroo that ‘a support person, independent of both the police and local community

might well have elicited more information [from Bengaroo] at an early stage’.422 She

also suggested that the Commissioner should give consideration to training in ‘relation

to communication with Indigenous people and the use of support persons and

interpreters’.423

463. It seems the same Indigenous witnesses that appeared before the Acting State

Coroner gave evidence without the assistance of a support person at the trial of

Hurley.424 As was true of the first inquest, no Indigenous witness was provided with a


to that decision.425 I can only conclude that these persons were assessed as not falling

within the category of a special needs person requiring a support person to be present.


necessarily absolve the alleged failings by Williams in not properly applying Service

policy and procedures. However, it ably demonstrates that the matter is not simply

resolved by recourse to the applicable criteria. The decision was a discretionary one.

421 Tracey Twaddle (56); Victoria (64); Reginald Barry (65); Patrick Bramwell (68); Edna Coolburra (84); Gladys Nugent (92); Gerald Kidner (102); Verna Snyder (109); Nobie Clay (117); and Roy Bramwell (126). 422 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006) 10. 423 Ibid 32. 424 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007; Florence Sibley (53), Eda Marie Coolburra (65), Gerald Brian Kidner (78), Gerna Maree Snyder (90) and Gladys May Nugent (157). 425 Cf Supreme Court of Queensland, Equal Treatment Benchbook (Supreme Court of Queensland Library, 2005), ch 9.

305

Whilst I accept that the discretion may have been exercised differently, I do not accept

that the decision was unreasonable.

465. My observations of Williams and Webber during the video re-enactments failed to

support the assertions of the CMC Review that the officers lacked vigour. I find that

both Williams and Webber pursue relevant lines of questioning. Their questioning

appears to be appropriate both in terms of language and posture. Bengaroo and

Bramwell could apparently hear and comprehend what was being asked of them. Their

answers were generally quite responsive subject to the reticence of Bengaroo, further

supporting a conclusion that the questioning was appropriate.

466. I have considered whether there is sufficient evidence to satisfy the requisite standard

of proof to commence disciplinary proceedings. I do not find any evidence to establish

that Williams breached any relevant policy. Accordingly, I do not propose to commence

any disciplinary action or give managerial guidance.

Allegation 14: Failures in the Questioning of Hurley and –

Allegation 16: Failure to Pursue Other Lines of Questioning

467. The CMC Review complain that Williams ‘failed to ensure that relevant lines of

questioning were pursued’. Due to the lack of specificity in this complaint, I have

additionally reviewed the CMC Review complaint under the headings ‘Failures in the

questioning of Senior Sergeant Hurley’ and ‘Failure to pursue other lines of

questioning’. My observations in relation to these complaints are found from

paragraphs [278] and [310] respectively.

468. I restate my view that I do not propose to instigate any disciplinary or managerial action

against Williams in relation to these matters.

(Former) Detective Sergeant Darren Robinson

469. Robinson attended to a prisoner escort on 18 November 2004. On the next day, 19

November 2004, he purchased groceries with the intention of returning to Palm Island

later that day. He received a telephone call from Hurley at about 11.45am advising him

of the death in custody of Mulrunji. Robinson immediately contacted his supervisor,

Kitching, and the Regional Crime Coordinator, Webber. He had a telephone

conversation with Kitching at about 11.50am and with Webber at 11.55am. Robinson

then attended the Townsville CIB office and spoke to Kitching. At about 2.20pm

Webber, Kitching and Robinson, in the company of other officers, travelled to Palm

Island by plane, arriving at about 2.55pm.

306

470. Kitching was appointed by Webber to investigate the death in custody. It is not clear in

the material provided who appointed Robinson to assist Kitching. However, it would

seem that Robinson was appointed by Webber in accordance with his role as Regional

Crime Coordinator.426 Section 1.17 of the OPM provided:





471. There is also information to suggest that Kitching selected Robinson to assist as he

had local knowledge. During his interview with the IRT, Kitching said:

We were talking there about um Senior Sergeant ah

Detective Sergeant sorry ROBINSON ah being involved in

the investigation on the island um you didn't have personal

experience of ah or not a great knowledge of individuals on

Palm Island.

Kitching: Not on Palm Island, no.

So if you were to investigate on Palm Island ah and you

didn't use Detective Sergeant ROBINSON, would you be

hamstrung in any way?

Kitching: Well I certainly -

Would it have an effect?

Kitching: Yes it would have a massive effect. I certainly wouldn't

have ah had any understanding or knowledge, local

knowledge of where to find people on the island, who

associates with who, what the community um, um

structures are ah or, or who the people are to ah, to assist

with the investigation. Detective Sergeant ROBINSON was

the only Police Officer on the island that was removed from

this incident it-itself, wasn't on the island at the time, he

was the most appropriate person um to provide assistance

to me to identify these persons, um to assist in the

investigation.

426 OPM s 1.17.

307

But you previously said you didn't identify him or appoint

him as your ah 2-I-C for that?

Kitching: No. He wasn't appointed to the investigation but I

requested him to assist with you know community liaison,

finding witnesses, people, that type of stuff and then I

requested him to ah obtain statements for me, after I

conduct records of interview with people like we're doing

here right now, I asked him to go away and commit that to

a, ah a paper statement before presenting it to the um

presenting them to the Coroner at a later time.

Inspector WEBBER was - had knowledge of, of that?

Kitching: Ah Inspector WEBBER was doing a lot of things that day

including liaising with the family and, and other, other

matters in relation to the death. Now that was ah that was a

strategy that I implemented, um certainly Inspector

WEBBER was there. Ah he was briefed a number of times

throughout the day and he certainly didn't have reser, did

not express any reservation to that process.427

472. Robinson assisted Kitching with a number of witness interviews on the afternoon and

evening of 19 November 2004. Those interviews were conducted with Hurley, Gladys

Nugent, Patrick Bramwell, and Edna Coolburra.428 Kitching also conducted interviews

with Bengaroo and Leafe during this period.429 On 20 November 2004, Kitching and

Robinson interviewed Roy Bramwell.430 Robinson took a type-written statement from

Bramwell at the conclusion of the interview. On the information available, all of these

activities were undertaken prior to Williams arrival on Palm Island at about 10.30am on

20 November 2004.

473. On his arrival, Williams undertook a number of video re-enactments, with Webber

assisting. Those re-enactments were conducted with Roy Bramwell, Hurley, Bengaroo

and Leafe. 431 Significantly, Robinson was not involved in any of the interviews,

re-enactments or statements after Williams arrived on Palm Island with the exception of

taking a noncontentious statement from the ambulance officer, Bolton. It would appear

427 Inspector Interview with Senior Sergeant Raymond Kitching (Townsville Police Station, 1 August 2007), Transcript Tape 2 [30]-[81] (emphasis added). 428 Conducted from 4.04pm-4.36pm, 5.35pm-5.45pm, 6.58pm-7.07pm and 8.22pm-8.35pm respectively. 429 Conducted from 4.50pm-5.09pm and 7.50pm-8.12pm respectively. 430 Conducted from 8.15am-8.27am. 431 Conducted from 10.52am-11.02am, 11.53am-12.07pm, 12.10pm-12.22pm and 12.50pm-1.12pm respectively.

308

that Robinson’s role in the investigation was minimal once Williams arrived. It is not

clear whether this occurred by coincidence or design. It would be difficult for Williams to

conclude, without knowing the details of the briefing he received on his arrival, that

Robinson’s involvement might impact adversely on the impartiality of the investigation.

Whether Williams became aware of Robinson’s personal relationship with Hurley is not

apparent on the material.

474. The Acting State Coroner stated:



investigation. It was not the fault of Detective Robinson that this occurred - it



475. The CMC Review made a number of allegations against Robinson and recommended

disciplinary action for misconduct. 433 Robinson medically retired from the QPS on 8

October 2010. Nevertheless, disciplinary proceedings may still be brought against a

former officer under certain circumstances. Part 7A of the Police Service Administration

Act 1990 provides the authority to take disciplinary action against a former officer after

the end of the former officer’s employment subject to the conditions set out in that Part.

Relevantly, s 7A.2 provides:

(1) The commissioner may make a disciplinary finding and take

disciplinary action against the former officer.

(2) In disciplining the former officer, the commissioner may make a

disciplinary declaration and may not take any other disciplinary action.

(3) The commissioner may only make a disciplinary declaration if the

disciplinary action that would have been taken against the former

officer if the former officer’s employment had not ended would have

been—

(a) termination of employment; or

(b) reduction of rank.

432 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 433 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 167-8.

309

476. I have considered the allegations made against Robinson by the CMC Review. I am of

the view that the alleged misconduct, if proven, would not incur a sanction resulting in

termination of employment or reduction in rank. A sanction at this level is prerequisite

to initiating proceedings against a former officer.434

477. The CMC Review made several allegations against Robinson which support

consideration of disciplinary proceedings which are identified in pt 4 of the CMC

Review. I have considered Robinson’s involvement to each of these ‘allegations’ and

have identified a number of issues for consideration.


478. The first complaint the CMC Review makes, insofar as Robinson is concerned, is

addressed in ch 9 under the heading ‘Allegation 1: Officers serving on Palm Island

involved in investigation’. A number of key issues were suggested as arising in this

context, namely:

• Robinson’s conflict of interest given his friendship with Hurley and any

management of his conflict of interest

• The nature and extent of Robinson’s involvement and any alternative to

his involvement

• The responsibilities of Webber and Kitching in relation to Robinson’s

involvement in the investigation when they knew about his friendship and

history with Hurley

• The responsibility of Williams to satisfy himself that none of the officers

involved in the investigation had any conflict of interest that would impact

adversely on the impartiality of the investigation.435

479. The CMC Review noted that:

The Code of Conduct obliged Robinson to conduct himself and discharge his

responsibilities with professionalism and integrity. In particular he was obliged

to avoid both actual and apparent conflicts of interest and disclose details of

any conflict to his supervising executive officer.436

434 Police Service Administration Act 1990 s 7A.2(3). 435 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 45. 436 Ibid 167.

310

480. The criticisms reflect, to some extent, the mindset exhibited by legal practitioners

during the inquest before the Acting State Coroner. Two passages illustrate this

mindset. Mr Boe examined Hurley in relation to the appropriateness of Robinson being

involved in the investigation:

Boe: in regards to the death in custody, there was the Detective

Senior Sergeant. Who was that?—

Hurley: Detective Senior Sergeant Kitching.

Boe: Yes. But before even Kitching arrived, you've got

Robinson-----?—

Hurley: No, incorrect. Robinson wasn't on the island. He came over

with the investigation team.

Boe: Sorry. The person interviewing Roy Bramwell, was

Robinson?—

Hurley: Well, I didn't know that.

Boe: But that - you would accept that that was just-----?—

Hurley: Well, I didn't know that.

Boe: Well, now you know, you would accept that that's just

utterly inappropriate?—

Hurley: Well, I'm not-----

Boe: Surely?-- -----

Hurley: at - he, as a detective inspector there at the time, he

wouldn't have been speaking to Roy by himself.

Boe: Well, you don't know, do you?—

Hurley: I don't know, but I'm assuming.

Boe: But your mate interviewing the-----?—

Hurley: Sir, that's not my call.

Boe: Yes. I'm not criticising you?—

311

Hurley: That's the call of the detective inspector who led the

investigation.

Boe: I'm not criticising you. I'm asking you to comment on the

appropriateness or otherwise of Roy Bramwell, the one

person independent of police, who may have had an

opportunity to see what you did in your arrest process of

Mulrunji, was being interviewed first up by Robinson. Now,

you know that now?—

Hurley: I know that now you've just said it.

Boe: Yes. And that would be - that is just highly inappropriate in

relation to a death in custody, surely?—

Hurley: Well, that's not for me to comment.

Boe: Are you just thankful that that happened?—

Hurley: No, that's not for me to comment.

Boe: You knew Senior Sergeant Kitching pretty well as well,

didn't you?—

Hurley: I knew Senior Sergeant Kitching.

Boe: So the second fellow that's looking after your investigation,

shouldn't have been there, should he?—

Hurley: I knew Detective Inspector Webber too. The only person - I

knew that scenes of crime that came over as well.

Boe: You did pretty well, didn't you; the three or four people

coming to investigate your conduct are people you knew

pretty well?—

Hurley: Yeah. And they treated me like a leper.

Boe: They cooked you dinner the night they came over?—

Hurley: I don't even remember them cooking dinner.

Boe: But they did. You don't dispute that they did?—

Hurley: I don't dispute that, but I wasn't treated like a friend.

312

Boe: You weren't treated too badly, getting a meal on the

night-----?—

Hurley: I didn't - I didn't eat.

Boe: -----on the night they came over to investigate you?—

Hurley: They came to my house, sir. I didn't eat.

Boe: You must be one of the best treated lepers I've ever heard

of?—

Hurley: Certainly when I said a leper I was referring to the

investigation.

Boe: They were there to investigate you?—

Hurley: They were there investigating a death in custody.

Boe: And they were cooking you a meal and breaking bread with

you. Can you not see that from the community perspective,

that is so offensive to think that the team coming over to

investigate you, are sitting down cooking you a meal in the

police compound?—

Hurley: We have to eat somewhere and there's nowhere else.

Boe: You don't think that that would cause considerable distress

and doubt about the investigation into this death?—

Hurley: No, I don't.437

481. During the same inquest, Mr Callaghan examined Robinson in relation to his

involvement in the death in custody investigation:

Callaghan: Okay. Well, let's turn to the death of Mulrunji. Are you

aware, Detective Sergeant, of any special requirements

that apply in the case of a death in custody?—

Robinson: Um-----

Callaghan: In terms of the investigation I'm talking about?—

437 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 1259-61 (emphasis added).

313

Robinson: I'm not sure of the point form in that, no.

Callaghan: Are you aware of any need for the Homicide Squad to be

involved?—

Robinson: No, I'm not.

Callaghan: Are you aware that a death in custody needs to be treated

as a Homicide investigation?—

Robinson: It needs to be treated seriously, yes.

Callaghan: Are you aware that it is needed to be treated as a Homicide

investigation?—

Robinson: No.

Callaghan: No. Thank you. You were appointed as part of the team to

investigate Senior Sergeant Hurley on the 19th of

November 2004?—

Robinson: Yes.

Callaghan: You had no difficulty with that, I take it?—

Robinson: No.

Callaghan: You'd done that before; you'd investigated Senior Sergeant

Hurley before?—

Robinson: Yes.

Callaghan: And on the basis that there had been no issues with those

investigations, there was no problem with this one?—

Robinson: Well, I was only at the commencement of it, yes, no issues.

Callaghan: Well, I'm talking about the moment when you were

appointed to the investigation. There was no reason you

saw why you should put up your hand and say, "Look,

Chris is a mate of mine. I don't think I should be part of this

team"?—

Robinson: Well, I was there to assist Detective Senior Sergeant

Joseph Kitching.

314

Callaghan: Yes. Yes. Listen, you saw no need to put up your hand and

say, "I don't think I should be part of the team at all"?—

Robinson: No.438

482. As noted earlier, I accept Robinson was appointed to assist with the investigation of the

death in custody. He was not the principal investigator. He did not have the authority to

influence the direction or conduct of the investigation. I do not accept that he was

appointed to investigate Hurley as suggested by Messrs Boe and Callaghan. This is not

merely a semantic distinction. The original investigation team did not know the cause of

death. The CMC Review adopts a similar modality to the legal practitioners at the

inquest, suggesting that Hurley was ‘the person most likely to be under investigation’439

and ‘should have been treated as a suspect’.440 The investigators’ presence on Palm

Island may have been misconstrued when it is suggested to Robinson that he had

been appointed to investigate Hurley. In fact, he was assisting Kitching, the principal

investigator in a death in custody investigation.

483. Allegations involving a conflict of interest, if proven, could amount to a breach of

discipline or misconduct. I accept, as the CMC Review suggested, that this would be

dependent upon the nature and extent of the conflict. Robinson’s view that there was

no perceived conflict of interest would be relevant, though by no means determinative. I

note that Robinson’s involvement was reduced to essentially administrative and/or

ancilliary tasks once Williams arrived on Palm Island.441 In making my determination in

relation to this allegation I have considered my findings with respect to Williams,

Webber and Kitching. Having regard to the material considered by me, I am not

satisfied a sanction of dismissal or demotion would follow if disciplinary proceedings

were to commence with respect to any of these officers, including Robinson.

484. I do not propose to commence proceedings against Detective Sergeant Robinson

under the provisions of Part 7A of the Police Service Administration Act 1990.

Allegation 3: Dinner at Hurley’s Residence

485. The second complaint against Robinson is addressed in ch 9 under the heading

‘Allegation 3: Dinner at Hurley’s residence’. A number of key issues were suggested as

arising in this context, namely:

438 Ibid 1303-4. 439 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 61. 440 Ibid 69. 441 Cf ibid 52.

315

• What action, if any, did Webber or Kitching take to ensure that

appropriate arrangements for meals were made for the investigation

team?

• Whose decision was it to eat at Hurley’s residence? Did Webber,

Kitching and Robinson consider the available alternatives?

• Did Webber or Kitching, as officer in charge and senior investigator

respectively, consider the impact of such behaviour on the impartiality of

the investigation and on likely community perceptions of that issue?442

486. The Acting State Coroner stated in her findings:






support, but to identify the need and delegate someone else to provide it.443

487. She further commented:

The investigation's appearance of impartiality was further undermined by the

following conduct:-

• …

• It was completely unacceptable for investigators to eat dinner at

Hurley's house while the investigation was being conducted.444


Although he knew that Hurley was the principal person of interest in the

investigation and he had participated in the investigation, Robinson cooked a

meal at Hurley’s residence and together with the senior members of the

investigation team had dinner there with Hurley on the night of 19 November

2004.445

442 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 72. 443 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 10. 444 Ibid 31. 445 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 168.

316

489. Robinson was examined by Mr Callaghan, Mr Hunyor and Mr Boe during the course of

the inquest before the Acting State Coroner. Relevantly, he was examined in relation to

the events during the evening of 19 November 2004. In response to Mr Callaghan’s

questions, he said:

Callaghan: Friendship didn't overcome you to the point where you felt

that you could tell him that, just to let him know what's

going on?—

Robinson: I think from memory - like I worked - obviously late into that

evening. And I - I don't think I had much contact with Chris,

actually; because after that day, I actually cooked dinner for

everyone. And we ate and then - because I had the night

before, here in Townsville, I think I was off to bed early, and

then up early the next day. No, I didn't have much to do

with Chris during that evening.446

490. Later, in response to questions from Mr Hunyor, he said:

Hunyor: That's all right. Okay, thank you. You mentioned in your

evidence earlier that you had dinner on the night of the

19th, with - I think you said you cooked dinner for

everyone?—

Robinson: Yep.

Hunyor: Who was there?—

Robinson: Senior - Detective Senior Sergeant Joe Kitching and

Detective Inspector Warren Webber. Myself; I can't even

recall if anyone slept in my accommodation for that night,

but it was cooked at Senior Sergeant Hurley's place.

Hunyor: Okay. So - so Senior Sergeant Hurley was there, at

dinner?—

Robinson: Yep, yeah, from memory, yep.

Hunyor: Okay, and who else was there? Was Lloyd Bangaroo

there?—


317

Robinson: No.

Hunyor: What about Sergeant Leafe?—

Robinson: I know there was us four there. I'm not sure if anyone else -

(indistinct) just being there. He may have turned up for a

beer, or - you know, and then left. I don't know.447

491. Finally, when questioned by Mr Boe, he said:

Boe: All right. The - when you provided hospitality for the

investigators on Palm Island in relation to the death in

question on the night of the 19th, you were aware that each

of the people who you were providing hospitality for were

involved in a serious investigation in relation to Senior

Sergeant Hurley?—

Robinson: Yes.

Boe: And you would accept, wouldn't you, that members of the

community who became aware of that would be terribly

distressed that level of convivial arrangement was taking

place between the investigators and the subject matters -

the person the subject of the complaints?—

Robinson: Well, I don't see that the officers involved had - had, um,

much to bargain with. Like, there's no - you know, they

jumped on a plane, they came over, they needed to be fed,

clothed, accommodation. It was at the police barracks.

Boe: You didn't have to go to Senior Sergeant's Hurley's house,

surely, to do all that?—

Robinson: Um, that's where I cooked the food for everyone.

Boe: You could have gone to the barracks for-----?—

Robinson: Gone to my accommodation?

Boe: Yes?—

Robinson: Um, that may have been but we - I cooked up there.

447 Ibid 788.

318

Boe: I know you did. All I'm saying is do you accept that was a

wholly inappropriate thing for you to do?—

Robinson: No.448

492. The CMC Review commented that:

All of the officers interviewed on the subject of dinner at Hurley’s residence

miss the main issue of concern - that it was inappropriate for the investigating

officers to be associating informally with someone who should have been

treated as a suspect, and that such association would be likely to impact on

the perceived impartiality of the investigation.449

493. The CMC Review acknowledged that logistics planning for the provision of meals was

inadequate. However, the CMC Review asserted that this issue was far less important

than associating informally with Hurley. It opines that Webber carried the responsibility

of ensuring these adverse circumstances did not impact upon the impartiality of the

investigation.450

494. The CMC Review suggested a number of alternatives to eating at Hurley’s residence:

In fact, a number of options were available to the investigation team. We note

that other members of the investigation team were able to make

arrangements for meals. As suggested by the IRT, ‘Webber could have

asked other officers to make these arrangements or could have asked senior

officers for support’. Meals could have been arranged by Tonges, Steadman

or any of the officers present on Palm Island not involved in the investigation.

Robinson himself had food available that he had brought from Townsville that

day, which he could have cooked at his own house and arranged for Webber

and Kitching to eat elsewhere than at Hurley’s residence.451

495. The assertion that other staff, that is Tonges, Steadman or any of the officers present

on Palm Island not involved in the investigation, could have organised the investigator’s

meals is proffered by the CMC Review without any real consideration as to its viability.

Similarly, reference is made to the arrangements of other members of the investigation

team. This appears to refer to those officers who dined with Leafe. No consideration is

made of the propriety of dining with Leafe by the CMC Review.

448 Ibid 1324. 449 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 77 (emphasis added). 450 See, generally, ibid 78. 451 Ibid 78.

319

496. The alternatives suggested by the CMC Review appear to rely on information that was

not known to the investigators at the time. Hurley had been interviewed in relation to

the death in custody. I accept that it was likely that he would be further questioned to

clarify information he previously provided. Hurley was, at that time, not implicated in

assaults against the deceased. The CMC Review asserts that he was to be ‘treated as

a suspect’.452 As I have indicated elsewhere, the assertion is simply unsustainable.453

The Acting State Coroner more appropriately described Hurley as ‘the officer most

likely to be under investigation’. Implicit in this description is the possibility that Hurley

would not come under investigation at all, or that some other officer might become the

primary subject of investigation.

497. A consideration of the alternatives advanced by the CMC Review highlights their

reliance upon hindsight. Leafe supplied food and had dinner with Arthy and the forensic

team on the same night. Leafe had also been directly involved in the custody and

management of Mulrunji. Although the initial versions to the investigators would

indicate that his involvement was less than Hurley’s, he could not be excluded as an

officer under investigation. Nevertheless, the CMC Review accepts uncritically the fact

that he dined with members of the investigation team. The fact that Leafe also provided

meals to the investigation team highlights that logistics were an issue.454

498. Similar objections could also be made as to the propriety of dining with other members

of the police contingent stationed on Palm Island. Another of the named alternatives,

Steadman, later proved to be an important witness. 455 The further named officer,

Tonges, was for a time implicated in the events, though it seems mistakenly.456 Whilst

the material is equivocal on this point, it seems that, with the exception of Hurley and

Leafe, all of the police contingent lived in the police barracks.457 Consequently, only

one of the other officers need have been implicated to tarnish the whole of the barracks

as an alternative. This is assuming that the barracks was even capable of

accommodating the extra diners, an assumption that might be subject to some

doubt.458 The investigators were not in a position to make these distinctions at that

452 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 77. 453 See above [85]. 454 Inspector Interview with Senior Sergeant Lloyd Arthy (Northern Regional Office, Townsville 19 October 2007). 455 Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 658-679. 456 Detective Inspector Ken Webster, Interview with Acting Senior Constable Benjamin Tonges (Townsville Regional Police Office, 8 December 2004), [136]-[144]. 457 Cf Robinson’s evidence to the inquest before the Acting State Coroner, Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 1324. 458 Ibid.

320

early stage. Again, the differential consideration of Hurley’s involvement demonstrates

the benefit of hindsight.

499. The CMC completed its own investigation report in March 2008, which in part

considered the taking of a meal at Hurley’s place in the context of an investigation into

Robinson. On this matter, the CMC concluded:





500. In making my determination in relation to this allegation I have considered my findings

with respect to Webber and Kitching. Having regard to the material before me, I am not



501. I do not propose to commence proceedings against Robinson under the provisions of

Part 7A of the Police Service Administration Act 1990.


502. The third complaint against Robinson is addressed in Ch 9 under the heading

‘Allegation 8: Lack of support to Indigenous witnesses’. A number of key issues were

suggested as arising in this context, namely:

• What action, if any, was taken by Kitching, Webber, Williams and

Robinson to comply with the OPM requirements?

• What reasons, if any, were given to explain the lack of support persons

offered and provided to the Indigenous witnesses?

• What difficulties, if any, were experienced by Kitching, Webber, Williams

and Robinson in understanding the Indigenous witnesses?

503. The CMC Review assert:

Robinson was also required to comply with the general provisions of section

1.17 of the OPM in relation to conducting the investigation impartially and

ensuring statements from witnesses were comprehensive, and with the

459 Memorandum of Inspector K J Webster to Director, Misconduct Investigation, Crime and Misconduct Commission, 14 March 2008, 119.

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requirements of Section 6.3.6 concerning the special needs of Indigenous

witnesses.460

504. In the context of Robinson’s conduct, the CMC Review alleges Robinson prepared a

statement by Roy Bramwell which was inconsistent with Bramwell’s earlier interview

and more favourable to Hurley. He also made no provision for the special needs of

Bramwell, an Indigenous witness.

505. Kitching was interviewed by the IRT in relation to Bramwell’s allegations:

Um so did you have a view as to the credibility ah at that

time on the Saturday morning, um ah as to the credibility of

BRAMWELL's allegations?

Kitching: Yes I did. The version that was provided to me by

BRAMWELL in my opinion um BRAMWELL could not have

possibly seen what he stated he, he, he gave in his

evidence in that, by that I mean he stated that HURLEY ah

had been assaulting the deceased in the

police station, okay. Um now the reasons why ah I indicate

that um his evidence or his information wasn't credible was

the fact that there was a UI filing cabinet UI his path. From

where he was seated in the police station, where this

incident allegedly took place he could not have possibly

seen what he said he saw. Now that was a catalyst to why

the re-enactments were started. Okay um in my opinion the

evidence of BRAMWELL during the investigation was his

ver - in his version lacked credibility, was untruthful

however at no time did I cross-examine his version during

the investigation. I merely sought out to clarify his version

and all the information provided by BRAMWELL ah was to

form part of the coronial investigation. My opinion is

supported in the fact that during the coronial inquest

BRAMWELL provided at least three differing versions of

events um and admitted during questioning by counsel that

he in fact lied during the inquest. There are no

recommendations made by the acting Coroner in relation to

that issue. My opinion was further supported during the trial

of Senior Sergeant Chris HURLEY when the senior counsel


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for prosecution, Peter DAVIS stated to the trial judge that

the evidence of Roy BRAMWELL bordered on the farcical

when explained to the court why BRAMWELL was not

called as a witness. The trial judge requested this

information from the prosecution on the request of the jury

as to why the witness BRAMWELL was not called. And ah

that's the way I saw the evidence of BRAMWELL.

Mmm.

Kitching: I certainly accepted what he had told me and I, and I

sought out to investigate further about his version.461

506. The CMC Review accepts the accuracy of the IRT’s observation that the OPM did not

place an obligation on the investigators to use a support person, albeit qualifying it is a

technicality.462 I note that the provisions of OPM 6.3.6 are discretional. I have viewed

the re-enactment videos of Roy Bramwell conducted by Williams and Webber 463 in

order to make an informed decision with respect to any special needs. I make the

observation that Bramwell speaks quite clearly and appears to be comfortable in the

company of the investigating police to the extent he role plays as Mulrunji with Webber

as Hurley. Webber makes considerable physical contact with Bramwell during the

course of the re-enactment. Bramwell did not exhibit any discomfort in his body

language or difficulty understanding what is being asked of him to suggest he falls



507. Prior to the video re-enactment with Williams and Webber, Bramwell was interviewed

by Kitching and Robinson.464 A type-written statement was taken from Bramwell by

Robinson at 10.52am. The CMC Review asserts that the statement taken by Robinson

‘was inconsistent with Bramwell’s interview and more favourable to Hurley. He also

made no provision for the special needs of Bramwell, an Indigenous witness’. 465 I

accept Bramwell provided conflicting versions of what he claims to have witnessed in

the accounts provided to police investigators and at the subsequent inquest. The

Prosecutor at Hurley’s subsequent trial, Mr Davis, considered Bramwell’s credibility as

461 Inspector Interview with Senior Sergeant Raymond Kitching (Townsville Police Station, 1 August 2007), Transcript Tape 1 [592]-[637] (emphasis added). 462 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 121. 463 Inspector Warren Webber, Re-enactment Interview with Roy Bramwell, (Palm Island Police Station, 20 November 2004). 464 Senior Sergeant Raymond Kitching, Interview with Roy Bramwell (Palm Island Police Station, 20 November 2004) conducted from 8.15am-8.27am. 465 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 168.

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a reliable witness. He explained the reason why the Crown did not call Lloyd Bengaroo

and Roy Bramwell as witnesses:

MR DAVIS: Yes. And - and what we really say about that is that - is that

given that Bengaroo, on at least Steadman's version, was

in a position to see - I - I should also say that Steadman is

probably a witness who the jury would accept. He seemed

to be a witness who was doing his best to tell the truth, and

given the fact that the jury have mentioned Bengaroo's

absence, it might require a slightly stronger direction than

usual to ensure that there is no speculation. And clearly,

from what was - what the jury said on Friday, there is some

suspicion that something's been kept from them. We

overnight prepared a - a further examination of the various

pieces of evidence that have been given by both Bengaroo

and Bramwell, and the direction should be in relation, we

say, to both Bramwell and Bengaroo.

I - I will hand these up, not because I necessarily want your

Honour to - to go through them, but I do want to

demonstrate that the Crown has taken it's obligations in this

case to call all relevant witnesses extremely seriously and

the main reason why Bengaroo is not being called is

because Bengaroo gave different versions at different

times, in the inquest and in - and during interviews with

police. He was then interviewed by - by my instructing

solicitor and Mr Haughton and the version that he came up

with ultimately that he signed off on was that he did see the

fall and he saw that the accused did not fall on top of and

did not touch Mulrunji.

So of course we're then left in a situation where that

evidence is directly contradicted by the uncontested

medical evidence; it could not have happened that way and

Mr Bengaroo's case - Mr Bengaroo's version is inconsistent

with both the defence and the Crown cases. So he - just no

point in calling him. Apart from that I really have no

confidence that I have any idea what he would say when

he was sworn and - and gave his evidence.

Mr Bramwell's in a even worse situation. His evidence at

the inquest bordered on the farcical and statements he's

324

made after that made it worse. So I will - I'd like those two

documents to be part of the record but other than that-----

HIS HONOUR: All right. Well, I'll mark the document headed "Roy

Bramwell" "E" for identification and the document headed

"Lloyd Bengaroo" "F" for identification.466

508. During my deliberations, I carefully observed the extent of communication difficulties


concerns were raised in other fora. For example, in the the inquest before the State

Coroner, Counsel Assisting the Coroner raised this issue with respect to Ms Snyder.

The State Coroner determined the evidence could be given without assistance.467 No

Indigenous witness was provided with a support person in the inquest before the State

Coroner. By contrast, I note that support was given to Indigenous witnesses in the

inquests conducted by Ms Clements and Mr Hine.

509. In the trial of R v Hurley it would appear the same Indigenous witnesses that appeared

before the Acting State Coroner gave evidence without the assistance of a support

person.468 As was true of the first inquest, no Indigenous witness was provided with a


to that decision.469 I can only conclude that these persons were assessed as not falling




necessarily absolve the alleged failings by the initial investigating officers by not

properly applying Service policy and procedures. However, it ably demonstrates that

the matter is not simply resolved by recourse to the applicable criteria. The decision

was a discretionary one. Whilst I accept that the discretion may have been exercised

differently, I do not accept that the decision was unreasonable.

511. I accept that Mr Davis’ assessment of Bramwell as a witness was accurate. 470

Bramwell’s conduct during the course of the investigation and his later evidence at the

inquest convinces me that he was an unreliable witness. Therefore, it is reasonable to

466 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395 (emphasis added). 467 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Palm Island), State Coroner Barnes, 28 February 2005), 111. 468 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007; Florence Sibley (53), Edna Marie Coolburra (65), Gerald Brian Kidner (78), Verna Maree Snyder (90) and Gladys May Nugent (157) 469 Cf Supreme Court of Queensland, Equal Treatment Benchbook (Supreme Court of Queensland Library, 2005), ch 9. 470 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395 (emphasis added).

325

conclude that Bramwell provided a version of events to Robinson which was

inconsistent with his earlier interview with Kitching and Robinson. Robinson is obligated

to type the words provided by Bramwell in his statement. I do not believe it is the

responsibility of Robinson to determine which version provided by Bramwell is the more

truthful or accurate. The statement and recorded interview would be available for the

Coroner’s consideration, a fact which Robinson must be taken to have known.

Discrepancies in the versions could then be explored in the Coroner’s inquest while the

witness Bramwell was under oath.

512. In making my determination, I have considered my findings with respect to Williams,

Webber and Kitching. Having regard to the material considered by me I am not



513. I do not propose to commence proceedings against Robinson under the provisions of

Part 7A of the Police Service Administration Act 1990.

Investigation Review Team (the IRT)

Allegations Made Against the Members of the IRT

514. The CMC Review was critical of the report prepared by the IRT. The CMC Review

concluded ‘that the conduct of the members of the IRT [was] sufficiently serious to

warrant consideration of disciplinary proceedings’.471 The basis for that conclusion is

set out in Chapter 13 of the CMC Review.

515. The criticisms of the CMC Review were distilled into nine broad allegations.472 They

were:

1. Failing to hold officers accountable

2. Justifying inappropriate conduct

3. Suggesting explanations for the officers’ conduct not advanced by the

officers themselves

4. Asking a series of questions intended to elicit a specific desired response

5. Asking questions which create a perception of bias

471 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 171. 472 Ibid 172-4.

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6. Accepting evidence without testing it

7. Lack of thoroughness

8. Lack of diligence

9. Inadequacy of their findings in relation to the conduct of the investigating

officers.

516. Each allegation was followed by a generalised discussion of the basis for the

allegation. Some of this discussion was immediately referrable to portions of the CMC

Review in the earlier chapters. However, the CMC Review was not structured around

the allegations relating to the IRT but rather, around the issues identified by the IRT.

Consequently, there was limited direct reference to the basis upon which the

allegations were constructed. Even more difficult was distinguishing the basis upon

which some of the allegations are said to characterise a different complaint. A cursory

consideration of the allegations suggests that there is considerable overlap. Some

assistance was found in an electronic index provided by the CMC. The electronic index

listed each of the allegations, immediately followed by a set of references to material

which ostensibly constituted the relevant proofs. Despite these criticisms, I have

maintained the CMC’s taxonomy of allegations.

Failing to hold officers accountable

517. The CMC Review alleged that the IRT ‘failed to hold the officers involved in the initial

QPS investigation accountable for their conduct’. 473 The discussion that immediately

followed this allegation is reproduced below:

The IRT failed to hold the officers involved in the initial QPS investigation

accountable for their conduct. The IRT implicitly acknowledge that

Robinson’s involvement compromised the integrity of the initial QPS

investigation, but failed to hold anyone responsible for the decision to involve

him474 [Allegation 1: Officers serving on Palm Island involved in investigation].

They focused on the irrelevant issue of the credibility of Bramwell’s evidence

rather than the purpose of the Form 1 and failed to hold Kitching responsible

for his non-compliance with his obligations as the investigating officer

[Allegation 7: Form 1].

473 Ibid 172. 474 Footnote 669 in the CMC Report notes: ‘We note that the IRT recommended the Acting Chief Superintendent be chastised and receive guidance in relation to a number of specific issues, including his failure to give directions or advice to Webber or Kitching about the role of Robinson or how Robinson was to be managed’.

327

The IRT saved their harshest criticism for the Acting Chief Superintendent;

they recommended that he be chastised and given guidance on five grounds

in relation to a number of the allegations. Yet the Acting Chief Superintendent

was not present on Palm Island during the initial QPS investigation. He had

no specific obligation under the OPM in relation to the investigation of a death

in custody; in fact the IRT states it could ‘find no policy, order, procedure or

instruction that the Acting Chief Superintendent has failed to comply with’.

The IRT relies on the Acting Chief Superintendent’s job description as the

basis for recommending that he be chastised and receive guidance.475 By

contrast, Webber, Williams, Kitching and Robinson were all present on Palm

Island and had clear obligations under the OPM in relation to investigating a

death in custody and interviewing Indigenous witnesses. We also note that

the IRT does not refer to the job descriptions of any of these officers. It is not

made clear by the IRT why they considered the Acting Chief

Superintendent’s failure to give advice or directions was more serious than

the failures of officers who were present on Palm Island and had specific

responsibilities under the OPM.

518. The summary suggests the particular matters upon which the allegation was founded

were the failure to hold anyone responsible for the decision to involve Robinson in the

investigation and the failure to hold Kitching responsible for his non-compliance with his

obligations as the investigating officer in relation to the completion of the Form 1. The

CMC Review appears to have rejected the IRT view that the conduct of Acting Chief

Superintendent was censurable.

519. The CMC Review listed three proofs to support this allegation, the first of which was

taken from the IRT report relating to Webber:

ROLE OF THE SUPERVISOR

Acting Assistant Commissioner and Acting Chief Superintendent, as well

as A/Supt Wilson (acting District Officer) knew that D/Sgt Robinson was

going as part of the investigation team.

The Ethical Standards Command and the State Coroner’s Office had been

advised that a team was going to the Island to investigate the death in

custody.

FINDINGS

475 Footnote 670 in the CMC Report notes ‘We note that the IRT does not put the specifics of the job description to the Acting Chief Superintendent during his interview’.

328

Given D/Sgt Robinson’s association with S/Sgt Hurley it would have clearly

been a preferred course to exclude him from the investigation but to have him

assist with local knowledge only. D/Insp Webber acknowledges this (at p 19

of 37, ROI 1.8.2007): “in hindsight…we probably would have um ditched one

of the other people on the plane and put another investigator on the plane to

um, to assist Kitching”.

D/Inspector Webber stated that D/Sgt Robinson’s involvement was

necessary as investigators needed someone to assist that had local

knowledge. It is also clear that D/Inspector Webber was in charge of the

investigation team on the Island and as such was responsible in a general

sense as to the role each officer was given.

Investigators were placed in an unenviable position. It was crucial to obtain

as much information as quickly as possible and to do so required local

knowledge. Anyone with this local knowledge also had a relationship, in

some form or another, with S/Sgt Hurley.

Both officers relieving in the role of Chief Superintendent and Assistant

Commissioner of the Northern Region knew that D/Sgt Robinson was part of

the investigation team.

The Service has reviewed its practices with respect to this type of incident.

Even after this review, any investigator whether from the QPS or the CMC,

and even if assisted with ATSI or other suitable support persons, will require

the assistance of someone with local knowledge if an investigation is to be

thorough. This then infers that the test for investigators is how to manage the

use of local resources to ensure the investigations remain, and are seen to

remain, independent.

Investigators were also faced with the logistical problem of resourcing

investigations and the taking of statements. In this instance D/Sgt Robinson

was used as there were little or no other practical solutions available to

D/S/Sgt Kitching. Had another officer been available to assist with

investigations, and D/Sgt Robinson used solely to assist with local knowledge,

increased confidence in the integrity of the process would have followed.

Having said this, only a limited number of officers could be sent to Palm

Island quickly and D/Inspector Webber was liaising with the family of the

deceased while D/S/Sgt Kitching took primary responsibility for the

investigation.

329

Competing interests faced investigators and police managers: the need for

timely response and timely evidence gathering verse the need for the

process to be seen to be as independent as possible. The Service has

acknowledged this problem in its policy review so that future investigations of

this kind maintain as much independence as possible, with future incidents to

be managed by the ESC.

RECOMMENDATION

D/Inspector Webber has acknowledged that in hindsight the role taken on by

D/Sgt Robinson went too far and that he should have been used only to

obtain local knowledge. This should be acknowledged and for the purpose of

formality only, D/Inspector Webber should be provided with guidance

pursuant to section 11 of the Police Service (Discipline) Regulation 1990.476

520. The second proof was taken from the IRT report in relation to Kitching:

SUMMARY – ALLEGATION 1 (The Form 1)


A separate report relates to S/Sgt Kitching’s supervisor for this incident,

D/Inspector Webber. D/Inspector Webber did not think to have the Roy

Bramwell allegation added to the Form 1 and was of the view that there was

no deliberate intent to withhold information from the pathologist. He assumed,

based on experience, that D/S/Sgt Kitching would have informed the

pathologist conducting the post mortem examination about the Roy Bramwell

allegations either before or during the post mortem.

No other senior officer thought to ask specific questions directly related to the

Roy Bramwell allegations being included on the Form 1.

The unavailability of a pathologist caused a delay in investigators being

provided with information as quickly as would have been desirable. There

were 4 days between the time of death and the initial post-mortem

examination.

FINDINGS

476 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [89]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 11-12 (Allegation 1: Officers serving on Palm Island involved in Investigation).

330

Dr Lampe does not say that D/S/Sgt Kitching did not tell him about the Roy

Bramwell allegations; however, Dr Lampe did not make any mention of the

allegations in his notes and does not remember being told about them.

D/S/Sgt Kitching was initially of the view that he would have told Dr Lampe

about the allegations, but later conceded that he may not have. He indicated

that the Form 1 had been completed prior to the allegations being made, that

the allegations had little if any credibility and that had anything occurred

during the post mortem examination he would have told the pathologist about

the findings.

D/S/Sgt Kitching knew that the Ethical Standards Command and the Coroner,

and possibly the Crime and Misconduct Commission would review this matter.

He also knew that these agencies knew, or would have been informed about

the allegations as a matter of routine. Given this, it would seem illogical that

D/S/Sgt Kitching would attempt to deceive Dr Lampe by not providing the

information.

This then leaves allegation 1 at either duty failure or negligence, or if not this,

an issue related to judgement and/or experience.

The test provided by Service policy at the time stated that the Form 1 should

be completed as soon as possible and implied that additional or relevant

information should be provided to the pathologist as soon as possible:

“In cases where additional or relevant information comes to hand that

may assist a government pathologist in determining a cause of death

at a time prior to an autopsy being conducted, investigating officers

are to contact the pathologist as a matter of urgency and provide that

information on a Supplementary Form 1.”

Service policy also required the investigating officer to have the Form 1

forwarded to an officer in charge for forwarding to the Coroner.

The test provided by Service procedures (section 8.4.8 of the Operational

Procedures Manual) now is that: “It is essential that the 'Précis of statements'

section of Part 1 of the Form 1 be completed with as much detail as possible.

The information contained in this section of the Form 1 assists in determining

the need for an inquest and the extent of examination in an autopsy”. Service

policy now places a clearer responsibility on an officer in charge to verify the

accuracy of the Form 1.

331

It is clear from the evidence that Dr Lampe did thoroughly and independently

address the issue of assault as a cause of injury or death and that a

significant amount of history was provided to Dr Lampe by D/S/Sgt Kitching.

It is also clear that Roy Bramwell was not a credible witness and that, in the

Investigation Review Team’s view, the re-enactment interview (video

recorded) clearly demonstrates that Roy Bramwell could not have seen what

he alleged.

D/S/Sgt Kitching, although an experienced detective who had investigated

numerous and complex criminal matters, including suspicious deaths, has

never worked at the Homicide Squad, at Ethical Standards Command, nor

has he previously investigated a death in custody. In fact, D/S/Sgt Kitching

had never investigated a police related serious injury in custody. At the time

of the investigation, D/S/Sgt Kitching also had the responsibility of continuing

to manage the Townsville Criminal Investigation Branch.

When asked whether in hindsight he would have mentioned the Bramwell

allegations in the Form 1 Kitching indicated that he would have, but that once

the results of the post-mortem examination were known, he had planned to

provide a detailed précis of statements, which would have included Roy

Bramwell’s, in a supplementary Form 1, to the Coroner. Kitching indicated

that he had done this on many previous occasions and that this was his

standard practice.

The investigating officers were faced with an unknown cause of death that

could have been related to a myriad of possibilities (e.g. natural causes,

poisoning). The post-mortem examination occurred three days after the Roy

Bramwell allegations had been made, when ordinarily a post-mortem

examination would have been completed the day after death.

RECOMMENDATIONS

On balance, it is the view of the Investigation Review Team that D/S/Sgt

Kitching should have made mention of the Bramwell allegations, even if only

to the extent that they were untested or uncorroborated. This would have

allowed the pathologist to comment more specifically on those allegations at

the time of post-mortem examination if he wished.

However, for a disciplinary sanction to be imposed, a Prescribed Officer

would need to be satisfied that Kitching failed to provide enough detail in the

Form 1 to allow the pathologist to make sufficient examinations. At that stage,

332

it was clear that a variety of possible causes of death had been presented by

investigations. It is also clear that the issue of assault as a cause of death

was examined by Dr Lampe and in subsequent post-mortem examinations. It

is also clear that Roy Bramwell was not a credible witness.

The Service has also reviewed its policies surrounding investigations of this

nature directly as a result of the matters raised at the Inquest, demonstrating

a need for improvement or change generally.

At an individual level, D/S/Sgt Kitching has also admitted that he has learnt

form this matter. As such, it is the view of the Investigation Review Team that

this allegation should be dealt with by D/S/Sgt Kitching being provided

guidance pursuant to section 11 of the Police Service (Discipline) Regulation

1990. This guidance should focus on the need for any allegation of

misconduct related to a death or serious injury in custody to be provided to a

pathologist or investigating medical practitioner unless advice to the contrary

is provided by a senior commissioned officer, the ESC or CMC. As part of

this guidance process, D/S/Sgt Kitching’s supervisor should consider a

planned process of development that exposes D/S/Sgt Kitching to exposure

to internal investigations that involve Service wide policy issues.477

521. The third and final proof was taken from the report into the Acting Chief

Superintendent:

Superintendent job description required him to ensure operations

were effective and efficient; and to be responsible for effective planning,

liaison, consultation and interaction with other officers to achieve desired

outcomes.

It can be argued that Superintendent failed to overview and command

a major event and failed to ensure operations were effective and efficient. It

could be argued that Superintendent failed to effectively plan, liaise,

consult and interact to achieve a desired outcome in that he did not, or did

not cause directions or advice to be given to:

1. D/Inspector Webber or D/S/Sgt Kitching about the role of D/Sgt Robinson

or how Robinson was to be managed;

2. any of the investigation team about control of the scene and its

examination or about the investigation proper;

477 Ibid Sheet 2 [90]. The index references Report of Investigation Review Team, Queensland Police Service, 'Kitching', 2008, 12-14 (Allegation 7: Form 1).

333

3. any of the investigation team or S/Sgt Hurley about notification of the

death of to next of kin;

4. S/Sgt Hurley about the management of the Palm Island Station and the

scene from the time of death;

5. the investigation team with respect to logistical support, in particular the

provision of meals, accommodation and transport.

The response to and investigation of the death of

was not, in totality, at a standard that was a “desired outcome”

as provided by Superintendent job description. However, it is clear

that many parts of the response to and the investigation of the death were at

a standard that could be described as a desired outcome, as much of the

evidence that could be gathered by any police investigation in a period of a

few days, was provided to the Coronial Inquest and used in the criminal trial

of Senior Sergeant Hurley. This evidence included the identification of

relevant witnesses, initial interviews and then video recorded re-enactments

with key witnesses, scientific examination, and reconstruction of events and

further identification of witnesses from the scene of arrest, through to the

scene of death. At the same time, the State Coroner and the CMC, as part of

their normal legislative role, were provided with briefs, in varying forms, of the

police investigation.

It is in the Investigation Review Team’s opinion, reasonable that

Superintendent assumed that the Detective Inspectors and other staff

he, and others in the case of the ESC, had tasked would operate at a certain

level of competency. Many of the issues this investigation has examined

relate to issues of judgement and at times, supervision. It is at this level that

the role of Acting Chief Superintendent should or could have improved

outcomes.

In the Investigation Review Team’s opinion, the key to commencement of

disciplinary proceedings for a charge such as this is focused on the words

“effectively plan…to achieve a desired outcome”. There is no doubt that

Superintendent did take part in liaison, consultation, interaction and

planning. The test is whether the part he took was ineffective to the extent

that he demonstrated “(a) unfitness, incompetence or inefficiency in the

discharge of the duties of an officers’ position” (s. 9, Police Service

(Discipline Regulation) 1990).

334

Superintendent has continued to perform the duties of

C/Superintendent for lengthy periods under the supervision of at least three

different more senior officers, without evidence to the contrary it must be

assumed that these officers have viewed his performance as satisfactory.

On balance, the Investigation Review Team is of the opinion that

Superintendent should be chastised and given guidance with respect

to command and control, and effective planning. Specifically, Superintendent

should have ensured policing operations were effective and efficient

in the response to and investigation of the death in custody of

by causing or giving directions or advice to:

1. D/Inspector Webber or D/S/Sgt Kitching about the role of D/Sgt Robinson

or how D/Sgt Robinson was to be managed;

2. all of the investigation team about control of the scene and its

examination or about the investigation;

3. all of the investigation team or S/Sgt Hurley about notification of the

death of to next of kin;

4. S/Sgt Hurley about the management of the Palm Island Police Station

and the death in custody from the time of death;

5. the investigation team with respect to logistical support, in particular the

provision of meals, accommodation and transport.

Further, the Investigation Review Team is of the opinion that Superintendent

should not be provided the opportunity to relieve at Chief

Superintendent level until this guidance has been provided. NOTE: Superintendent has retired from the QPS.478

522. There is little merit in this allegation as it is framed. The allegation that the IRT failed to

hold officers involved in the initial QPS investigation accountable, overlooks some

fundamental propositions. Firstly, it assumes that the IRT was responsible for holding

the officers accountable. Clearly, this is not the case. The IRT made recommendations.

This was their charter. It was never the case that the IRT was responsible for ‘holding

the officers accountable’. Any decision to take action against the officers was ultimately

an issue for some other authority. The IRT was responsible to the Commissioner in

478 Ibid Sheet 2 [91]. The index references Report of Investigation Review Team, Queensland Police Service, 2008, 56-58 (emphasis in original).

335

accordance with their instructions. 479 Moreover, the IRT was aware that their report

would be overviewed, not only by the Senior Executive but by the CMC, each of which

would consider issues of accountability. Again, determining the question of

accountability clearly was not within the province of the IRT.

523. The IRT recommended guidance in respect of Webber, Kitching and chastisement and

guidance with respect to under s 11 of the Police Service (Discipline)

Regulations 1990. That is to say, the IRT recommended that the officers referred to in

the three proofs offered in support of this allegation, should be subject to disciplinary

processes. The real complaint, if it in fact can be so described, appears to be that the

CMC Review did not agree with the recommendations of the IRT as to the level of

disciplinary action. Frankly, that is their prerogative. However, this does not constitute a

proper basis for discipline against the members of the IRT, at least in its own right. As

was already noted, there is significant overlap in the allegations. The first three

allegations appear to be closely related and realistically, describe a single complaint

rather than three separate matters. Consequently, I will return to this allegation later in

my decision.

524. The IRT Executive Summary notes:

S/Sgt Hurley was interviewed by the CMC about these matters in September

2007 and a separate report was provided to the A/C ESC which

recommended guidance be provided to a number of officers including S/Sgt

Hurley.

525. The CMC Review’s failure to understand the IRT censure of appears to relate to

a fundamental failure to grasp the command and control structure of the QPS. The role

of the senior executive of the QPS is not generally described by reference to policy

documents of the nature of the OPM. There is an expectation that members of the

senior executive appreciate their responsibilities set out in their job description, namely

to be responsible for the ‘effective planning, liaison, consultation and interaction with

other officers to achieve desired outcomes’. Those desired outcomes are expressed in

macro policy documents such as the QPS Strategic Plan, and their implementation and

achievement is discussed and monitored through meetings of the senior executive

along with other formal and informal mechanisms. The diverse nature of the

responsibilities of the senior executive defies complete or even substantial description

in more specific policy documents such as the OPM. The role of the senior executive in

the management of individual policing operations within their area of control will

necessarily depend on the nature of the incident. Routine operational activity should

479 Memo from Commissioner to Deputy Chief Executive (Operations), Director, Office of the Commissioner and Assistant Commissioner, Ethical Standards Command, 19 December 2006.

336

not require any direct supervision by senior management. However, the more

significant the event, the more likely that the involvement of senior management will be

demanded. A death in custody undoubtedly qualifies as a serious incident.480

ongoing briefings in this incident indicate that this was a matter in which he was

involved. It was appropriate to conclude that bore responsibility for the overall

conduct of the investigation. The recommendation of the IRT was consistent with the

expectations of the role of the senior management of the region.

Justifying inappropriate conduct

526. The CMC Review alleged that the IRT justified inappropriate conduct by the initial

investigators. This allegation appears to be a reformulation of the first. The first proof

offered for this allegation is part of the same information used as evidence for the first

allegation.481 The fifth proof for this allegation is the same as that used for the first

allegation, although taken from different documents within the IRT Review.482 The other

proofs appear to support the generalised discussions following both the first and

second allegations.

527. Despite the observation that the allegations are based on essentially the same

information, the reformulation of the allegation changes the context of the consideration

of those facts. The discussion immediately following the allegation in the CMC Review

is set out below:

The IRT justified the conduct of the initial QPS investigation team on doubtful

grounds. They made statements — for example, that anybody with local

knowledge had a relationship with Hurley — which obscure the issues and

misrepresent the actual situation faced by the officers [Allegation 1: Officers

serving on Palm Island involved in investigation].

To justify the conduct of the investigation team, the IRT made a finding that

‘in practical terms no investigation had commenced’ in relation to the failure

to record the conversation between Hurley and the investigators on the trip

from the airport to the police station, which is irrelevant to the issue

[Allegation 2: Hurley transporting investigators].

The IRT made comments blaming senior officers for failing to provide

appropriate logistical support, including that Webber did not find out the meal

was at Hurley’s until he got there and that it would have been an

inconvenience for Robinson to serve the meal somewhere other than

480 Cf Operational Procedures Manual ss 16.24 and 1.17. 481 Cf Crime and Misconduct Commission, Palm Island Index, 2010, Sheet 2 [89] and [94]. 482 Cf Ibid Sheet 2 [91] and [98].

337

Hurley’s residence. Once again these issues are irrelevant [Allegation 3:

Dinner at Hurley’s].

The IRT proffered a number of spurious reasons why in their view it was

‘understandable’ Webber and Williams did not check the Form 1 — for

example, a variety of causes of death were examined by the investigators, Dr

Lampe’s examination did consider assault [Allegation 7: The Form 1].483

528. The first proof was taken from the report relating to Webber.484 As noted above, this

evidence was also relied upon to support the first allegation:

D/Inspector Webber stated that D/Sgt Robinson’s involvement was

necessary as investigators needed someone to assist that had local

knowledge. It is also clear that D/Inspector Webber was in charge of the

investigation team on the Island and as such was responsible in a general

sense as to the role each officer was given.

Investigators were placed in an unenviable position. It was crucial to obtain

as much information as quickly as possible and to do so require local

knowledge. Anyone with this local knowledge also had a relationship, in

some form or another, with S/Sgt Hurley.

Both officers relieving in the role of Chief Superintendent and Assistant

Commissioner of the Northern Region knew that D/Sgt Robinson was part of

the investigation team.

The Service has reviewed its practices with respect to this type of incident.

Even after this review, any investigator whether from the QPS or the CMC,

and even if assisted with ATSI or other suitable support persons, will require

the assistance of someone with local knowledge if an investigation is to be

thorough. This then infers that the test for investigators is how to manage the

use of local resources to ensure the investigations remain, and are seen to

remain, independent.

Investigators were also faced with the logistical problem of resourcing

investigations and the taking of statements. In this instance D/Sgt Robinson

was used as there were little or no other practical solutions available to

D/S/Sgt Kitching. Had another officer been available to assist with

483 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 172-3. 484 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [94]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 12 (Allegation 1: Officers serving on Palm Island involved in Investigation).

338

investigations, and D/Sgt Robinson used solely to assist with local knowledge,

increased confidence in the integrity of the process would have followed.

Having said this, only a limited number of officers could be sent to Palm

Island quickly and D/Inspector Webber was liaising with the family of the

deceased while D/S/Sgt Kitching took primary responsibility for the

investigation.

Competing interests faced investigators and police managers: the need for

timely response and timely evidence gathering verse the need for the

process to be seen to be as independent as possible. The Service has

acknowledged this problem in its policy review so that future investigations of

this kind maintain as much independence as possible, with future incidents to

be managed by the ESC.

RECOMMENDATION

D/Inspector Webber has acknowledged that in hindsight the role taken on by

D/Sgt Robinson went too far and that he should have been used only to

obtain local knowledge. This should be acknowledged and for the purpose of

formality only, D/Inspector Webber should be provided with guidance

pursuant to section 11 of the Police Service (Discipline) Regulation 1990.

529. The CMC Review suggests that the IRT conclusions ‘obscure the issues and

misrepresent the actual situation faced by the officers’.485 This criticism is apparently

based on the discussion at pages 56-7 of the CMC Review where a number of

alternatives to the use of Robinson were suggested:

In the CMC’s view, there were sources of local knowledge other than

Robinson available to the investigation team, and finding one would not have

delayed the investigation as has been argued. There is no information that

suggests that the investigation team (or the IRT) gave any real consideration

to alternative sources of local knowledge, such as:


and had been stationed there since April 2003

• the list of local ATSILS contacts, support persons and interpreters which



339

• the Community Justice Group (who Robinson said were present when

witnesses signed their statements)



have been able to identify appropriate support people, and may have


530. The alternatives are clearly the product of reflective hindsight. The inherently

impractical character of these alternatives supports rather than contradicts the IRT

conclusions that ‘little or no other practical [alternatives were] available’.487 The further

comment that ‘other officers on the island at the time were not on duty and there is no

suggestion that they were in any way involved with the circumstances of Mulrunji’s

death’ 488 fails to consider the then known circumstance. At the time of engaging

Robinson, the investigators had no way of knowing which officers might become

significant in the investigation.489 For example, Steadman was not on duty but it was

later discovered that he was an eyewitness to some of the events. Webber involved

Robinson in part because Robinson was not on Palm Island and so could not be

implicated in the death. The same could not be said for other officers, including

Tonges.490 Until the investigation could be advanced, there was no real way of knowing

who might be involved.491 The decision not to involve a person who had been on Palm

Island at the time of the incident was the result of an undeniably practical consideration.

531. The suggested use of ATSIL representatives and community representatives was also

problematic. The investigators would have had very limited control of any of those

persons. None of these people would be bound to maintain confidentiality or be subject

to direction or control. By contrast, Webber and Kitching were entitled to expect that

Robinson would act professionally and, in any event, was subject to direction. The use

of ATSIL lawyers was even more impractical since a lawyer has an overarching duty to

any clients rather than to the police investigation.492 The cross cultural liaison officer

486 Citations omitted. 487 Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 12. 488 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 57. 489 Cf Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Tape 2 Transcript [52]ff. 490 Significantly, at least at the time of his interview with the CMC on 8 December, the CMC had information that Tonges may have been present at the Palm Island Police Station when Mulrunji was removed from the police vehicle by Hurley, presumably on the basis of the statement given by Florence Sibley. See Inspector Ken Webster, Interview with Acting Senior Constable Ben Tonges (Mundingburra District Office, 8 December 2004), [136]ff. 491 For example, Steadman was not interviewed until 8 December 2004 and presumably, not identified as a witness until about that time. 492 See, eg, Spector v Ageda [1973] 1 Ch 30, 48.

340

may well have identified potential support persons, many of the same people identified

by the CMC Review, but for the reasons just outlined, their use was impractical.

532. The CMC Review’s further discussion does not assist. On page 57, the CMC Review

said:

However, there is a significant difference between someone who merely has

a working relationship with Hurley or someone who knows Hurley from living

on Palm Island and someone with a personal friendship.

It was also argued that Robinson was the most appropriate person to provide

local knowledge, as he was not present on Palm Island at the time of

Mulrunji’s death, and therefore was the only police officer who was

completely independent. However, other officers on the island at the time

were not on duty and there is no suggestion that they … were close friends

with Hurley. It would have been preferable to use, for example, Tonges rather

than Robinson (or indeed another source of local knowledge independent of

the QPS).493

533. The proscription of Robinson based on his friendship with Hurley is the product of

knowledge that Hurley’s conduct would later become the subject of direct scrutiny. This

information was not known to the investigators when they selected Robinson. Given the

number of police stationed on the Island and their dependence upon one another in a

social context, it is probable that all of them had some personal friendships with other

police on the island. 494 Had the same test been applied, based on the information

available to investigators at the time, any officer who had a friendship with another on

Palm Island would have been disqualified from involvement. Whilst friendship might not

have been an issue for other officers, every officer except Robinson was in direct line

control of Hurley – they were all subordinates under his immediate supervision. This in

itself is likely to have caused concerns about the impartiality of the investigation. By

contrast, Robinson came under the direct line control of Kitching. In short, whilst I

accept that Robinson was not an ideal choice to assist the investigative team, I do not

accept that there were alternatives which themselves were ideal. More particularly, in

the context of the IRT conclusions, I do not accept that the IRT ‘obscure[d] the issues

and misrepresent[ed] the actual situation faced by the officers’.495

493 Citations omitted. 494 With the exception, perhaps, of Steadman who had only just arrived. For that same reason, he was not suitable for providing local knowledge to the investigators. 495 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 172.

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534. A further criticism made by the CMC Review was that no consideration was made of

Kitching’s appointment:

While the IRT asked the individual officers some questions in relation to

Kitching’s appointment, they did not consider the issue in detail or make any

findings in relation to the appropriateness of Kitching’s appointment. It is not

clear why the IRT did not consider the issue. For the sake of completeness

the CMC has done so.496

535. This matter was not raised in Chapter 13 or referred to in the electronic index. The

inclusion of this discussion at all is bizarre given that, after a brief discussion, the CMC

Review concluded:

The CMC is of the view that under the circumstances, it was acceptable for

Kitching to be appointed …

While in the circumstances Kitching was an appropriate appointment,

Webber seems not to have recognised his responsibility for ensuring the

appointment of an independent senior investigator, but, in effect, relied upon

Kitching.497

536. It is not entirely clear what the complaint is. It appears that the criticism is that Webber

did not articulate the process of selecting Kitching and the IRT did not ask him to. Why

it was necessary to do so is difficult to understand. The CMC Review acknowledged

that Kitching was an appropriate appointment. The discussion in the CMC Review

appears to serve no purpose other than to take an opportunity to impugn Webber and

the IRT without any evident basis.

537. The second proof in support of the second allegation was taken from the IRT report of

Webber:

ALLEGATION 3 - Hurley transporting investigators.

At page 10 of her findings the Acting State Coroner said:

“It was inappropriate for the officer most likely to be under investigation to be




496 Ibid 59. 497 Ibid.

342


support, but to identify the need and delegate someone else to provide it.”

The Acting State Coroner also made the following recommendation.

Recommendation 33:

The investigation’s appearance of impartiality was further undermined by the

following conduct:-

• it was inappropriate for Hurley to meet the investigating officers at the

airport upon their arrival;

• it was inappropriate for Hurley to drive the investigators to the scene of

Mulrunji’s arrest; and

• it was completely unacceptable for investigators to eat dinner at Hurley’s

house while the investigation was being conducted.

EVIDENCE AFTER INTERVIEWS & INVESTIGATIONS

Contrary to the comments of the Acting State Coroner, no officer from the

Ethical Standards Command had a meal at any officer’s residence as

indicated by the Acting State Coroner.

Nine (9) members of the QPS arrived by plane on Palm Island prior to

1500hrs on Friday 19 November 2004. A decision about the amount and type

of equipment for the scientific and scenes of crime officers had to be taken

due to baggage/hold constraints on the chartered flight. The personal effects

of some officers, in particular the two Tactical Crime Squad officers who had

been sent to assist with the day to day police operations on the Island, also

had to be transported.

D/Inspector Webber was in charge of the investigation team on the Island

and as such was responsible in a general sense as to the role each officer

was given.

Webber did not take any part in organising transport, accommodation or

meals on the Island.

Webber could only recollect that he and Kitching travelled with Hurley to the

station to secure the crime scene. He could not remember which other

officers were in the vehicle.

343

Webber had not spoken to Hurley on 19 November 2004 until he met him at

the airport. Webber indicated that the investigation was about the

circumstances of the death, not an investigation into Hurley; that he had no

preconceptions about the death. He also indicated that to have left Hurley at

the station by himself, in effect guarding the crime scene, while another

officer provided transport, would have been “considerably more problematic”.

Webber could not remember much of any discussions during the trip with

Hurley from the airport to the station, but said there was discussion about the

role the Tactical Crime Squad officers would play as they were there to

perform general duties while local officers were assisting with the

investigation, and there was some discussion about safety on the Island

when it was more generally known that there had been a death in custody.

The day after the death, and the day after initial electronically recorded

interviews had been undertaken with a number of witnesses (Hurley, Leafe,

Roy Bramwell, Bengaroo, Gladys Nugent, Patrick Bramwell, Coolburra,

Gerald Kinder), S/Sgt Hurley transported D/S/Sgt Kitching and a scenes of

crime officer to the arrest scene so that photographs could be taken and

investigations continued.

This approach is a standard method of investigation, irrespective of whether

a police officer is involved in an incident. S/Sgt Hurley had already been

interviewed by D/S/Sgt Kitching and his version of events obtained. This

interview had canvassed matters related to the initial arrest scene.

D/Inspector Williams from the ESC had arrived on the Island and he

accompanied these officers during this process. He saw no need to tape

record the events; he assumed that D/S/Sgt Kitching would take notes of any

relevant conversations. Later that day D/Insp Williams caused video recorded

re-enactment interviews to be conducted with what he saw as key witnesses

(Hurley, Bengaroo and Roy Bramwell).

Webber said he was “bemused” by the Acting State Coroner’s comment

about Hurley taking the investigators to the arrest scene. Webber indicated

that taking Hurley to the arrest scene was an essential part of the

investigative process. Webber did not know if S/Sgt Kitching tape recorded

any conversations with S/Sgt Hurley during the trip, and could not recall if

Kitching was taking notes.

344

Palm Island did not have any infrastructure available that the QPS could have

reasonably used in the circumstances in terms of transporting nine officers

and their equipment.

In normal circumstances, investigators would have little or no contact with

officers involved in similar incidents until such time as they were ready to

interview or record conversations. However, at remote or rural communities

like Palm Island, the logistical reality is that officers involved in the incident

may need to be used.


Inspector Strofeldht stated that he may have given some directions to Hurley

but could not recollect if he did. Strofeldht was of the view that Webber had

responsibility for managing the incident.

No other senior officer could recollect giving directions or advice on this issue.

FINDINGS

Although S/Sgt Hurley was clearly a person of interest, in practical terms no

investigation had commenced when he met officers at the airport. D/Insp

Webber or S/Sgt Kitching could have tape-recorded any conversation with

S/Sgt Hurley, but this type of safeguard would require tape recording of all

conversations from first point of contact with all possible persons of interest

and would present a considerable logistical problem. This type of safeguard

also has limits: it does not stop collusion in totality.

From a practical perspective, a local officer was best suited to providing

transport. Resources on the Island were limited and this presented a specific

problem where officers involved in the incident were required to assist

investigators with logistical matters.

As well, normal investigation process would involve a witness/person of

interest attending a scene to inform investigating officers. In the Investigation

Review Team’s opinion, not to revisit a scene at some stage with a witness in

these circumstances would have bordered on the incompetent. In effect,

taking S/Sgt Hurley to the scene was an essential part of the investigation

process.

In the Investigation Review Team’s opinion, taking S/Sgt Hurley to the scene

at that time was appropriate given the progress of the investigation; i.e. his

version and the version of other initial witnesses had been obtained through

345

electronically recorded interviews and the initial crime scene examination at

the police station had commenced.

The process used in this instance could have been strengthened by a tape

recording of any conversation between investigating officers and S/Sgt

Hurley. The investigators did not electronically record any initial

conversations with any of the witnesses, leaving electronic recording until the

formal interview and statement stage.

There does not appear to be any direct allegation or evidence that anything

occurred during these journeys that had any direct bearing on the

investigation into the cause of death or police custody of the deceased, other

than suggestions that police investigators could have had conversations with

a person of interest/witness that was not recorded. Other opportunities

existed for investigators to have conversations with any person of

interest/witness and at some point a practical decision needs to be made

about when conversations are electronically recorded.

The issue of S/Sgt Hurley actually driving the mode of transport for

investigators is an example, particularly when viewed with other matters, of

lack of transparency and the investigation process not being seen to be

independent.

The Investigation Review Team is unsure as what the Acting State Coroner’s

comment that “If a police officer needs support, it is not the task of

investigators to provide this support, but to identify the need and delegate

someone else to provide it”; refers to specifically. If the Acting State Coroner

is referring to the routine chaplaincy/critical incident support role, it should be

noted that a human services officer was sent with the Investigation team for

this purpose. If the Acting State Coroner is referring to logistical support such

as transport, etc. the issue of the availability of resources arises. This has

been dealt with above.

RECOMMENDATION

This allegation is part of the broader issue of investigations of this nature

being seen to be independent and should be dealt with in terms of guidance

to D/Inspector Webber as part of that broader issue. Where officers involved

in a serious police related incident are used to assist with logistical exercises,

tape recording of conversations with officers directly involved in the incident,

or accurate note taking, is one means of ensuring an investigation is seen to

be independent. Alternately, questioning of officers to clearly outline the

346

nature of any conversations that were had at a later record of interview is

another means of ensuring an investigation is seen to be independent.

From a Service perspective, it is recommended that future training and

management of operations of this nature, consider the need for logistical

support to be considered as a primary component of the planning and

investigative process.498

538. This extract appears to be highlighted to support concerns in relation to three matters:

the transportation of the investigative team when they arrived at Palm Island, the

recording of any conversations that took place during the journey, and the failure to

electronically record the scene inspection on the following day.

Journey from the airport

539. The IRT opined that from ‘a practical perspective, a local officer was best suited to

providing transport’. The reality is that transport for police from airfields in remote

communities is typically arranged by the local police. There are no real options.

Nevertheless, the CMC Review did not accept the IRT’s conclusion on the issue of

transportation. They noted that the ‘IRT’s finding “There does not appear to be any

reasonable alternate method that could have been used to transport the Townsville

investigation team” is not supported by the evidence’.499 In concluding that there was

evidence of other means of transporting the investigative team, the CMC Review

advanced the following alternatives:

Officers Tonges and Steadman were present on the island on 19 November

2004 and had not been on duty at the time of the incident. They could have

picked up the investigation team in the two police vehicles, or one of them

could have made two trips if necessary. We also note the evidence of Mr

David Murray, who was picked up by Tonges and Steadman. Clearly, if two

off-duty officers were able to pick up Mr Murray from the airport, they could

have picked up the investigation team. We note that neither the individual

officers nor the IRT make any mention of the fact that Tonges and Steadman

were present on the island on 19 November 2004.

498 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [95]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 14-16 (Allegation 2: Hurley transporting investigators). 499 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 65.

347

At the very least, it would have been preferable for the officers responsible for

the investigation, Webber, Kitching, and Robinson to have travelled in the

vehicle with Leafe rather than with Hurley.500

540. The CMC Review suggests that ‘the integrity of the investigation was compromised

when Hurley, the officer most likely to be under investigation, met the investigation

team at the airport and transported them to the police station’.501 I note the Acting State

Coroner described it as the investigators making an error of judgment. However, the

ease with which such an error could be made is well illustrated by the CMC Review

alternatives.

541. The CMC Review did not advance any particular reason why Hurley was ‘the officer

most likely to be under investigation’.502 Webber stated that the investigators had not

concluded that Hurley was under investigation. 503 Hurley does not appear to have

thought he was (or would be) the subject of any investigation.504 The information then

available to the investigators would certainly lead to a conclusion that Hurley was ‘a

person of interest’505 in the investigation. However, as was previously discussed, so

were all the officers on the Island. In particular, Leafe, one of the alternatives presented

by the CMC Review, had been intimately involved with the events at the police station.

Another of the alternatives, Steadman, later proved to be an important witness. Tonges

was, for a time, implicated in the events though it seems mistakenly. The investigators

were not in a position to make distinctions at this early stage. Again, the differential

consideration of Hurley’s involvement demonstrates the benefit of hindsight.

Recording conversation from the airport

542. The conclusions relating to the status of Hurley are also critical to a resolution of the

second matter raised under this allegation, the failure to record the conversation on the

trip from the airport. The CMC Review noted:

The investigation’s appearance of impartiality was further compromised by

the failure of any officer to make a record of the conversation which occurred

during this trip.

500 Ibid, 65 (citations omitted). 501 Ibid 64. 502 In this statement, the CMC appear to have adopted the language of the Acting State Coroner; see Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner, 27 September 2006). 503 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [697]-[700]. 504 Hurley’s interviews with investigators on both 19 and 20 November were given voluntarily. Hurley was not given a direction to answer questions. 505 This was the term used by the IRT; see, eg, Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 15.

348

The conversation could have been electronically recorded, notes could have

been taken by Webber or Kitching in their police note books either while they

were in the car or once the team arrived at the station, or during an interview

Hurley could have asked for and stated for the record, what was discussed

during the trip. The IRT itself acknowledged ‘questioning of officers to clearly

outline the nature of any conversations that were had at a later record of

interview is another means of ensuring an investigation is seen to be

independent’.

…

The IRT’s comments about the ‘considerable logistical problem’ presented by

the need to tape-record ‘all conversations from first point of contact with all

possible persons of interest’ does not pay heed to the focus given to

recording conversations by the OPM — particularly since Hurley was not just

one of ‘all possible persons of interest’ but was clearly of particular interest.

The reference to tape-recording the conversation also ignores that a record

could have been made in their police note books or during a subsequent

recorded interview with Hurley.506

543. Again, the CMC Review statements appear to be premised on the basis that Hurley

was ‘clearly [a person] of particular interest’. This statement seems to carry with it the

implication that Hurley should have been treated as a suspect.507 If that is the intent

then, with respect, I cannot agree. It is not at all ‘clear’ why Hurley would have been of

particular interest in the infancy of the investigation. The investigators knew that Hurley

had made the arrest and that the prisoner had subsequently died. To that extent, as I

have already indicated, he was undoubtedly a person of interest as were all witnesses.

He was not, however, a suspect. The ‘focus given to recording conversations by the

OPM’ relates to contact with suspects, not witnesses.508 The lack of reason to treat

Hurley differentially at this time appears to be the basis for the IRT conclusions that

‘this type of safeguard would require tape recording of all conversations from first point

of contact with all possible persons of interest and would present a considerable

logistical problem’. As the IRT further observed, the ‘investigators did not electronically

record any initial conversations with any of the witnesses’. The CMC Review did not

criticise the failure to record all contact with witnesses other than Hurley. This further

supports a conclusion that their complaint was based on the view that Hurley was a

suspect.

506 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 65. 507 Cf ibid, 69. 508 Cf, Operational Procedures Manual s 2.14.2.

349

544. Given that the investigation involved a serious police related incident, I accept that the

investigators needed to be circumspect in their contact with all potential police

witnesses. I do not accept, however, that this mandated the recording of all contact with

these witnesses. There was no instruction that would have suggested all contact with

all potential witnesses should be recorded, much less a mandate to do so. I accept as

prudent a policy implementation consistent with the IRT observation that:

Where officers involved in a serious police related incident are used to assist

with logistical exercises, tape recording of conversations with officers directly

involved in the incident, or accurate note taking, is one means of ensuring an

investigation is seen to be independent.

545. The CMC Review also criticised the IRT for suggesting that ‘in practical terms, no

investigation had begun’. This it seems is part of the allegation that the IRT justified

inappropriate behaviour. The IRT indicated that their intention was to convey the

thought, as I understand it, that the transport was not part of the investigation but

incidental to the investigation. 509 A conversation need not be recorded in these

circumstances. Even where a suspect is involved, such conversation need not be

recorded510 though judiciousness might dictate otherwise. However, I do not accept that

Hurley was a suspect at this point of the investigation. Given my conclusions that

Hurley was not a suspect, the matter is probably of little consequence.

Recording of Hurley transporting the investigators to the scene of the arrest

546. The CMC Review made criticisms of the investigators’ failure to record Hurley when he

transported the investigators to the scene of the arrest. In this context, the CMC

Review said:




Hurley should have been treated as if a suspect.511

547. The view of the CMC Review that ‘Hurley should have been treated as a suspect’ in a

homicide is clearly untenable. I have already outlined the relevant provision of the

Police Powers and Responsibilities Act 2000. 512 In particular, I have noted the

509 Cf Letter of Superintendent and Inspector Queensland Police Service to The Honourable Martin Moynihan QC AO, Chairperson, Crime and Misconduct Commission, 30 April 2010, 7. 510 R v Smith (2003) 138 A Crim R 172, 178-9 (McPherson JA). 511 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 69 (citations omitted). 512 See the discussion above, ‘Recording of Suspects’, [85].

350

distinction between treating the matter as a homicide and suspecting that the matter is

in fact a homicide. A suspicion that the matter under investigation was a homicide was

a prerequisite to the engagement of the safeguards under the Police Powers and

Responsibilities Act 2000. In the absence of any apparent cause of death, there does

not appear to have been any basis for forming a suspicion that Mulrunji was the victim

of a homicide. A more cogent argument might be mounted that Hurley was suspected

of committing an unlawful assault based on the interview with Roy Bramwell earlier that

morning. The difficulty with this proposition is that it is clear that the investigators were

not investigating some seperate assault. They were attempting to ascertain the

circumstances leading up to the death of Mulrunji. It is apparent that the return to the

scene of the arrest was done in the context of the investigation into the death in

custody. It is not apparent that this could have advanced any assault investigation.

Moreover, insofar as Bramwell’s allegations were concerned, it is clear that the

investigators did not accept them as credible. There was good reason for reaching this

conclusion. The re-enactment conducted with Bramwell makes it apparent that he

could not have seen what he suggested. The most generous description of his

evidence was that he was ‘quite excited ... and there is some embellishment’.513 By

contrast, the Crown Prosecutor at the Hurley trial described the evidence as bordering

on the farcical.514 That the investigators formed a view more in keeping with the Crown

Prosecutor than the Acting State Coroner is not unreasonable. If the investigators had

dismissed the allegations as specious, a fact they later affirm,515 then there could be no

‘positive apprehension’ that Hurley was a suspect in any indictable offence, let alone a

homicide.

548. A modified complaint is made about the failure to make ‘a detailed record of the

explanation given by Hurley’. The full discussion is extracted below:

If the purpose of the trip was, as stated by Kitching, to attempt to identify all

the circumstances leading up to Mulrunji’s death, one would expect that

some kind of record would need to be made of what was discussed. While

photographs were apparently taken and Kitching said he made notes of times

and places, it is difficult to understand how the investigators purported to

513 Inquest into the Death of Mulrunji (Unreported, Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 25. I note that the Acting State Coroner accepted his evidence as credible. 514 Transcript of Proceedings, R v Hurley (Supreme Court of Queensland, Townsville, Indictment 4 of 2007, Dutney J) 12-20 June 2007, 395. 515 Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Tape 1 Transcript [234]-[235]

351

identify the relevance of the photographs without making a detailed record of

the explanation given by Hurley.516

549. Frankly, there does not seem to be anything particularly extraordinary arising out of this

discussion. Kitching noted that the reason for travelling to the scene was ‘to identify

everything [he] possibly could’517 about the arrest. In saying this, he does not appear to

be suggesting some further interview with Hurley. Hurley identified the route adopted

during the trip and Kitching made a number of inquiries with residents in the area in an

effort to locate potential witnesses. He made notes in a notebook of the photographs

that were taken and the people he spoke to. Hurley’s presence was to assist, as a

witness, ‘to get photographs of the scene as it was at the time while it was fresh in

[Hurley’s] memory’. 518 Ultimately, the photographs would speak for themselves. The

notes made by Kitching are a common means of recording an aide memoir to assist

him to identify what the photographs depict, should that have later been needed.

550. The IRT suggested greater circumspection might be appropriate in the area of taking

notes and electronically recording contact with police officers involved in serious police

related incidents. I accept this is a proper matter for consideration in terms of policy to

ensure the appearance of independence in investigations of this nature. I also note that

the IRT recommended Webber be given guidance in relation to these considerations.

These are, in my view, appropriate considerations and recommendations. It follows that

I do not consider that the IRT have attempted to justify inappropriate behaviour in

relation to this matter.

551. The third proof in support of the second allegation was taken from the IRT report

concerning Webber:

D/Inspector Webber was left with little or no support in terms of

accommodation and meals. It is clear that the Service had an obligation to

ensure that adequate accommodation and meals were provided to the other

officers attending the Island. However, as the officer in charge of the

investigation team, D/Inspector Webber also had some individual obligation

to make arrangements for his accommodation and meals, and circumstances

permitting, the other members of the investigation team.

D/Inspector Webber was in charge of this operation and had a responsibility

to ensure logistical matters were attended to. Having said this, it is clear from

516 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 69. 517 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Tape 3 Transcript [378]. 518 Ibid [400]-[402].

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the amount of investigative work completed and the time that it would have

taken to liaise with the deceased’s family, that both D/S/Sgt Kitching and

D/Inspector Webber prioritised the gathering of evidence, crime scene

examination and management of the investigation ahead of logistical issues.

Given that considerable evidence was obtained that evening that may have

been either lost or been tainted because of the time taken to gather it (e.g.

versions of witnesses involved), it is understandable that neither of these

officers had time to organise logistical issues such as meals and

accommodation, and in the case of D/Inspector Webber, clothing, for

themselves.

The only alternatives left to D/Inspector Webber were:

• to go without a meal. This would have been unreasonable; or

• ask D/Sgt Robinson to bring the meal to the station. This would have

been an inconvenience for D/Sgt Robinson who had already gone out of

his way to provide a meal for these officers. As well, D/Inspector Webber

did not find out that the meal was at Hurley’s residence until such time as

he got there.

In the Investigation Review Team’s view, these officers having a meal and

consuming alcohol at S/Sgt Hurley’s residence did not ensure that the

investigative process remained to be seen as independent.

Webber indicated that to attempt to arrange meals and other logistical issues

prior to departing Townsville would have taken some time. Webber indicated

that time was critically important in terms of investigative process and in the

Investigation Review Team’s view, it would have been extremely difficult, if

not impossible, to arrange this type of support without delaying the flight.

Having said this, other senior officers could have attempted to take some

action that may have provided better support in terms of meals and

accommodation for these officers once they arrived on the Island. Likewise,

D/Inspector Webber could have asked other officers to make these

arrangements or could have asked senior officers for support.519

552. I have already discussed the lack of practical alternatives available to the investigators.

The CMC completed its own investigation report in March 2008, some months before

519 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [96]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 18 (Allegation 3: Dinner at Hurley's residence).

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the IRT. This investigation report considered the taking of a meal at Hurley’s residence

in the context of an investigation into Robinson. On this matter, the CMC concluded:





553. Apparently, officers from the CMC gave consideration to the difficulties faced by

investigators. Their conclusion reflects the realities of those difficulties. It is difficult to

see why the IRT should be criticised for coming to the same conclusion.

554. The fourth proof in support of the second allegation was taken from the IRT report of

Webber:

Senior officers could have given a direction to S/Sgt Hurley about the

preservation of the crime scene, separation of witnesses and the intent of

section 1.17 of the OPM. None was given.

FINDINGS

S/Sgt Hurley, Sgt Leafe and PLO Bengaroo had provided versions, or been

interviewed on the afternoon of 19 November 2004. Any discussions they

had after this interview did not, on a technical reading, breach section 1.17 of

the OPM. None of these officers knew that they would be reinterviewed or

asked to participate in re-enactment interviews as D/Inspector Williams had

not arrived on the Island and was responsible for instigating the re-enactment

interviews. An experienced officer who had dealt with internal investigations,

homicides, or serious police related incidents would have suspected that

follow up interviews would occur, and one would assume understood the

intent of section 1.17 was to require officers not to discuss serious police

related incidents until such time as an investigation was complete.

Having said this, Hurley admits that the officers discussed events, and it is

implied this occurred before the re-enactments.

The intent of section 1.17 of the OPM’s is to attempt to have officers be able

to give an independent recollection that has not been tainted by discussions

with other witnesses or persons. In a practical sense, once an initial version

is obtained, it is unlikely and perhaps unreasonable to expect that witnesses

520 Memorandum of Inspector K J Webster to Director, Misconduct Investigation, Crime and Misconduct Commission, 14 March 2008, 119.

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that know each other will not discuss an event. Rather, the test that should be

applied in terms of ethical and professional conduct, is that officers should

openly admit and not conceal the fact that they have discussed a matter. As

well, it should be remembered that the officers involved in the incident had to

manage the scene and continue to provide policing services until such time

as the Investigation Team and relief arrived. One would reasonably expect

that officers would have discussions for this purpose. One might also expect

that considerable stress was placed on the officers involved in the incident.

D/Inspector Webber did not have line control of these officers and did not

take charge of the scene and investigation until he arrived on the Island.

When questioned at the Inquest D/Inspector Webber indicated that he did not

see a need to direct any officers involved in the incident that they should not

discuss the matter. Webber indicated that he assumed the officers would

know the relevant policy.

RECOMMENDATION

No further action with respect to D/Inspector Webber.

The ESC, as part of its education and training role, develop a means of

educating, informing or reminding all members, on a regular basis, of their

obligations with respect to serious police related incidents.

The ESC ensure that as part of normal operations with respect to incidents of

a like nature, that clear instructions and processes are put in place to ensure

that as far as practicable, police witnesses are separated and not placed in a

position where they have access to investigative information (e.g. the

contents of records of interviews or statements).521

555. A more specific criticism of the IRT than the criticism set out in ch 13 is set out on p 89

of the CMC Review:

In their statements concerning the lack of direction from senior officers to

Hurley regarding the preservation of the crime scene, separation of witnesses

and the intent of the OPM requirement concerning discussion between

witnesses, the IRT appear to acknowledge the importance of these principles.

521 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [97]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 23-24 (Allegation 4: Discussions between witnesses).

355

At the same time, they undermine their importance by accepting the officers’

justifications that the police involved still had to maintain policing services on

the island (though there were other ways to achieve this), and that the senior

officers did not have line control over Hurley. They also suggest to the Acting

Assistant Commissioner, through a leading question, that it would be difficult

for the officers to brief anyone on the issue if they were not able to discuss

what happened.

Similarly, after stating the intent of the OPM requirement was to obtain

independent recollections, they then reinterpret and dilute it by saying that

the ‘practical’ test of ethical and professional conduct that should be applied

is that officers should openly admit to such discussion. Such findings

undermine the importance of compliance with the OPM.

In the CMC’s view, inconsistencies on the part of the IRT in their application

of the OPM provisions, as noted above, diminish the integrity and

thoroughness of its investigation of this allegation.

556. Somewhat frustratingly, no mention of these matters is made in ch 13 with reference to

the IRT. It is therefore not entirely clear that the CMC Review intended that this matter

should be a basis for their overall conclusion of misconduct or official misconduct on

the part of the IRT.522 Despite repeated requests to clarify this type of issue, the CMC

has steadfastly refused.523 Nevertheless, given that the CMC Review complains that

the actions compromised ‘the integrity and thoroughness of its investigation’, the matter

should be considered.

557. The real mischief of which the CMC Review complains appears to be the suggested

‘inconsistencies on the part of the IRT in their application of the OPM provisions’.524

The CMC Review seem to support this complaint by reference to the IRT’s report

concerning Webber:

The intent of section 1.17 of the OPM’s is to attempt to have officers be able

to give an independent recollection that has not been tainted by discussions

with other witnesses or persons. In a practical sense, once an initial version

is obtained, it is unlikely and perhaps unreasonable to expect that witnesses

that know each other will not discuss an event. Rather, the test that should be

522 Despite a number of requests, the CMC have not been prepared to further particularise their allegations. 523 See, eg, Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010. 524 CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 89.

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applied in terms of ethical and professional conduct, is that officers should

openly admit and not conceal the fact that they have discussed a matter.525

558. I do not consider that this statement was intended to ‘reinterpret and dilute’526 the OPM.

In context, it appears to me that the statement was intended to highlight difficulties with

the OPM and suggest a more practical alternative. Identifying such difficulties was part

of the charter of the IRT. In any event, it is difficult to understand how this matter could

be offered as evidence said to amount to the justification of inappropriate conduct. As

the CMC Review accepted, there was ‘no obligation for any of the individual officers to

give a direction to the witnesses’. 527 At its highest, the CMC Review suggest that

providing such advice might have been ‘prudent’.528 I note that, despite being aware of

the death in custody, the CMC investigators did not choose to do so.

559. The suggested evidence also includes the IRT comments on crime scene

management. The CMC Review made the comment that ‘the only issue raised in this

allegation that warranted consideration relates to Hurley’s management of the crime

scene until the investigation team arrived’.529 This appears to be a narrower focus than

that given to the issues of the crime scene raised by the IRT. Oddly, the CMC Review

seemed more concerned with the instructions that might have been given rather than

what was actually done,530 a preference for form over function. As was indicated in the

context of instructions to witnesses, whilst the CMC Review might ‘consider Hurley

should have been given some advice or instructions about the management of the

crime scene’, 531 there was no obligation to do so. Again, I note that the CMC

investigators did not do so.

560. I have considered the IRT recommendations in this area. I have failed to identify any

conduct of the investigators which requires censure. Consequently, I have not identified

any conduct which was inappropriate. A claim that the IRT ‘justified inappropriate

behaviour’ is therefore unsustainable.

561. The fifth proof offered in support of the second allegation was taken from the report of

Webber:

525 Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 23; see Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 88. 526 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 89. 527 Ibid, 86. 528 Ibid. 529 Ibid131. 530 Ibid 131-132. 531 Ibid 132.

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RECOMMENDATION

On balance, it is the view of the Investigation Review Team that D/S/Sgt

Kitching should have made mention of the Bramwell allegations, even if only

to the extent that they were untested or uncorroborated. This would have

allowed the pathologist to comment more specifically on those allegations at

the time of post-mortem examination if he wished.

D/Inspector Webber assumed that D/S/Sgt Kitching would have made the

allegations known to the pathologist.

For a disciplinary sanction to be imposed, a Prescribed Officer would need to

be satisfied that Webber was negligent or failed in his duty to check the Form

1. In the Investigation Review Team’s opinion it is understandable that

D/Inspector Webber did not think to re-check the Form 1 prior to its

submission as:

• the workload associated with this investigation, along with the workload

of other duties of the Regional Crime Coordinator (e.g. concurrent death

in custody investigation) made it impractical for Webber to check every

aspect of the investigation;

• at that stage, it was clear that a variety of possible causes of death had

been presented by investigations;

• it is also clear that the issue of assault as a cause of death was examined

by Dr Lampe and in subsequent post-mortem examinations;

• D/S/Sgt Kitching was attending the post mortem examination to brief Dr

Lampe;

• it is also clear that Roy Bramwell was not a credible witness, that the

ESC knew about his allegations, and that any experienced police officer

would know that his allegations would have been provided to the Coroner

as a matter of routine along with any other witness statements if no

natural cause of death was found; and

• the unavailability of a pathologist caused a delay in investigators being

provided with information as quickly as would have been desirable. The

post mortem examination occurred four days after the death.

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The Service has also reviewed its policies surrounding investigations of this

nature directly as a result of the matters raised at the Inquest, demonstrating

a need for improvement or change generally.

With respect to this allegation, the Investigation Review Team recommends

no further action.532

562. The CMC Review makes a number of criticisms of the IRT in the context of issues

surrounding the completion of the Form 1.533 Those criticisms are articulated into the

first and second allegations made by the CMC Review against the IRT. I have

elsewhere considered the conduct of Kitching in failing to include the allegations made

by Bramwell in a supplementary report to the Form 1 or in providing oral advice to the

pathologist. I have also considered the failure of Webber and Williams to identify the

failing. The issue here is whether the IRT inappropriately dealt with this matter in its

report.

563. The CMC Review suggested that the IRT ‘proffered a number of spurious reasons’534 to

justify the conduct of Webber and Williams. It is not apparent how these reasons are

said to be spurious. These were the reasons offered by the officers, albeit later

aggregated in the IRT Report. The source of the matters raised by the IRT seems plain

enough. Rather than raising ‘spurious reasons’, the objection seems to be the

willingness of the IRT to accept the explanation. The IRT explained the source of the

information and presented it comprehensively in their report. They drew conclusions

and made a recommendation on the basis of their investigation. Any such process will

inevitably meet with objection from readers who draw a different conclusion in a case

as controversial as this one. Nevertheless, my view is that the conclusions and

recommendations were reasonable. I do not believe that either their reasoning or

recommendations were deserving of censure.

564. The final proof offered in support of the second allegation was taken from the IRT

report of Webber:

EVIDENCE AFTER INTERVIEWS & INVESTIGATIONS

The Investigation Review Team is not aware of any specific complaints by

witnesses about their treatment by police investigators.

532 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [98]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 7-8 (Allegation 7: Form 1). 533 See, in particular, Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 110-112. 534 Ibid, 173.

359

D/Inspector Webber and D/S/Sgt Kitching have dealt with hundreds of

Aboriginal persons as witnesses and have never been the subject of a

complaint about the way they have dealt with those persons, by the

witnesses themselves or by way of judicial criticism.

ATSI Legal Aid field officers on Palm Island were involved in the process

from the outset. Logistically, investigators sought to identify as many

witnesses as possible and then to obtain versions from them. Cross-

examination of witnesses during these initial interviews was not undertaken

to any great extent.


A/Chief Superintendent recollected giving advice and direction with a

view to ensuring ATSI Legal Aid officers were advised and used if necessary.

FINDINGS

Certainly no specific obligation from a policy perspective was placed on the

investigators to use a support person unless they were of the view that one

was needed. This issue is one that requires a policy review at a Service wide

level, although it is the Investigation Review Team’s opinion that the use of

support persons should remain at the discretion of investigating officers as:

• the Service has reviewed its policy of dealing with matters of this nature

(i.e. deaths in custody);

• there are significant practical, logistical, resourcing and cost-benefit

issues associated with the use of support persons. As well, identification

of independent support persons can be difficult.

RECOMMENDATION

That the ESC review the need for the use of support persons for witnesses in

serious incidents involving police.535

565. The CMC Review devotes a relatively long passage to the discussion of ‘Lack of

Support to Indigenous Witnesses’.536 It is relatively long in the sense that it is frequently

535 Crime and Misconduct Commission, Palm Island Index, 2010. Sheet 2 [99]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 26 (Allegation 8: Support to Indigenous witnesses) 536 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 113-123.

360

repetitive. The substance of the complaint against the IRT is set out in some detail in

the concluding paragraphs of their discussion:

In reviewing this allegation, the IRT failed to identify or refer to the obligations

under the OPM, already noted, in relation to interviewing Indigenous

witnesses. It is difficult to see how the conduct of the officers can be

appropriately investigated without reference to the priority given to this issue

by the OPM.

The CMC also considers that several of the IRT’s findings create the

impression of trying to justify the failure of the officers to provide adequate

support on the basis of dubious reasons.

For example, a supposed lack of complaints by Aboriginal witnesses cannot

be regarded as relevant to whether witnesses were comfortable or that

support persons were needed. The fact that Webber and Kitching had not

been the subject of a complaint is also irrelevant to whether support persons

should have been provided to the Indigenous witnesses in this case. The

statement that ATSI Legal Aid field officers were involved from the outset is

misleading as they had no involvement in helping with communication

problems.

In the CMC’s view, this allegation also illustrates the way in which the IRT

largely deal with the various criticisms in isolation, rather than considering the

totality of the conduct of the officers. For example, they seem to accept

Webber’s statement that he believed the witnesses were quite comfortable

talking to the police without questioning him about his contrary statements on

two occasions about the PLO (noted above).

In the CMC’s view, the IRT has shown little understanding of the provisions

specifically established by the QPS to help ensure that investigators of a

death in custody are able to obtain the best evidence from Aboriginal

witnesses.537

566. The CMC Review’s comment that ‘the IRT failed to identify or refer to the obligations

under the OPM’ is in itself misleading. The IRT stated that ‘no specific obligation from a

policy perspective was placed on the investigators to use a support person unless they

were of the view that one was needed’. In referring to a ‘policy perspective’, the IRT

must be taken to have considered the OPM, the principal policy document for

operational officers. The failure to specifically refer to OPM s 6.3.6 is not inconsistent

537 Ibid123.

361

with this conclusion. Indeed, the IRT’s statement appears to allude quite directly to

OPM s 6.3.6 in describing the discretional character of that policy. It is also consistent

with the CMC Review’s observation that the IRT statement is ‘technically correct’.538

That is to say, the CMC Review accepts the accuracy of the IRT’s observation that the

OPM did not place an obligation on the investigators to use a support person. The

qualification that the CMC Review attach to this concession, that it was a technicality, is

the shaky foundation upon which the entire allegation is based. Such a shaky

foundation undermines the argument in its entirety.

567. A further matter is raised by the CMC Review but not otherwise discussed with respect

to the conclusions in ch 13 or the electronic index. The CMC Review said:

In asking other senior officers how they would have responded in such a

situation, the IRT engage in hypothetical questions which do not reflect the

actual situation that faced the officers at the time — for example, asking

Wilson if all the police on the island were all involved in the arrest whether

they should still notify the family. Since this was clearly not the case, it

conveys the impression that the IRT are trying to justify Webber’s decision.539

568. I have elsewhere discussed the appropriateness of Webber’s decision to notify the

family himself. I do not believe the IRT has attempted to justify inappropriate behaviour.

The alternatives suggested by the CMC Review were not viable. They suggested that

‘Leafe’s involvement was clearly far less than Hurley’s and Tonges was also

available’.540 Webber could not possibly have come to that conclusion before his own

arrival on Palm Island. Even then, it would take some time to identify who was involved

and to what extent. The suggestion that Leafe’s involvement was clearly far less than

Hurley’s would have been anything but clear in those early hours of the investigation.

Tonges was also implicated, albeit apparently mistakenly, by Florence Sibley.541

Suggesting explanations for the officers' conduct not advanced by the officers themselves

569. The CMC Review alleged that the IRT ‘suggested explanations for the officers' conduct

not advanced by the officers themselves‘.542 The discussion that immediately followed

this allegation is reproduced below:

538 Ibid 121. 539 Ibid, 130. 540 Ibid. 541 Senior Sergeant Raymond Kitching, Interview with Florence Margaret Sibley, (Ingham Police Station), 21 November 2004), Transcript [131]-[145]. 542 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 173.

362

The IRT offered an explanation for Webber failing to follow up, or missing, the

PLO’s response to a question during the re-enactment. The IRT noted ‘it

appears as if Webber has moved straight into what he sees as an important

line of questioning’. They also made comments about the time involved in the

PLO giving his answer, the length of the interview and the fact it was one of

four re-enactments conducted that day. None of these comments were put to

Webber or Williams in their respective interviews with the IRT, neither were

they offered as explanation by either of them for failing to pursue the PLO’s

answer. [Allegation 6: Lack of vigour in questioning the PLO]

570. Despite the relatively brief outline of the substance of this allegation contained in the

report, the electronic index offered four separate proofs in support of two separate

factual issues.543 The first issue was the one described in the ch 13 summary; the

second issue related to the taking of dinner at Hurley’s residence.

571. The failure to ‘follow up, or missing, the PLO’s response to a question during the re-

enactment’ was discussed in ch 9 of the CMC Review under the heading ‘Allegation 6:

Lack of Vigour in Questioning the PLO’. The first proof was taken from the IRT’s report

of Webber:

FINDINGS

The Acting State Coroner is incorrect when she says that “.Inspector Webber

merely responded, “Oh, OK.” The transcript and the re-enactment show that

Williams used the words “Oh, OK”.

In the Investigation Review Team’s opinion, on any reading of the transcript,

or viewing of the re-enactment interview, it is clear that the investigators

should have, and were obliged to ask follow up questions of PLO Bengaroo

about what he meant when he said “he might see something”. Initially it

seems clear that grounds for disciplinary action exist.

However, a Prescribed Officer would need to consider the transcript and this

‘lack of vigour or follow up’ in context. That is, a reading of the transcript or

viewing of the re-enactment interview needs to be placed in context. When

doing this, the reader or observer is not involved in the interview process, and

is not attempting to obtain a version from what could best be described as a

reluctant and inarticulate witness that appeared to be under some stress.

This interview was one interview in a series of interviews undertaken on that

day, with each interview taking some time.

543 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [102]-[106].

363

The re-enactment interviews were being conducted at the direction of

D/Inspector Williams and were video recorded to ensure transparency and

accurate recording of versions.

In the Investigation Review Team’s opinion, immediately after Bengaroo

finishes his response, it appears as if Webber has moved straight into what

he sees as an important line of questioning, that is, whether Bengaroo saw

Hurley do anything. It appears as thought both Webber and Williams have

missed what Bengaroo has said.544

572. The second proof was taken from the IRT’s report of Williams:

In the Investigation Review Team’s opinion, immediately after Bengaroo

finishes his response, it appears as if Webber has moved straight into what

he sees as an important line of questioning, that is, whether Bengaroo saw

Hurley do anything. It appears as thought both Webber and Williams have

missed what Bengaroo has said.

D/Inspector Webber is obviously mistaken, but maintains that he thought

Bengaroo said or at least meant “he might do something”, in the context that

Bengaroo was reluctant to take any part in the process as he feared

retribution or harassment from the local community.

D/Inspector Webber’s view that Bengaroo would believe he might be

harassed or be the subject of retribution is supported by Webber’s

experience of policing in Aboriginal communities. In the Investigation Review

Team’s opinion, Webber’s belief is reasonable.

D/Inspector Webber also argued that when questioned by counsel at the

Inquest, Bengaroo showed that he was a poor communicator, reluctant and if

challenged, quickly “went into a shell”.

Further interviews and questioning of Bengaroo at the Inquest did not illicit

any other information that assisted with inquiries into the death. Mr Peter

Davis, SC during the prosecution of Hurley, in explaining why Bengaroo was

not called as a witness, said that Bengaroo provided a range of different

versions of events: “…just no point in calling him. Apart from that I really

have no confidence that I have any idea what he would say when he was

sworn and, and he gave his evidence” (R v Hurley, p 395, line 30).

544 Ibid [102]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 34.

364

Williams, who was leading the re-enactment interview, asserts that the

purpose of working teams is in part to ensure obvious questions or lines of

inquiry are canvassed. Williams also asserts that no other person (the

Coroner, legal counsel, the CMC) could obtain any more information from

Bengaroo than he did; Williams asserts that Bengaroo was a difficult witness.

Both investigators described their investigative method as one of obtaining

versions and as much information as quickly as possible. This would then be

followed by analysis of each interview or piece of information, and if

necessary further interviews or investigations would be carried out. Both

officers argued that the investigation was taken from them before they could

review this particular interview.545

573. It is not easy to ascertain the specific complaint against the IRT from these two

references. However, it seems that the statement ‘it appears as if Webber has moved

straight into what he sees as an important line of questioning’ was the particular

statement that caused the CMC Review such consternation. Some other matters were

raised by the CMC Review, that is ‘the time involved in the PLO giving his answer, the

length of the interview and the fact it was one of four re-enactments conducted that

day’.546 However, with reference to these latter matters, the CMC Review also said

‘[w]e are not sure what point the IRT is trying to make’.547 Presumably, somewhere

between ch 9 and ch 13, the CMC Review concluded that the point was to ‘suggest an

explanation … not advanced by the officers themselves’. Alternatively, the CMC

Review has framed a complaint on a matter it does not understand, an unfortunate

precedent if that is correct. In any event, I do not accept that any of these matters

raised in the first two proofs support the allegation made by the CMC Review.

574. None of the matters raised in these proofs suggest anything more than an accurate

observation of what took place in the re-enactment with the PLO. Webber clearly does

move into an important line of questioning. Indeed, he moved straight into questions

directed at the very point for which the re-enactment was being conducted, that is, the

allegations raised by Bramwell earlier that morning.548 The timings of the interview are

also clearly observations properly made to place the entire matter in context. I have

already made observations about the enormous body of work undertaken by the

investigators, particularly on 19 and 20 November 2004. This is an important contextual

545 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [103]. The index references Report of Investigation Review Team, Queensland Police Service, 'Williams', 2008, 44 (Allegation 6: Lack of vigour in questioning the PLO). 546 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 173. 547 Ibid 100. 548 Cf Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), Transcript of Tape 2 [504]ff.

365

consideration when assessing the conduct of the investigators. I do not perceive any

impropriety by the IRT in making these observations.

575. The CMC Review made a further complaint in its consideration of lack of vigour:

The IRT described the officers’ task as ‘attempting to obtain a version from

what could best be described as a reluctant and inarticulate witness that

appeared to be under some stress’, but failed to ask the obvious question —

why, in such a situation, the officers did not provide support for the PLO.549

576. This complaint appears to fall more readily within the CMC Review’s discussion

concerning a ‘Lack of support to Indigenous witnesses’. In any event, the ‘obvious

question’ appears to misconceive the issue. Witnesses of all backgrounds can be

difficult. It does not follow from an observation that a witness is reluctant or inarticulate

that the witness falls within the scope of the special needs provisions of the OPM. The

CMC Review’s statement appears to reflect a limited conception of the considerations

set out in ch 6 of the OPM. The real issue to be determined when assessing special

needs ‘is to evaluate the ability of the person to be interviewed to look after or manage

their own interests’.550 It does not appear ‘obvious’ that the PLO’s own interests were at

risk of being compromised.

577. The issue of taking dinner at Hurley’s was discussed in ch 9 of the CMC Review under

the heading ‘Allegation 3: Dinner at Hurley’s Residence’. The third proof, the first of two

on this particular issue, was taken from the IRT report of Webber:











accommodation, and in the case of D/Inspector Webber, clothing, for

themselves.

The only alternatives left to D/Inspector Webber were:

549 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 100. 550 Operational Procedures Manual s 6.3.2.

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his way to provide a meal for these officers. As well, D/Inspector Webber

did not find out that the meal was at Hurley’s residence until such time as

he got there.



investigative process remained to be seen as independent.

Webber indicated that to attempt to arrange meals and other logistical issues

prior to departing Townsville would have taken some time. Webber indicated

that time was critically important in terms of investigative process and in the

Investigation Review Team’s view, it would have been extremely difficult, if

not impossible, to arrange this type of support without delaying the flight.

Having said this, other senior officers could have attempted to take some

action that may have provided better support in terms of meals and

accommodation for these officers once they arrived on the Island. Likewise,

D/Inspector Webber could have asked other officers to make these

arrangements or could have asked senior officers for support.551

578. The final proof was taken from the IRT report of Kitching:











accommodation for themselves.

The only alternatives left to S/Sgt Kitching were:

551 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [104]. The index references Report of Investigation Review Team, Queensland Police Service, 'Webber', 2008, 18.

367




his way to provide a meal for these officers.



investigative process remained to be seen as independent. D/S/Sgt Kitching

and D/Inspector Webber could have made arrangements for the meal to be

consumed elsewhere.

The Service should consider requiring all regions and commands to review

their policy and capacity to provide logistical support to members that are

required to travel to remote or isolated areas or to other incidents where the

provision of meals/accommodation and like support might be required. For

example, a container with provisions such as food, water, cooking equipment,

etc. could be held at each major centre where it was likely that immediate

despatch to an incident might occur. This type of resource would cost

relatively little, but would require regular checks to ensure the contents were

fit for use.552

579. Once again, a difficulty arises in identifying what particular facet of the material is said

to give rise to the complaint. The allegation is that the IRT suggested explanations for

the officers' conduct not advanced by the officers themselves. Two possible objections

arise from the evidence offered: the officer’s workloads on 19 November 2004 or the

lack of alternatives. With respect to the first possibility, this again appears to be an

observation open on the material. The investigators set out their duties during the day.

Even a cursory examination of their actions reveals that they were extremely busy and

occupied with the investigation. As to the second possibility, I do not consider the IRT

has done anything improper by illustrating the lack of alternatives. The CMC Review

did much the same thing in suggesting alternatives, although I have elsewhere

discussed just how impractical those alternatives were. Moreover, I have also noted

that the CMC reached a similar conclusion to the IRT insofar as the lack of alternatives

is concerned.553

552 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [105]. The index references IRT Report, Kitching, 25 (Allegation 3, Dinner at Hurley’s Residence - see Inspector

Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007). See the discussion above, [499].

368

Asking a series of questions intended to elicit a specific desired response

580. The fourth and fifth allegations set out in the CMC Review were critical of the questions

asked by the IRT. The allegations were framed differently, but in reality there is little to

distinguish them. The first of these two allegations was a complaint that the IRT asked

‘a series of questions intended to elicit a specific desired response’. The discussion in

ch 13 of the CMC Review commented:

The IRT questioned Wilson about the use of Robinson during the

investigation [Allegation 1: Officers serving on Palm Island involved in

investigation].

Wilson initially told the IRT ‘you’d have to be very careful how you used

him … for example, there’s no way that you would … interview Hurley and

have Robinson as your corroborator.’ The IRT then asked whether Wilson

was saying that Kitching should have used someone other than Robinson

during the interview with Hurley, if someone else was available. Wilson

replied if they were available. The IRT then asked what if there was no-one

else available, to which Wilson replied

… if there’s no-one else available there’s no reason why you couldn’t

use … Robinson. Obviously there’d be questions asked about … how

ethical that might be or whatever, and at the end of the day someone

might … be critical of it or … suggest that there could be a reason why it

couldn’t be done but it doesn’t mean in any case that it was wrong.

The IRT then asked ‘If that was the case would Kitching have been better off

interviewing Hurley by himself without Robinson?’, to which Wilson replied in

most cases it’s better to have a corroborator, depending on the role the

corroborator took and whether they asked many questions or influenced the

interview (IRT transcript, Wilson, pp10-11).554

581. Only one proof was offered in support of this allegation. It was taken from the interview

with Inspector Wilson who had been the Acting District Officer on 19 November 2004.

The relevant extract from the interview was taken from the IRT report of Wilson:

Ah in terms of ah the investigation team that went to the

island, Detective Sergeant ROBINSON went to the island.

Ah he was in Townsville at the time and flew back. Ah you

were aware that he was permanently stationed there,


369

would have had a relationship with HURLEY. Ah essentially

he was sent because he had local knowledge. In your view

would there have been any other officer available that day

that could have went to the island that would have had

local knowledge to assist with the investigation?

WILSON: I don’t think you could all, in all honesty say there’s no

other person had local knowledge of Palm Island. But

there’s still a matter of, of carrying out an effective

investigation. ROBINSON was the Detective at the island

at the time, he knew the people, he wouldn’t generally have

had um too much contact with ‘em in relation to things like

UI drunkenness and, and locking them up for those sorts of

offences. He’s a competent investigator and um he knew

the people, he would have investigated crimes there. Ah he

was in my opinion a suitable person to go and assist. I can’t

say for sure that there was a person who may have had

more knowledge but I can’t identify them either.

If ah you were in charge of the investigation and you knew

there was a relationship between ROBINSON and

HURLEY would that have prompted you about how

ROBINSON should be managed or used in terms of the

investigation?

WILSON: I think you’d have to be very careful how you used him.

You wouldn’t for example, there’s no way that you would

have a ah, you would interview HURLEY and have

ROBINSON as your corroborator. But you could certainly

use ROBINSON to locate other people who may be able to

be witness, or might have been witnesses or may be able

to provide other evidence. Um and that’s what I understood

his role to be that um he had local knowledge and could

locate people who may be able to assist.

If ah Detective Senior Sergeant KITCHING’s doing the

investigation and he ah had ROBINSON with him during

the interview of HURLEY, would – are you saying that he

should have used someone else if they were available?

WILSON: If they were available.

370

If there was no-one else available?

WILSON: Ah if there’s no-one else available there’s no reason why

you couldn’t use ah ROBINSON. Obviously there’d be

questions asked about ah how ethical that might be or

whatever, and at the end of the day someone might um be

critical of it or, or suggest that there could be a reason why

it couldn’t be done but it doesn’t mean in any case that it

was wrong, ah that they were um that they were incapable

of doing that. It doesn’t say that ROBINSON’s an

incompetent investigator or that, or that KITCHING’s an

incompetent investigator.

If that was the case would KITCHING have been better off

interviewing HURLEY by himself without ROBINSON?

WILSON: Thinking in most instances it’s better to have a

corroborator, dependent upon the role that the corroborator

took whether they asked many questions or influenced in

ah, the interview.555

582. I am not certain what response it was the IRT were allegedly attempting to procure.

Wilson suggested Robinson should not be used as a corroborator in the Hurley

interview. The IRT addressed this proposition and sought a response from Wilson as to

whether Kitching, in the absence of alternatives, should have conducted the interview

without Robinson. I would think the questions are reasonable and seek to examine

Wilson’s thinking on the topic.

583. The CMC Review also appears to criticise as ‘leading questions’ questions asked

regarding a time discrepancy on CCTV footage.556 This criticism was not noted in the

final summary of allegations or in the electronic index. It is not clear whether this matter

was relied upon to formulate the CMC Review’s allegation. Only one question referred

to by the CMC Review appears to meet the description of this complaint. 557 In the

absence of any assistance from the CMC Review in providing better particulars to

555 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, Sheet 2 [108]. The index references Inspector Interview with Inspector Neal Wilson, (Northern Regional Office,Townsville, 18 October 2007), 10-11 (Allegation 1: Officers serving on Palm Island involved in Investigation). 556 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 94. 557 Ibid 92.

371

support its allegations,558 I have assumed that this is the matter of concern. I have

extracted the material identified in the CMC Review:

KITCHING: HURLEY was there because I asked him to show me the

C-C-T-V footage. He's the officer in charge of the station,























KITCHING: Well we're looking at the time of, of a cause of death. Okay









558 See, eg, Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010.

372






concerning an investigation, is that what you're telling

me?559

584. There is no particular prohibition on the use of leading questions in a disciplinary

interview, though generally speaking such questions are inappropriate. 560 But to

describe the question asked by the IRT as a leading question is to ignore the

statements already made by Kitching during that interview. Kitching had already said:

Um I viewed the C-C-T-V footage, okay the video footage that was taken at

the watchhouse and at that time I noticed there was a discrepancy in time on

the recording commitment ah recording equipment compared to real time

okay. Um identified that there was about fifteen minutes discrepancy in that

time recording compared with the real time and for that purpose and UI of

clarity, ah thoroughness and to clarify that issue ah I addressed the issue

with Senior Sergeant HURLEY there and then okay ah and then I took

possession of the footage. Now I took possession of that footage at 3:45pm

and that's recorded in my notes. 3:45pm, now I, I viewed the entirety of that

footage at that time okay. And they were the discussions I had with HURLEY

in relation to them.561

585. Immediately before the impugned passage referred to by the CMC Review, Kitching

also said:

Well it was ah it was during the, the time that I watched the video, the ah C-

C-T foot, C-C-T-V footage. Now from memory that footage went for thirty

minutes or maybe a bit longer. Now I arrived on the island at um at 3:05, I

walked into the Police Station, I first got the information about

so some time between 3:05 and 3:45 I was watching that C-

559 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript of Tape 2 [991]-[1036]. 560 Cf OPM s 2.14.1 in relation to the questioning of suspects in criminal matters. The IRT noted that they were not conducting criminal interviews and that their interviews were subject to administrative law and inquisitorial in part: see Letter of Superintendent and Inspector Queensland Police Service to The Hon Martin Moynihan QC AO, Chair, Crime and Misconduct Commission, 30 April 2010, 17. 561 Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Transcript Tape 2 [945]-[960].

373

C-T-V footage so ah there wasn't any, there wasn't much time at all when I

could have had any conversations with anyone.562

586. In the context of all of the statements made by Kitching in relation to the CCTV footage,

it seems to me that the final question was not so much a leading question but one that

sought, through restatement, to ensure the interviewer understood Kitching’s

statements. This is consistent with the procedure in OPM s 2.14.1 which provides that

‘in order to competently interview a suspect, officers may put questions in direct terms

and ask further questions designed to clarify ambiguous answers given’.

Asking questions which create a perception of bias

587. The fifth allegation against the IRT is that they asked questions which created a

perception of bias. The discussion in support of this allegation was brief and mentioned

only one question:

In the questioning of Strohfeldt, in reference to Hurley, the IRT asked: ‘Have

you seen a better officer in terms of interaction with a community, Aboriginal

community in your twenty-five, thirty years?’ despite the fact that Strohfeldt

said earlier in the interview that he had not been to Palm Island between the

time he gained line control of Palm Island on 29 March 2004 and the time of

Mulrunji’s death.563

588. The singular reference belies the indication that the IRT asked questions. However, in

the electronic index, the CMC made five separate references to impugned passages,

thereby extending the scope of this allegation. The CMC instigated what it described as

a ‘procedural fairness process’ which, in part, purported to identify the issues relating to

the IRT and provide an opportunity to respond.564 The CMC Review stated that it was

‘satisfied it [had] complied with procedural fairness requirements’. 565 Yet it failed to

identify to the IRT the full particulars of the allegation that it was making, thereby

depriving the party adversely named the opportunity to make a proper response.566 The

singular reference in the CMC Review was one of the few allegations that the IRT

chose to respond to directly. In its ‘procedural fairness submission’, the IRT admitted

the question, ‘with the benefit of hindsight … could have been worded differently.567

Likely that is so. In any event, in my view the question, when placed in context, is not

562 Ibid [976]-[985]. 563 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 173. 564 Ibid 159. 565 Ibid, 13. 566 Cf South Australia v O'Shea (1987) 163 CLR 378, 405. 567 Letter of Superintendent and Inspector Queensland Police Service to The Hon Martin Moynihan QC AO, Chair, Crime and Misconduct Commission, 30 April 2010, 17.

374

nearly as objectionable as it has been portrayed. I have extracted the relevant

passage:

STROHFELDT: Um yeah it’s – I’ll probably say this now e-even though he

was he arresting officer and he whatever happened has

happened and that’s all been through the courts now but

before this happens and I, I said this in, in evidence at the,

the inquest, Chris HURLEY was, was, was ah on the island

was held in very, very, very high regard by the community,

by the kids, by the Elders, by Erica KYLE the Mayor and

there was write-ups in the paper which um you’ve probably

seen ‘em um about him and his interaction with the

community over there with the children so yeah.

[Beeping sound]

STROHFELDT: That’s one thing that I couldn’t – even when I took over

Palm I – that’s one thing that really struck me is his

interaction within the community and with his own police

that he actually encouraged them to be active within the

community.

As his supervising officer have you seen a better officer in

terms of interaction with a community, aboriginal

community? In your twenty-five, thirty years.

STROHFELDT: He’s probably one of the best. Probably the only better one

I’ve ever seen is, there’s one guy that used to be at um at

Cherbourg, at ah Woorabinda years ago but he’s probably

the only other person that I’ve ever seen who, who

matches up or if not better than HURLEY is the current

officer in charge on Palm Island.568

589. In essence, Strohfeldt made some positive comments about Hurley’s activity as Officer

in Charge of Palm Island. The impugned question seeks to clarify those comments,

albeit a little clumsily, as the IRT acknowledged. This appears to be another instance

where the IRT is attempting to ‘put questions in direct terms and ask further questions

designed to clarify ambiguous answers given’.569

568 Inspector Interview with Inspector Gregory Strohfeldt, (Northern Regional Office,Townsville, 18 October 2007), [1139]-[1169]. 569 Cf OPM 2.14.1.

375

590. The second proof relied upon by the CMC Review was similarly taken from the

interview with Strohfeldt:

STROHFELDT: Ah and I’ve been – I was doing the regional, the Retec role

here plus Regional Crime Coordinator on and off for twelve

months.

So it would be very fair to say that you’re very conversant

with the role of the Regional Crime Coordinator?

STROHFELDT: That’s correct.

And the responsibilities of the Regional Crime Coordinator

hence your answer before that um you knew the role of the

Detective, or Detective Inspector WEBBER was to take

charge of that investigation.

STROHFELDT: That’s correct.570

591. I have considered the passage several times. I fail to see how this passage could

support the allegation. The two questions might be termed leading, though having said

that, they are simply direct questions on uncontroversial matters. I cannot see how a

reasonable reader could reach a conclusion that the questions ‘create a perception of

bias’.

592. The third proof is again taken from the interview with Strohfeldt:

Yeah.

STROHFELDT: Because he’s not here and that just, it’s just UI somebody

else’s business.

And again you could have allegations that you were

interfering with the process.

STROHFELDT: Exactly.

You were colluding –


570 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [112]. The index references Inspector Interview with Inspector Gregory Strohfeldt, (Northern Regional Office,Townsville, 18 October 2007), 14 and is taken from line [419]- [434].

376

- UI. Okay. Um in terms of logistics and this is again a

general ah type of thing, it’s been suggested that the

service should develop a type of logistical support kit which

would contain simple food, perhaps bedding which could

be provided to officers that might be called to go to similar

types of jobs in remote areas. Um have – do you have a

view about that whether it’s feasible, would you use it, do

you think it’s a good idea, bad idea, is it practical?571

593. As was the case with the previous evidence put forward by the CMC Review, I find little

if anything objectionable in these questions. They appear to clarify the statements

made by the interviewee. Moreover, I fail to see how they create a perception of bias.

594. The penultimate proof taken from the interview with Strohfeldt was, to my mind, equally

unobjectionable:

I want to talk now about the time between you being

advised and advising Chief Superintendent, Acting Chief

Superintendent and Detective Inspector

WEBBER, there’s a time there between say the death and

the HURLEY conversations with yourself and other senior

officers and the time the investigation team gets to the

island, it’s roughly between say eleven, 11:30 and 3pm.

You’ve already told me that you didn’t give any directions to

Chris about management of the ah, the general policing of

the station, those sorts of things simply because and I don’t

want to repeat it too much but you saw that as the role of

the Detective Inspector who’s in charge of the

investigation?


Did you assume ah that either the Acting Chief or the

Detective Inspector would’ve given some direction about

how the general duties policing was to continue on the, on

the island until the team got there?

STROHFELDT: I would have thought so. Um I don’t know whether they did

or not but yeah I would have thought so. Um –

571 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [113]. The index references Inspector Interview with Inspector Gregory Strohfeldt, (Northern Regional Office,Townsville, 18 October 2007), 24 and is taken from line [738]-[760].

377

In terms of your previous experience in similar types of

incidents not that you’ve been ah the chief investigator on a

death of custody but those types of incidents when you’ve

taken charge is that the time it would have been that you

considered giving advice to UI?

STROHFELDT: Oh yes. Exactly.

Um just a very general question about your style of

investigation. If you were to arrive on the um island and you

were in charge of the investigation team, the arresting

officer that’s been involved in the death in custody, Senior

Sergeant HURLEY, picks you up, um you would have had

conversations with him, would you have recorded any

conversations with him between the time that you – what

would you have said when you first got there and what

would you have done in terms about recording

conversations, those types of things?572

595. The final proof offered was taken from the interview with the Acting Assistant

Commissioner at the time of the death in custody:

Alright. Okay. Alright now the first element I guess is, is the

opportunity um for witnesses as in HURLEY, LEITH,

BENGAROO, any of those involved um being able to

discuss the events under investigation. So if I just point you

to section 1.17 of the O-P-M's and I don't know if you're

aware of that, but it's - where there's a major investigation

on that the police should be kept apart as much as possible

prior to their versions being obtained. How do you see that,

that fitting with the incident at Palm Island and incidents

such as that in remote locations?

Well obviously that, that would be desirable um in any type

of investigation ah where you want to interview ah people

independently that ah you prevent the opportunity for

collusion but when you realise Palm Island is um a twenty-

five minute flight across the ocean um I'm at a loss to know

572 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [114]. The index references Inspector Interview with Inspector Gregory Strohfeldt, (Northern Regional Office,Townsville, 18 October 2007), 28-9 and is taken from line [881]-[927].

378

what you could put into place in the interim between when

the death occurred and when the investigators arrived on

the island a lapse of probably a couple of hours. How you

could prevent collusion occurring between those involved

over on the island if they are so inclined.

Well was there - were you aware of any directions given to

Chris HURLEY as the officer-in-charge to perhaps ensure

that they didn't discuss the incident?

No.

And if that was to the case how would they be able to brief

you as the senior officer if they didn't talk about UI in order

to brief you?

Well they'd have difficulty because they wouldn't know the

full facts because they all played a role somewhere along

the line in the whole incident. So it would be necessary for

them to um, um –573

596. Presumably, the impugned question is the one asked by This question appears

to relate to the difficulties inherent in OPM s 1.17 which the IRT had identified.574 The

question, appears to me, was addressed to that issue and was appropriate.

Accepting evidence without testing it

597. The sixth allegation made against the IRT is that they accepted evidence without

testing it. The discussion that followed the allegation is reproduced below:

The IRT accepted that there was no option other than Robinson to provide

local knowledge or assist Kitching when clearly there were alternatives

[Allegation 1: Officers serving on Palm Island involved in investigation].

They accepted that there was no alternative to Hurley driving the vehicle in

which the investigators travelled from the airport to the station, without

exploring the existence of any options [Allegation 2: Hurley transporting

investigators].

573 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [115]. The index references Assistant Commissioner Interview with Chief Superintendent (Northern Regional Office,Townsville, 18 October 2007), 42 see Transcript [1253]-[1290].. 574 See above, [557]ff.

379

They also accepted Webber’s assertion that Bramwell could not be ‘located’

on 19 November 2004.575

598. As will be evident, three separate bases are suggested as supporting this allegation. A

single proof is offered in support of each although clearly other material, much of which

has already been discussed, is relevant to the first two bases. The first two bases

address the alternatives to using Robinson in the investigation and to travelling with

Hurley from the airport respectively. The alternatives suggested by the CMC Review

have already been discussed and dismissed. It follows that the acceptance of the

evidence with respect to these two complaints was not inappropriate. I do not propose

to discuss these complaints further, despite their inclusion in a different allegation,

since the reframing of the allegation has no material affect on my view. For the same

reason, I have not included the evidence raised in support which adds nothing new to

the body of material already considered.

599. The third proof offered in support of the third complaint in this allegation is taken from

the IRT’s interview with Webber:

WEBBER: Potentially to um, to ah delay the investigation and, and ah,

and made it take, take longer with all the implication that

arise, that arise from that. Ah because it's my, my belief

that one of the ah, ah one of the ah deficiencies I suppose

if you want to call it, use that word ah was that we were

unable to actually locate BRAMWELL on the Fri, on the

Friday night. I believe that if we'd been able to locate him

that Friday night and get a complete version from him on

that night I don't believe ah he would have made the

allegations that he subsequently made which um may well

have ah put a completely different perspective on things.

Why do you say that? That he wouldn't have made those

allegations.

WEBBER: I, I believe that he was in-influenced ah by subsequent

events and, and what occurs on the island and the

grapevine etcetera, etcetera that, that takes place over

there that he was influenced, ah he was obviously a person

ah who'd been arrested for serious assaults, ah he was

certainly um no um, he had his own grievances in relation


380

to the Police. Ah there was alcohol, alcohol was a factor

um and I believe that um if he'd been located then on that,

on that Friday before he had the opportunity to, to go and

speak to other people, be influenced by what they may

have said, ah consumed more alcohol himself that he may

well have ah, ah given a different version of events.576

600. These two responses appear to be the only references to an inability to locate Roy

Bramwell on 19 November 2004 in the material. Webber does not suggest what efforts

were made to locate Bramwell. Nor does he indicate that locating Bramwell had been

considered a priority. To the contrary, he indicated that Bramwell only took on

significance as a witness once he was interviewed.577 There was no reason to think

Bramwell was not considered a more significant witness than any of the other civilians

interviewed on 19 November 2004. It was only after this interview that it became

apparent that Bramwell became a more significant witness. The main thrust of the

comments appears to be an expression of regret that Bramwell was not interviewed

earlier. Webber indicated that the aim of the investigation team was to conduct

interviews as promptly as they could.578 A number of interviews were conducted on 19

November 2004. The focus on that day appears to be the police officers who were,

presumably, readily accessible. 579 The investigators undertook a credible amount of

work on that day and commenced further interviews first thing the following morning.

Consequently, the statement that Bramwell could not be located may simply mean that

he was not readily available.

601. The CMC Review suggests that Bramwell should have been interviewed as a priority.

They suggest that ‘Roy Bramwell was a person who potentially had significant

knowledge of the circumstances of the death’.580 Later, they say:

As he was the only non-police witness to the fall and to Mulrunji being taken

towards the cells, we consider the investigation team should have ensured

that they interviewed him as soon as possible.

The investigators were aware, from the interviews conducted with Hurley and

Leafe on the afternoon of 19 November 2004, that Roy Bramwell was outside

576 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, IRT Index [120]. The index references Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), 21 – see Transcript Tape 1 [616]-[646]. 577 See, eg, Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Transcript Tape 1 [931]-[944]. 578 Ibid Transcript Tape 2 [337]ff. 579 Ibid. 580 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 146.

381

the police station when Hurley arrived with Mulrunji and in the police station

when Hurley took Mulrunji into the watch-house. Hurley even said Bramwell

made a comment about seeing Mulrunji assault Hurley.581

602. I have previously discussed the view that Bramwell should have been considered a

priority. I do not accept that this was the case. Consequently, I do not accept that the

IRT fall into censurable error in failing to pursue this matter with the investigators.

Lack of thoroughness

603. The seventh allegation made against the IRT is that their investigation lacked

thoroughness. A number of grounds were discussed in Chapter 13:

Further, in light of the degree of seriousness of alleged conduct and the

public interest, Section 18.2 of the HRMM required the IRT to conduct an

extensive investigation. Yet the IRT failed to identify and consider all the

relevant QPS policies, procedures and other requirements for the

investigation of a death in custody or to ascertain all the facts relevant to the

investigation.

The IRT did not identify and investigate important issues concerning the initial

QPS investigation not specifically mentioned by the Acting State Coroner. For

example, they failed to explore why Bramwell was not interviewed by the

initial QPS investigation team on 19 November 2004 (Chapter 10).

The IRT did not address all the relevant issues raised by the allegations they

distilled from the Acting State Coroner’s comments and criticisms. For

example, the IRT did not address the failure of the investigation team to take

the PLO to the scene [Allegation 2: Hurley transporting investigators: Driving

to the scene of the arrest]. They also did not address the omission of Ms

Sibley’s allegation from the Form 1 [Allegation 7: Form 1].

When in the course of their interviews the officers provided explanations not

previously mentioned by them in their statements for, or evidence given to,

the Inquest, the IRT did not pursue these.582

604. There are a number of issues raised in this discussion. In summary, they relate to the

failure to interview Bramwell on 19 November 2004, the failure to take the PLO to the

scene, the failure to include Florence Sibley’s allegation in the Form 1 and a

generalised complaint about the interviewing technique adopted by the IRT. Some of

581 Ibid 147 (citations omitted). 582 Ibid 174.

382

those issues have already been discussed. Moreover, there seems little to distinguish

this allegation from the following allegation ‘Lack of diligence’. Despite the articulation

of a number of complaints linked to this allegation, there are only three proofs referred

to in the electronic index.

605. The first proof references s 18.2 of the HRMM, a QPS policy document. Section 18

sets out the QPS policy with respect to discipline including the identification,

investigation and finalisation of disciplinary proceedings. Section 18.2 relates

specifically to ‘Dispute Resolution’. The first complaint linked to the following allegation

is also structured, in part, around the requirements of s 18 of the HRMM.583 In summary

of this aspect of the eighth allegation, the CMC Review said:

Section 18 of the HRMM also required the IRT to provide a detailed

comprehensive report attaching all documents (including interview transcripts,

statements, synopses, video and audio tapes, photographs, etc.) relevant to

the investigation. They did not do so. Among other things, the report does not

specifically identify or clearly reference or set out in totality or contain copies

of the relevant legislation or QPS policies and procedures.584

606. There are a number of difficulties with a complaint relating to s 18.2 of the HRMM. The

first relates to the question of whether the IRT could properly be said to have

undertaken a disciplinary investigation. I have previously set out my concerns regarding

the CMC Review’s assumption that the IRT was undertaking a disciplinary

investigation.585 On this basis alone, complaints are likely to fail. However, there are

other reasons why this complaint cannot be sustained.

607. The CMC Review purported to summarise the contents of s 18 of the HRMM. At p 38,

the CMC Review stated:

At the relevant time Section 18 of the QPS Human Resource Management

Manual (HRMM) outlined the policy and expected standards that applied to

disciplinary investigations.

Criteria for a disciplinary investigation A disciplinary investigation was

only to be conducted in cases considered to be serious, and in which, the

purpose of discipline — including maintaining public confidence and

maintaining proper standards of conduct of QPS members — was an

important concern. An investigating officer was to decide the extent of the

583 I note that s 18 is not referred to in the evidence provided on the electronic index. 584 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 174. 585 See above, ‘The IRT Review Purpose’, [92]ff.

383

investigation based on a number of things, and in particular the alleged

conduct under investigation and the public interest. These considerations

meant that the more serious the alleged conduct and its consequences, the

greater the degree of thoroughness, care, attention to detail and accuracy

required.

Investigation report Section 18 also required that the more significant the

investigation, the more comprehensive and detailed the investigation report.

The report had to outline all the relevant evidence and the investigator’s

findings and recommendations about any grounds for disciplinary action. All

the relevant source material was required to be attached to the report.

608. The summary provides limited insight into the actual requirements of s 18 and is not

particularly useful as a tool for considering the conduct of the IRT. It is more useful as a

tool for understanding the CMC Review complaints.

609. The first aspect of the complaint into the seventh allegation is that ‘the IRT failed to

identify and consider all the relevant QPS policies, procedures and other requirements

for the investigation of a death in custody or to ascertain all the facts relevant to the

investigation’. I am not certain I understand this complaint. It may be that the complaint

is that the IRT Report did not mention ‘all the relevant QPS policies, procedures and

other requirements’. If that is the complaint then I do not accept this ‘failure’. I do not

accept that a discussion into the complaints of the Acting State Coroner required a

reference to every policy, procedure or other requirement in some sort of ‘check box’

fashion. I would expect the report to enable an informed reader to understand the

failings and the relevant policies against which those failings could be ascertained and

measured. The reference to an informed reader is not a literary flourish. The IRT knew

and understood their audience. This report was written for the benefit of the senior

executive of the QPS. It was reasonable to assume the senior executive were familiar

with relevant policies, procedures and other requirements so far as they were relevant.

There was no need to spell out every policy, procedure or other requirement when

addressing this audience. If the CMC Review had difficulty because these matters were

not specifically articulated, they were at liberty to enquire with the IRT, an opportunity it

appears they failed to take advantage of. Moreover, I do not consider that an absence

of a particular reference in the report necessarily supports a conclusion that the issue

was not considered. The inclusion of every reference would undoubtedly have made

the report unwieldy. I do not believe specific reference was necessary to progress the

report.

610. Identifying specific complaints about a failure to reference particular policies,

procedures or other requirements is difficult. One example is found in the discussion of

the failure to support Indigenous witnesses. The CMC Review notes that ‘the IRT failed

384

to identify or refer to the obligations under the OPM in relation to interviewing

Indigenous witnesses’. I have already discussed this issue.586 The lack of particulars

makes it difficult to identify what ‘other requirements’ are being referred to.

611. It may be that this complaint is not about the report itself, but rather, about the matters

considered in the interviews. If this alternative is the basis of the complaint, then it is

also unsustainable. The IRT considered an enormous body of evidence. In this respect,

I note that the IRT stated:

The investigation has considered the transcripts of the Coronial Inquest,

which consist of approximately 1333 pages and the transcripts of the criminal

proceedings consisting of approximately 540 pages. Other evidence and

submissions placed before these courts was also considered. In particular,

the watch house video recording of the custody of Mr and a

DVD recording of re-enactment interviews between D/Inspectors

Webber/Williams and witnesses after the death (Appendix 2 & 3

respectively).587

612. It was not necessary that the IRT revisit every matter in the interviews they conducted.

They were entitled to accept the interviews that had already been conducted and the

evidence given in various forums.

613. The second aspect of the complaint based on s 18 of the HRMM is the format of the

report. A complaint on the basis of the format of the report appears to be a reference to

s 18.2.4.7 of the HRMM. Section 18.2.4.7 sets out a number of requirements of an

investigation report which has a peculiar meaning in the context of the HRMM. The IRT

report does not appear to be a report within that meaning. An investigation report is

submitted to the ‘the Officer in Charge of the Region’. 588 However, the IRT were

reporting directly to the Commissioner. Moreover, s 18.2.4.7 stated:

A comprehensive report is to be completed in the following format where

directed by the Officer in Charge of the Region and/or, in the case of

misconduct allegations, the Assistant Commissioner, ESC.

614. No such direction was ever made.

615. The most glaring error in this aspect of the complaint, however, is the apparent failure

to recognise the relative position of the HRMM. The HRMM is a Commissioner’s

586 See above, [565]. 587 Report of Investigation Review Team, Queensland Police Service, 'Executive Summary', 2008, 4. 588 This expression would include, where appropriate, the Officer in Charge of a Command.

385

instruction.589 The Commissioner is not bound by those instructions and may amend or

repeal those instructions.590 The IRT reported directly to the Commissioner, who was at

liberty to determine the scope and content of the report. The Commissioner indicated

that he supported the IRT Review process.591 It follows that, even if the IRT Report was

an investigation report, it met the Commissioner’s requirements in this particular case.

616. The further aspect of the complaint is that the IRT failed to ‘ascertain all the facts

relevant to the investigation’. No specific examples are cited, the electronic index does

not nominate any proofs and the CMC refused to further particularise its allegations.592

The eighth allegation contains a similar complaint to that affect that discrepancies in the

evidence were not clarified.593 The electronic index does contain some material which

apparently is intended to support this complaint. I shall further discuss this issue in that

context.

617. The second proof offered in support of this allegation was taken from the interview with

Strohfeldt:

Did you give him –

STROHFELDT: - and ah –

Sorry.

STROHFELDT: Yeah that’s about all I can remember on that.

Did you give him any general advice about the crime scene

or managing the station?

STROHFELDT: I may have, I can’t remember.

Yeah.

STROHFELDT: It’s so long ago.

Yeah. In terms of ah advising ah Superintendent

who was at the time the Acting Chief Superintendent, do

you remember ah any of the conversation there?

589 See the discussion above, [95]ff under the heading ‘Commissioner’s Instructions’. 590 Cf Acts Interpretation Act 1954, ss 23 and 24AA. 591 See, eg, Letter of Commissioner Robert Atkinson, Queensland Police Service to Acting Chairperson Ann Gummow, Crime and Misconduct Commission, 18 January 2010, 3. 592 See, eg, Letter of Martin Moynihan AO QC, Chairperson, Crime and Misconduct Commission to Deputy Commissioner Kathy Rynders, Queensland Police Service, 12 November 2010. 593 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 174.

386

STROHFELDT: No not off the top of my head. Basically informed him that

there’d been a death ah in the cells at, at, at um Palm

Island and um I should have brought my statement with me

UI.

That’s alright, yeah. UI.

STROHFELDT: Um but I, yeah but I can’t remember our exact

conversation.

Yeah. And did he give you any directions or advice to do

anything?

STROHFELDT: No not from my recollection, no.

Okay. And ah with Detective Inspector WEBBER, I don’t

want to put words in your mouth but I’ve read your

statement, you just generally advised him what HURLEY

had told ya.

STROHFELDT: Have you got a copy of my statement I can have a look at?

Ah I haven’t got it on me sorry.

STROHFELDT: UI.

Yeah. I-irrespective of that –

STROHFELDT: Yeah.

- um Detective Inspector WEBBER never asked you to do

anything did he?

STROHFELDT: No.

Okay.

STROHFELDT: No.594

618. I have included the full text of both pages referred to in the electronic index because I

have been unable to determine why it is significant. Despite some deliberation over this

594 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [124]. The index references Inspector Interview with Inspector Gregory Strohfeldt, (Northern Regional Office,Townsville, 18 October 2007), 6-7 – see Transcript [163]-[223]

387

passage, I have not been able to identify the relationship between this proof and the

allegation. The only direct reference to this passage occurs on p 131 of the CMC

Review in the context of the discussion of forensic processes. The CMC Review did not

suggest any censurable conduct by Strohfeldt.595 It was not suggested that Strohfeldt

had ‘provided explanations not previously mentioned’. The criticism of the IRT later in

the chapter is that the IRT only identified the Acting Chief Superintendent as someone

who should have provided advice on crime scene management.596 Whatever the matter

that this passage is intended to demonstrate, it fails. It is either too obscure an

argument to support any sort of disciplinary action or it was included mistakenly. In

either event, I have ignored it.

619. The third proof offered in support of this allegation was taken from the IRT interview

with Williams:

Okay. What we'll start with is ah in relation to the form one,

the report of death that ah Detective Senior Sergeant

KITCHING ah subsequently ah sent to the Coroner. My first

question would be did you take any steps to read the form

before it was submitted?

WILLIAMS: I haven't seen the form, have you got a copy of it?

No. We don't have a copy of it.

Ah I did have sorry I can get that, do you want to stop and

get the copy?

WILLIAMS: Well it was three years ago UI.

Yeah. It's only fair. It's my fault I should have had that here.

Yeah. What we could do when we take a break we could

come back to that and we could get that while we're

changing tapes at, at the next stage. I probably won't ask

any more questions in relation to that until such time as we

- you, you see a copy of the form one. But off-the-cuff you

595 Cf Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 41. 596 Ibid 133.

388

can't remember whether you sighted the form one or

not?597

620. It is not immediately clear how this passage relates to a lack of thoroughness. It does

not appear that the passage was discussed by the CMC Review at all. However, its

relevance becomes more apparent from the notation on the electronic index. The

electronic index notes immediately after the reference ‘Lack of preparation for

interviews’. No complaint is made by the CMC Review that the IRT failed to properly

prepare for interviews and no other occasion is suggested which would give some

meaning to the use of the plural. The file properties to the electronic index suggest it

was created on 25 August 2010, approximately two months after the CMC Review was

tabled in parliament. It may be that the failure to include this particular complaint was

merely an oversight.

621. I have had an opportunity to consider all of the interviews conducted by the IRT. The

interviewers appear to be well prepared with a firm grasp of the essential issues. They

spent a considerable period preparing for the interviews.598 However, on this particular

occasion, they failed to bring a copy of the Form 1 to the interview. This appears to be

an oversight. The oversight is of little consequence.

Lack of diligence

622. The eighth allegation is that the IRT demonstrated a lack of diligence. Several matters

were raised in the summary of this allegation:

In conducting their investigation, the IRT was obliged by the Code of Conduct

to exercise proper diligence, care and attention; and to perform their duties

diligently and to the best of their ability, and in a manner that bears the

closest public scrutiny and meets all legislative and QPS standards.

The IRT failed to put the requirements of the OPM to the officers involved in

the initial QPS investigation and obtain the officer’s explanation for failing to

meet their obligations. The IRT also failed to interview all the relevant

witnesses.

Section 18 of the HRMM also required the IRT to provide a detailed

comprehensive report attaching all documents (including interview transcripts,

statements, synopses, video and audio tapes, photographs, etc.) relevant to

597 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet. The index references Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane, 8 August 2007), 4-5 – see Transcript Tape [120]-[145]. 598 See, eg, Inspector Webster, Running Sheet Extracts 'Involvement With QPS Internal Review Team (IRT) - 2006 – 2007 - 2008' provided electronically on the CMC Electronic Index.

389

the investigation. They did not do so. Among other things, the report does not

specifically identify or clearly reference or set out in totality or contain copies

of the relevant legislation or QPS policies and procedures.

Explanations provided by the officers in their interviews with the IRT, but not

previously mentioned in their statements made for the Inquest or given in

evidence before the Inquest, were not pursued. During the interviews, the

IRT are sometimes presented with conflicting versions by the officers, but

they did not put the inconsistencies to the officers and therefore failed to

ascertain what actually occurred. For example, Kitching gives inconsistent

evidence about his intention to lodge a Supplementary Form 1 and his

reasons for not disclosing the assault allegations to Dr Lampe during the

autopsy [Allegation 7: The Form 1]. The IRT does not address these

inconsistencies.599

623. The first paragraph is a general description of perceived expectations of the IRT. The

third paragraph was discussed earlier in the context of the seventh allegation and need

not be discussed again. The remaining two paragraphs set out the principal complaints

in relation to this allegation. In short, they suggest the IRT did not put the OPMs to

officers specifically and did not reconcile inconsistent versions.

624. The first proof referred to in the electronic index is the Code of Conduct.600 No specific

reference is made to any particular part of the Code of Conduct. The particular

document referenced is not the issue at 19 November 2004 though little turns on this.

The reference appears to provide qualified support for the first paragraph of the

summary. It is qualified in the sense that the Code of Conduct is 29 pages long; the

short paragraph does not do the document justice. Nevertheless, the general tenor of

the first paragraph appears reasonable and consistent with the Code of Conduct.

625. The second proof is particularly cryptic. It refers to the CMC’s interview with Hurley.601

No particular passage of the interview is referred to. Hurley was not a subject of the

IRT Report. The CMC had retained, and continue to retain, carriage over investigations

into Hurley’s conduct. The interview was not conducted by any of the investigators

subject to the IRT Report. How it could be relevant to any putative failing of the IRT is a

mystery. The only conceivable explanation which I am able to advance is that the

robust interview of Hurley is seen as a model. If it is used for that purpose then it is

599 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 174. 600 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet, [128]. The Code of Conduct appears in HRMM, s 17. 601 Ibid [129]. The index references Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Tape 2.

390

embarrassed by Mr Cranny, Hurley’s legal representative, suggesting an area of inquiry

overlooked by the interviewers. However, the reality is that there is no model interview.

Different interviewers bring their own techniques. In any event, this evidence is not

relevant to the conduct of the IRT.

626. The next several proofs relate to questions asked, in various forums, of Williams,

Webber and Kitching relating to the so called ‘off the record’ discussion. The first is

taken from the examination of Webber by Mr Callaghan at the inquest:

Callaghan: There was, of course, a video of the cell?

Webber: Yes.

Callaghan: Are you aware whether they had watched that video or not?

Webber: I don't believe it was possible for them to have watched the

video up until time of arrival at the station.

Callaghan: Okay. Did you allow them or instruct them to watch the video?

Webber: No, I certainly didn't instruct them to watch - to watch the

video.

Callaghan: Were you present when they did?

Webber: I believe on the - no, I think - no, I don't believe I was present.

I think it was Inspector Williams I was present with on the

Saturday morning.

Callaghan: Right. So, you were aware that they were watching?

Webber: I - yes.

Callaghan: And you didn't ?

Webber: But I think

Callaghan: have a problem with that?

Webber: I think Senior Sergeant Hurley actually had to operate it for

us.

Callaghan: Right. Well, does that mean that you were there watching

him operate it?

391

Webber: He turned it on. I think he then left the room.

Callaghan: Well, who stayed in the room?

Webber: Myself, Williams and Kitching.

Callaghan: Not Leafe? Not Hurley?

Webber: Not that I can recall. As I say, I think Hurley went to his office.

Callaghan: His office? It was a fairly small station, wasn't it?

Webber: It is.

Callaghan: His office was really only a few steps away from the filing

cabinet that we see depicted in the re-enactment with Mr

Bramwell?

Webber: Yes.

Callaghan: Do you agree with that?

Webber: Yes.

Callaghan: That's where he was during the re-enactment with Mr

Bramwell, is that right?

Webber: Yes.

Callaghan: That's what I understood ?

Webber: Yes.

Callaghan: you to say before? Was the door open or shut?

Webber: Shut.

Callaghan: Was there a glass panel in the door such that you could see

into the office?

Webber: No.

Callaghan: All right. You're not going to tell us much about the

soundproofing, are you, I take it of that office? You wouldn't

be in a position to comment?

392

Webber: No.602

627. The second proof relating to the off the record discussion was taken from the IRT

interview with Webber:

Because what you've just said then is BRAMWELL's

probably had the, the chance to change his opinion, talk to

other people, be influenced and cross-affected with other

opinions. That could conversely be said about the Police

too don't you think?

WEBBER: Correct. But you've also got to understand that, by the, by

the time she's, she's talking about subs-subsequent events.

At the time and I think if I can actually, if I can actually

locate it somewhere ah, ah the O-P-M's actually refer

somewhere in relation to, to that exact, that exact issue.

Alright. Ah without quoting them verbatim I think it says

something to the effect that it's desirable for witnesses ah -

As far as practical I think is the words.

WEBBER: As far as practical up until such time as the interview. But

that's the entire point, they had been interviewed at that

point in time, they had to continue, they were going to

continue to converse, they had to converse about the

everyday policing, policing activities that were occurring,

occurring on the island. We couldn't actually prevent,

prevent them conversing together.

That's correct. But it, it still, it came to light that HURLEY

and ah KITCHING and there had been conversations

because there was the discrepancies in the time clocks.

WEBBER: Yeah. But that actually, that conversation as I understand

actually took place on the Friday.

Yes.

WEBBER: That is actually mentioned in Detective Senior Sergeant

KITCHING's statement and contrary to what the Coroner

602 Crime and Misconduct Commission, Palm Island Index, 2010, IRT Index Sheet [130]. The index references Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 732.

393

says he was quite open about that and it was mentioned in

his statement.

The point I think too ah would jump there I suppose there's

the issue of the ah witnesses per se, LEAFE, HURLEY,

BENDAROO discussing events and then there's another

comment about um KITCHING, ROBINSON and HURLEY

discussing time discrepancies. I think Inspector WEBSTER

brought that ah to light in his interviews. Um as far as you

know that discussion was only for a matter of minutes while

they operated the tapes is that true?

WEBBER: Yes. I think it was just a straight out question and ah

answer, here's the, here's the tape, he's examined it and

there's a, there's an apparent time dis-discrepancy and he's

asked the question why is that and it's been answered and

that's basically it to my knowledge.603

628. The third proof offered was taken from the examination of Williams by Mr Callaghan at

the inquest:

Callaghan: Well, while you were there, did he get the opportunity to view

the tape?

Williams: I viewed the tape, whether he viewed the tape I don’t know,

he may have.

Callaghan: And you would say that you weren't a party to any agreement

or arrangement whereby he got to view the tape; is that right?


Callaghan: And I'll say the same thing would go for Sergeant Leafe; is

that right?

Williams: Whether they saw the tape or not I really couldn’t tell you.

Callaghan: If they did, you had nothing to do with it?

603 Ibid [131]. The index references Acting Superintendent Interview with Inspector Warren Webber, (Townsville Police Station, 2 August 2007), Tape 2 13-14 – see Transcript Tape 2 [372]-[428].

394

Williams: I never showed - they showed me the tape, they supplied the

tape-recorder.

Callaghan: Yes?

Williams: And put the tape on for me.

Callaghan: Well were they there when you watched it?

Williams: They may have been, yes.

Callaghan: Did you have a problem with that?

Williams: No.

Callaghan: Is it your view that if you're talking to a person of interest to

an inquiry and an aspect of that inquiry is recorded on a

videotape, as a matter of fairness the person involved should

be given the opportunity of viewing that tape before they're

spoken to by [indistinct]?

Williams: What's on the tape is on the tape.

Callaghan: Yes?

Williams: Nothing can change what was on the tape.604

629. The fourth proof relating to the off the record discussion is taken from the IRT interview

with Williams:

WILLIAMS: I can't elaborate on the first part -

That's -

WILLIAMS: - regarding the, the watchhouse security tape, I wanted to

see the tape. I asked for the tape, they put the tape on for

me and the conversation was you will find the tape runs, it

was either ten minutes fast or ten minutes slow. That's it,

that was the extent of the conversation, no more, no less.

604 Ibid [132]. The index references Transcript of Proceedings, Inquest into the Death of Mulrunji (Coroners Court of Queensland (Townsville), Acting State Coroner Clements, 27 September 2006), 465.

395

And, and the conversation was that you elicited information

as to what was going on, what was, what, what was the

difference?

WILLIAMS: The - no that, the, the information was offered to me that

the tape runs either ten minutes fast or ten minutes slow.

Okay. Yes. So that was the off-the-record discussion -

WILLIAMS: That's the off-the-record -

- as, as identified -

WILLIAMS: - discussion.

- by the ah Coroner.605

630. The fifth and final proof offered in support of the complaints regarding the off the record

discussion is taken from the IRT interview with Kitching:




KITCHING: Yes I do.



KITCHING: Well to start with the ah, the issues raised by the Acting











605 Ibid [133]. The index references Acting Superintendent Interview with Inspector Mark Williams, (Police Headquarters, Brisbane), 8 August 2007), Tape 1 16 – see Transcript Tape 1 [466]-[493].

396














KITCHING: As I said ah in my notebook um I just put here took






KITCHING: Well it was ah it was during the, the time that I watched the












KITCHING: HURLEY was there because I asked him to show me the

C-C-T-V footage. He's the officer in charge of the station,




397




















KITCHING: Well we're looking at the time of, of a cause of death. Okay















KITCHING: That's right, yes. That particular conversation was yes. I




398


okay where he was lodged um and issues like that.

So present at that time Senior Sergeant HURLEY, yourself,

Sergeant LEAFE. Anyone else?

KITCHING: I don't know. I don't think LEAFE was present during any of

those conversations?

Okay.

KITCHING: Um it was just my-myself and HURLEY. Because as a

result of the ah briefing or the orientation that HURLEY's

given me through the Police Station that I requested, I then

directed, briefed ah ARTHY, Senior Sergeant ARTHY so

the forensic investigation could be conducted.

Okay. Ah -

KITCHING: And it was during that time that WEBBER went and met

with the Aboriginal Legal Aid Service to discuss about

going to advise the family of the death.

Yeah.

KITCHING: Um so he wasn't with me either.

Mmm.

KITCHING: There was conversation between myself and HURLEY.

Okay.

If it wasn't HURLEY, who else could've you have got a

description of the incident from?

KITCHING: Probably no-one um whoever was in charge of the Station

possibly from LEAFE, ah I don’t know if LEAFE was doing

then. He certainly wasn't in and around there all that time.

Ah I have actually made arrangements at some stage and

I'd have to check my times, but I'd actually made

arrangement with LEAFE to go out um to see the family to

arrange a formal identification of the body. Now that must

be down the track a bit because obviously the body was

399

still in the cell while the forensic examination was being

continued but, but that was conducted as well so look I

don't know where LEAFE was at that time. I certainly didn’t

speak to him, I had never met LEAFE before, I didn't know

him, um I UI, didn’t interview him until later that night, UI

eight o'clock.

Detective Sergeant ROBINSON, do you remember what he

was doing at the time?

KITCHING: No I don't. I don't know where he was or what he was

doing. He ah, he could've been with me while we were

watching that footage possibly, I'm not sure.

Would he have known how to operate that ah machine?

KITCHING: I assume he probably would have. I'd say he'd have to

have.

Yeah, okay. Anything else Acting Super?606

631. At the outset, it seems to me that the use of the term ‘off the record’ has excited a

disproportionate degree of interest. The term appears to carry some pejorative

implication which is not warranted in the context of the actual discussion. It appears

that the term was used by Hurley during his interview with the CMC607 to indicate that

the conversation did not take place during the formal interview or re-enactment. The

evidence does not suggest that off the record was intended to indicate some decision

to conceal the conversation or otherwise keep it secret.

632. The CMC Review makes a number of observations regarding this conversation,

summarising the complaint against the IRT as follows:

The IRT are … dismissive. They make no attempt to ascertain what actually

occurred and put to Williams and Kitching — through leading questions —

that the discussion about the time discrepancy had no bearing whatsoever on

the investigation.

606 Ibid [134]. The index references Inspector Interview with Senior Sergeant Raymond Kitching, (Townsville Police Station, 1 August 2007), Tape 2 31, 33, 34, 36 (Allegation 5: Off the record discussion between Webber, Williams and Hurley) – see Transcript Tape 2 [929]-[1110]. 607 Detective Inspector Ken Webster, Interview with Senior Sergeant Chris Hurley (Townsville Regional Police Office, 8 December 2004), Transcript Tape 2 [455]-[456].

400

While they note that recording the discussions would have lessened criticism

about the lack of independence of the investigation, they do not find that the

discussions should have been recorded. These various statements seem

inherently contradictory.608

633. I do not think it is accurate to assert that the IRT did not ‘attempt to ascertain what

actually occurred’. It is clear that a number of questions were asked to ascertain when

the conversations relating to time discrepancies occurred and who was present.

634. Contrary to the CMC Review’s assessment, I do not agree that the IRT treated the two

conversations on the topic as one. 609 It was apparent that there were at least two

conversations. Kitching spoke of a conversation when he arrived and reviewed the tape

which he seized.610 Williams also spoke of a conversation when he first watched the

tape on the following day. Webber also spoke of watching the video with Williams on

the Saturday morning. Nothing in the IRT Report leads me to the conclusion that the

IRT considered these as one conversation.

635. Nor do I accept that the IRT suggested ‘that the discussion about the time discrepancy

had no bearing whatsoever on the investigation’. However, the IRT did not overstate its

importance – this was not a smoking gun. In questioning Kitching, the IRT limited the

importance to this – the ‘verification or determination of more accurate timings’. This

seems to be the proper importance of the information, that is, to establish more

accurately the time of the events which the video depicted. The real evidentiary value

was in the video recording itself.

636. Finally, I do not accept that the IRT made statements that were ‘inherently

contradictory’. The IRT indicated that had the ‘conversation been tape recorded …

there would have been less cause for criticism’.611 It is not the obvious corollary612 of

this observation that the conversation ‘should have been recorded’, suggesting some

sort of requirement. There was no such requirement. The CMC Review suggested

reliance on OPM s 2.13.8 to create an obligation.613 However, the statement they rely

upon is advisory. It does not form part of an order, policy or procedure. Section 2.13.8

states:

608 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 94 609 Ibid, 93. 610 Cf Report of Investigation Review Team, Queensland Police Service, 'Kitching', 2008, 29. 611 Report of Investigation Review Team, Queensland Police Service, 'Williams', 2008, 21. 612 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 93. 613 Ibid90.

401





those notes.


recollection. The statement that a recording would have created less cause for criticism

should be understood in that context.

638. The final three proofs offered relate to putative inconsistencies in Kitching’s statement

on the failure to include Bramwell’s allegations in the Form 1. I have discussed the

putative inconsistencies in my consideration of the conduct of Kitching. I have also

discussed the evidence at some length and do not propose to restate it here. Suffice to

say, I do not consider that the statements available to the IRT were necessarily

inconsistent. In any event, I do not consider that the IRT failed to properly examine the

failure of Kitching to include Bramwell’s allegation. The IRT questioned Kitching at

length. The complaint seems to be, in reality, a disagreement about the best

interviewing technique. I do not consider this provides any basis for disciplinary

proceedings to be commenced.

Inadequacy of findings

639. The final allegation related to the supposed ‘inadequacy of [the IRT] findings in relation

to the conduct of the investigating officers:

The CMC considers for all the reasons stated above that the IRT’s

recommendations in relation to Kitching and Webber are inappropriate and

inadequate to address their conduct. In summary, the IRT:

• did not consider that disciplinary proceedings were warranted against

any of the investigating officers for any of the allegations

• recommended managerial guidance for Kitching in relation to four

allegations

• recommended managerial guidance for Webber in relation to three

allegations

• made no recommendations in relation to Robinson, Williams or the Acting

Assistant Commissioner.

402

The CMC notes that the IRT, in making recommendations for disciplinary

action, failed to consider the totality of the investigating officers’ conduct,

dealing with each allegation separately, rather than looking for patterns of

behaviour and coming to an overall conclusion.614

640. To a large extent, as the passage suggests, this allegation simply summarises the

CMC Review’s criticism of the IRT. Much of the material is a reformulation of Allegation

1. The principal complaint arising in this allegation is the methodology adopted by the

IRT. The CMC Review suggest that the IRT dealt with each matter separately rather

than taking a more holistic approach. I accept that a holistic approach may be

warranted but observe that the whole is rarely more than the sum of its parts. I have

accepted, in the main, the reasoning of the IRT and concluded, for the most part, that

there is little substance in many of the allegations. It follows that I do not accept that the

IRT failed to come to a reasonable conclusion.

Additional Allegations

641. The CMC Review sets out other allegations that are not specifically addressed in the

conclusions in ch 13. In particular, the CMC Review rejected the consideration of

additional matters isolated by the IRT.615 Instead, they suggested that there were some

significant matters which the IRT should have but failed to consider.616

642. The additional matters identified by the IRT related to forensic processes, investigative

process and control of the incident. The CMC Review suggested that the ‘inclusion of

these allegations in the IRT report is confusing. The allegations themselves are vague,

and the evidence, findings and recommendations provide little further detail’. This

criticism seems to reflect the CMC Review’s mistaken view that the IRT were primarily

considering disciplinary matters. However, the matters identified by the IRT clearly are

not allegations. They are the wider operational considerations. The identification and

rectification of systemic organisational issues was an important consideration for the

IRT and was consistent with their charter.

643. A proper understanding of the IRT’s role also explains why the IRT did not examine the

matters described in ch 10 of the CMC Review. These additional matters were not

raised by the Acting State Coroner and did not have organisational implications. Whilst

the CMC Review suggests that the IRT should have considered all of these issues,617 I

do not consider that their failure to do so is censurable. I also note that only limited

614 Ibid 174-5. 615 See ibid ch 9, particularly 136. 616 Ibid 137. 617 Ibid 42.

403

reference is made in the allegations in ch 13 or in the electronic index. For the purpose

of completeness, I will touch upon the complaints set out in ch 10.

The failure to ask Hurley why he released Roy Bramwell on 19 November 2004 without

questioning him

644. The CMC Review felt that the IRT should have pursued why the initial investigators did

not question Hurley about the release of Bramwell on 19 November 2004. 618 In

hindsight, Hurley’s indication to the inquest that Bramwell was too intoxicated to be

interviewed appears to provide a complete answer insofar as Hurley’s decision is

concerned. Consequently, by the time the IRT commenced considerations, it may no

longer have been considered an issue. However, it does not answer the question as to

why the initial investigators did not pursue this line of inquiry. I do not consider the

failure of the IRT to pursue this line of inquiry is of any great significance.

The failure to ask Hurley about his version of events changing after his initial interview on 19

November 2004

645. The next matter raised is the failure to question the investigators about the supposed

change in Hurley’s evidence.619 I am not persuaded that Hurley’s elaboration in the re-

enactment necessarily constituted a change in his version. In any event, the main issue

appears to be the suggestion that there was some collusion between investigators and

Hurley, or that Hurley could have heard Bramwell’s allegations. The CMC has

concluded that there is no evidence of collusion and the IRT did consider the possibility

that Hurley might have heard the Bramwell allegations.620

The investigation team’s failure to interview Roy Bramwell on 19 November 2004

646. The next matter of complaint was the failure to question Kitching as to why he did not

interview Roy Bramwell on 19 November 2004. I note that, after arriving on Palm

Island, Kitching conducted interviews with Hurley, Bengaroo, Gladys Nugent, Patrick

Bramwell, Leafe and Edna Collburra. The last interview concluded at 8.35pm. I have

previously discussed my disagreement with the CMC Review view that Bramwell’s

interview should have been a priority.621 Consequently, I see no merit in a complaint

that the IRT did not question Kitching in regard to this supposed failure.

618 Ibid 145-6. 619 Ibid 146. 620 Letter of Superintendent and Inspector Queensland Police Service to The Hon Martin Moynihan QC AO, Chair, Crime and Misconduct Commission, 30 April 2010, 12. 621 See above, [601].

404

The statement obtained from Roy Bramwell by Robinson

647. The CMC Review suggested that Robinson’s conduct should have been considered by

the IRT, and advance a reason for this. 622 However, Robinson was not adversely

named by the Acting State Coroner, a trigger for the IRT considerations. Moreover, the

IRT were aware the CMC Review were conducting investigations into Robinson. The

IRT made it clear that they were not investigating Robinson. The CMC Review were

aware of this:

On 30 November 2007, Detective Superintendent A Cross, Misconduct

Investigations provided a direction to the CMC Investigator to continue with

the investigation into Roy Bramwell’s complaint against Detective Sergeant

Robinson. That direction resulted from a discussion with Acting

Superintendent R of the QPS Review Team who advised - “that the

review team was not intending to conduct any interviews with Detective

Robinson in connection with MI-07-1435 and he was of the view that the

status of their investigation was such that the finalisation of the Roy Bramwell

matter pertaining to the disposal of the statement could be more efficiently

and effectively dealt with in conjunction with matters presently assigned to

you” (meaning the CMC Investigator).623

648. In particularising the first two allegations, the CMC Review led its evidence with the

involvement of Robinson in the investigation. This particular aspect of the CMC

Review’s allegations, the involvement of Robinson, was also considered by the CMC in

its own separate investigation of complaints said to arise out of his involvement. Of

some interest is the CMC’s own conclusions on the ‘Involvement of Detective Sergeant

Robinson into Initial Police Death Investigation’, the CMC recommended that he be

given ‘remedial training particularly in the manner of taking complainant / witness

statements to ensure all evidential requirements are satisfied’.624

The failure to interview Steadman

649. A further complaint revolves around the failure to interview Steadman.625 However, the

information initially given to the investigators suggested Steadman arrived after the

death.626 I note that the CMC did not interview Steadman until 8 December, two weeks

622 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 150. 623 Memorandum of Inspector K J Webster to Director, Misconduct Investigation, Crime and Misconduct Commission, 14 March 2008, 4 (emphasis in original). 624 Ibid 113. 625 Crime and Misconduct Commission, ‘CMC Review of the Queensland Police Service’s Palm Island Review’, 2010, 152. 626 Ibid 151.

405

after assuming responsibility for the investigation. It is paradoxical that the investigators

should be criticised by the same body for not undertaking the interview in the limited

time available to their investigation. In the absence of any complaint about the failure to

interview Steadman, one wonders why the IRT should have pursued it with the

investigators.

The failure to ascertain whether Hurley, Leafe and the PLO viewed the watch-house

surveillance tape before the investigation team arrived

650. The final complaint was that the IRT did not establish whether Hurley, Leafe or the PLO

had watched the watch house surveillance tape. On this point, the CMC Review

demonstrates some confusion. They note:

The CMC recognises that the appropriateness of the officers watching the

video is a difficult issue. On one hand, it could be argued that the officers had

an obligation to watch the video, to see if there was any immediate danger or

obvious cause of death that had to be dealt with immediately. On the other

hand, it could be argued that watching the video would give the officers the

opportunity to ensure that their version of events was consistent with the

evidence of the video.627

651. Given the CMC Review’s own confusion on this point, I do not believe there can be any

valid criticism directed to the IRT for failing to address this matter directly.

Conclusion

652. I have considered the actions of the IRT in preparing their report on the instructions of

the Commissioner. Their report is not perfect. I am of the opinion that the members of

the IRT undertook their duties conscientiously and competently. I do not accept the

CMC Review view that there is evidence supporting either disciplinary proceedings or

official misconduct. Consequently, I do not propose to take any action against the

members of the IRT.

627 Ibid 153.

1

APPENDIX

Copies of Correspondence between the QPS and CMC

Report in Response to the ‘CMC Review of the Queensland ... · Report in Response to the ‘CMC...

Documents

Transcript of Report in Response to the ‘CMC Review of the Queensland ... · Report in Response to the ‘CMC...