Utilising the Doomadgee case, research findings, academic commentary and other evidence assess the proposition that police discretionary decisions work against the interests of Aboriginal and Torres Strait Islander peoples.
Discretion is the ability and authority an individual exercise in a particular situation. Police discretion is a decision-making process carried out by police officers whereby they have the power to choose if they will follow police procedure or decide to give someone a warning and let them off on the offense they might have committed (Lum, 2011). The types of cases in which police discretion is exercised include traffic violations and domestic violence.
Police caution attributes to what people view and consider as racial profiling because the police personnel is trained to utilize their discretion while upholding their duties to work in line with the statistics or perceived statistics that have been provided to them (Lum, 2011). Particular races and ethnicity are associated with a higher likelihood of guilt to committing crimes, and this is a factor that is considered by police in their decision-making process. This reasoning and decision-making process is technically illegal based on the fact that discretion is not deemed as a science which has specified rules and regulations. However, it is tough to prove before a Judge in Court on the use of racial profiling in warranting the arrest of an individual.
In 2004, a resident of Queensland, Palm Island Cameron Doomadgee died while in custody inside a police cell. His tribal name was Mulrunji. When Mulrunji died in his cell, there were public disturbances which led to a political, media, and legal sensation that went on for three years. An Australian police officer was a person of interest in a criminal trial by the Attorney General for the first time since the establishment of the public prosecution office based on this case. The officer in question was acquitted of the charges against him by a jury in 2007 after he had been accused of the death of Mulrunji while he was in custody (Brennan, 2007). There were two legal questions that came up from the death of Mulrunji. The first question was whether the taking of Mulrunji into custody was a lawful act. The second question was if the injuries inflicted on him were the reason for his untimely demise. The arresting officer was the individual responsible for causing injuries on Mulrunji. Ideally, this incident raised political questions relating to the 1990 Royal Commission into Aboriginal Deaths in Custody. The purpose of the commission was to prevent deaths of Aboriginals and Torres Strait Islanders who were in custody. It was questionable whether the recommendations of the committee had been implemented by the Government or just ignored.
The Aboriginal and Torres Strait Islander community in Australia comprises the people who suffer from racial discrimination. The basis of this discriminative perception is the fact that the ‘superior’ communities consider them to be of low social status. As such, studies in the recent past confirm that the Aboriginals and Torres Strait Islanders have been targets of police discretion regardless of the manner of crime committed. Hence, despite the proposed Royal Commission into Aboriginal Deaths in Custody in 1990, there is no form of accountability about the demise of the people of Aboriginal and Torres Strait Islander origin in the hands of the state.
The State can only affirm of two cases in which members of the police force faced criminal charges. Mulrunji was an Indigenous Australian; a synonym of Aboriginals. He was 36 years old at the time of his death. His death occurred an hour after he had been arrested and charged with causing a public nuisance. Mr. Mulrunji was placed in the back section of Palm Island Police station which was a two cell lockup. The officer who arrested Mulrunji was Senior Sergeant Chris Hurley (Head, 2006). Together with his liaison police officer of indigenous origin known as Lloyd Bengaroo, they were flown off the Island on Monday a few days after Hurley’s house was burnt and both of them receiving death threats. Since the 1990 Royal Commission was handed down to the Government, there had been 146 cases of the deaths of Aboriginal and Torres Strait Islander Australians in custody.
Mr. Mulrunji was the 147th person, and his death resulted in an uproar from the residents of the Island. After the death of Mulrunji, an autopsy done by Coroner Michael Barnes was presented to the family a week after his death. The autopsy report stated that Mulrunji had been injured and suffered four broken ribs. The broken ribs ruptured his spleen and liver (Head, 2006). He also had a blood content of 0.29 that was as a result of consuming a cocktail which included a sweet cordial mixed with methylated spirits. The reason for Mulrunji’s death was an intra-abdominal hemorrhage that resulted from a ruptured portal vein and liver.
During an interview, family and friends had to recant the events leading to Mulrunji’s death. He had earlier that morning visited his new baby niece. During the tour, he was drinking beer but was not drunk and had a bucket of mud crab which he was going to sell. He then made his way from his sister’s and mother’s house to Dee Street where the police arrested him (Brennan, 2007). As he was walking on Dee Street, he was singing the song “who let the dogs out,” when the Senior Sergeant Hurley passed him. Earlier that day Chris Hurley, a white Australian had been investigating complaints by Andrea, Anna, and Gladys Nugget who claimed to have been assaulted by Roy Bramwell.
Gladys had requested the Senior Sergeant to accompany her in her quest to safely retrieve her medicine from Bramwell’s house. At this time Mulrunji taunted at the Police liaison and later on was arrested for public nuisance. In this case, Mulrunji’s arrest was based on the stir up that he caused in public from what he had seen happen to a fellow Aboriginal. The decision made by Senior Sergeant Hurley of intervening and arresting Mulrunji was arguably not appropriate since he had only caused a minor uproar (Shwarten, 2010). The uproar was a reaction to his observation of a fellow Aboriginal arrest and the police liaison being part of it. The arrest of Mulrunji was justifiably unfair due to the injuries that he acquired in the process. This case is a clear example of how a minor matter can invoke severe and offending consequences that led to the custodial remand and death of the victim.
The spokesman for Mulrunji’s family, Brad Foster, claimed that fifteen minutes had elapsed before the inmates went through the usual seven-second check. The check is done when an individual arrives at the police station before accosting them to their cells. A second police officer observed that Mulrunji was cold to the touch and had a strange color forty minutes after being placed in his cell. This officer was unable to find a pulse. The arresting officer Senior Sergeant Chris Hurley quickly went to the cell after being alerted of Mulrunji’s situation (Head, 2006). He thought that he had been able to detect a pulse. Later on, an ambulance was called and arrived within 15 minutes. However, there were no attempts made to resuscitate the inmate while they waited for the arrival of the ambulance. The autopsy report stated that performance of resuscitation could not have saved Mulrunji.
A one-day directions hearing took place in February 2005 holding a full coronial inquiry. It involved the death in custody of Mulrunji. Mr. Barnes who was the coroner decided to have the investigation on Palm Island so that the residents would get the chance to observe the process. The evidence given by the police and medical evidence were however taken to Townsville because of safety concerns for the police and logistical issues (Shwarten, 2010). The coroner was assisted by two senior counsels during the directions hearing. The island had no premises that were large enough to fit the crowds which were expected to attend the directions hearing; therefore it was held under a marquee.
The Doomadgee family during the trial requested the deceased to be referred to as Mulrunji which was in line with their customary practices. Coroner Barnes disclosed that in the early 1990s he had the privilege of heading the Criminal Justice Commission where during his tenure several complaints about Charles Hurley had been brought forward. He said that he had not handled the investigations and could not remember the complaints. Mr. Barnes, however, made the decision that the complaints which had been brought against Mr. Hurley back then were unsubstantiated (Lum, 2011). Mulrunji’s family lawyers and Senior Sergeant Hurley requested that Mr. Barnes be disqualified from the case because he might be unfair or favor one worrying party in his ruling. Coroner Christine Clements was appointed to take over and found out that Mulrunji had died as a result of the punches he had gotten from Chris Hurley. She also accused the police of not thoroughly investigating the case.
There was footage from the cell that showed Hurley sliding down on the wall after checking for a pulse. This reaction was a sign of frustration after realizing that the inmate had died and the primary reason for his death might be the injuries he had inflicted on the detainee (Koch & Gerard, 2004). The kind of behavior that is usually displayed by a guilty person goes in line with the reaction officer Hurley displayed.
Police discretion earlier noted is exercised in sensitive matters as opposed to minor offenses. The fact that this form of preference has no explanation or limits grants the law enforcers authority to abuse it in their favor. Between the year 1980 and 2011, deaths of Aboriginal and Torres Strait Islander Australians was at a record 203. This is a clear indication that police discretion decisions work against the interests of Aboriginal and Torres Strait Islander people. Research studies show a trend that is brutal and against the interests of the victims. A prior case study to the case of Mulrunji Doomadgee was a similar incident that cost the life of a sixteen-year-old Aboriginal youth by the name John Pat (Grabosky, 1989).
Upon his arrest Pat was first knocked down by a police officer just before being hauled violently into a police van. The assault continued in the police station that saw Pat succumb to internal head injury caused by a fractured skull in addition to severe bruising, torn aorta, and a few broken ribs. In a similar manner as to the prosecution of the police officer in the Mulrunji Doomadgee case, all police officers involved in the arrest of John Pat were charged and prosecuted for manslaughter and later acquitted (Grabosky, 1989). This further asserts the fact that police discretion which resulted in the detention of Mulrunji was based on his race (Thorburn, 2008). He was an Aboriginal which to the police was attributed to individuals who causes trouble automatically leading to his arrest at the slightest hint of any unlawful act such as public nuisance.
The findings based on cases relating to the deaths of Aboriginal and Torres Strait Islander people while in police custody show that the police exercised their right to discretion with violence when arresting the offenders. The officers charged are later on acquitted after prosecution. These failed trials work against the interests of Aboriginal and Torres Strait Islander people (Thorburn, 2008). Justice is barely accorded to the victims or their immediate kin.
Based on the facts of the Mulrunji Doomadgee case, the police officers conducting investigations were acquaintances to the prime suspect in the murder case; Sergeant Christopher Hurley. While the investigative group was from a different jurisdiction, they dined and had drinks with the primary suspect upon arrival at Palm Island (Schwarten, 2010). This acquaintance automatically compromised the investigations as per the directive of Coroner Christine Clements. In the instance that the chief investigator publicly expresses their acquaintance with the primary suspect in the case, the public has every right to develop mistrust against the police force (Lum, 2011). It was rather evident that the force was acting in a manner that suggested that they were above the law and the Aboriginal and Torres Strait Islander peoples’ interests were not at the core of their responsibilities.
A review conducted in 2010 on the subsequent investigations carried out by the police following the circumstances behind Mulrunji’s death by the Crime and Misconduct Commission of Queensland did find the investigations into the case rather “seriously flawed, its integrity gravely compromised” (CMC, 2010). These findings were arrived at after the same commission’s finding during the trial; evidence presented before them was not enough or capable of proving before any disciplinary tribunal in warranting Hurley’s responsibility in the death of Mulrunji Doomadgee. The contradicting findings from the same investigative body amplify the proposition that police discretionary decisions work against the interests of Aboriginal and Torres Strait Islander people. Nonetheless, the police remain as the same body responsible for investigating deaths in custody; incidences that they should be avoiding in the first place.
The favoritism applied in police discretion should be factual and based on the magnitude of the offense rather than the race of an individual. If the police arrest a white Australian, the kind of treatment they get is very different from what Mulrunji received (Koch & Gerard, 2004). There most certainly would not be some form of excessive force being used by the police. The excessive force exercised by the police on Mulrunji was because he was an Aboriginal Australian. Police officers are supposed to uphold the law. They should be just and fair to all people irrespective of racial differences.
The police waited for a longer time period after Mulrunji’s arrest which was not standard procedure before they attended to him. This neglect was accorded because of racial differentiation. The unfairness that comes with being an Aboriginal and Torres Strait Islander has been seen and felt through the 147 cases reported on Aboriginals dying in custody (Brennan, 2007). Aboriginal and Torres Strait Islanders have witnessed and inherited the criminal justice attributed to them by the police, and this has in effect caused relations between them and the police to become worse. Rather than seeking and implementing strategies to improve the relations, there is still a standoff between these two parties. A good example of this continued strain is whereby Aboriginal and Torres Strait Islander people had gone hunting in an unfenced area around the Western parts of Australia. The Land Administration Act in Australia allows traditional landowners to track and perform other cultural pursuits on leases which have embraced their lands. Station owners usually respect these rights, but in this particular case the station staff called the police and reported the incident.
The police dispatched officers to intercept the Aboriginal and Torres Strait Islanders where they allegedly showed bad behavior and eyeballed the elders. With such cases reported it is no surprise that there is constant tension brewed between indigenous people and the police. Police have also been reported to use inappropriate language towards the Aboriginal and Torres Strait Islander youths. The police once stopped two native boys aged 14 and ordered them to stop, or they would shoot them on site (Koch, 2004). Such an experience is traumatic to anyone especially when expressed to a young person. These young individuals will grow up fearing and hating the police due to the treatment they received.
It does not help the law enforcers in any way if they keep on mistreating Aboriginal and Torres Strait Islander people solely because of their race. It is also illegal, and police reported mistreating them should face arrest. The police need to turn a new leaf and exercise respect for all regardless of racial and ethnic association. They need to uphold their duty without any bias. There is hope that if the police can be fair, just and respectful, then the strain that exists between the two parties will end. The Doomadgee case is a perfect example of how police discretion can cause rivalry between authority and residents. The racial aspect of being Aboriginal and Torres Strait Islander that has caused a lot of bias towards them by police officers to the extent that they use excessive force is discriminatory. A police officer should go through regular intervals of training during their service so that they can uphold good morals and ethics (Thorburn, 2008).There should also be solid punishments that officers face when they are proven guilty of causing any form of harm to an individual regardless of racial differentiation.
Disciplinary action on officers ought to be implemented and effected such as suspending an officer for a longer time if they are found guilty of prejudiced police discretion. Aboriginal and Torre Strait Islanders should also report the biased cases so that the rot in the police department can be dealt with immediately and appropriately to eradicate the present rivalry between the two groups.
References
Brennan F. (2007). Australia Day recalls matters of life, death and justice. The Catholic Weekly.
Crime and Misconduct Commission (CMC) (2010). CMC Review of the Queensland Police Service’s Palm Island Review. Author
Grabosky, Peter N. (1989). Chapter 5: An Aboriginal death in custody: the case of John Pat. In Wayward Governance: Illegality and Its Control in the Public Sector, Australian Institute of Criminology, Canberra
Head M. (2006). Australian coroner: Police killed Aboriginal prisoner on Palm Island. Indymedia.
Koch T. (2004). Island kids get to the art of the matter. The Australian. p. 1.
Koch T. & Gerard I. (2004). Second autopsy for Palm Islander. The Australian p. 1 and 6.
Lum C. (2011). The Influence of Places on Police Discretion Pathways: From Call for Service to Arrest. Justice Quarterly. 28:4 631 – 665.
Shwarten E. (2010). Police colluded to protect Senior Sargeant Chris Hurley over death in custody of Cameron Doomadgee – Coroner. Herald Sun.
Thorburn M. (2008). Justifications, Power and Authority. Yale Law Journal. 117(6): 1070 – 1130.
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