Joh's police still got that Louisiana rhythm

Queensland's Crime and Misconduct Commission lays waste to police investigation of Cameron Doomadgee's death in custody ... The smell of cover-up ... The roar of the police union ... Ghosts of Fitzgerald ... Stephen Keim and Alex McKean report

Reflections

Huey Long: forerunner to Bjelke-PetersenThe Queensland over which Joh Bjelke-Petersen reigned had more than a passing resemblance to the realm of the imaginary Governor Willie Stark of Robert Penn Warren's novel All the King's Men.

The novel was about Louisiana of the 1930s and its governor, later senator, Huey Long - the real person on whom the character Stark was based.

Wikipedia describes Stark as, "a driven, cynical populist in the American South during the 1930s".

Seventeen years later, under the influence of the Fitzgerald Report (Report of a Commission of Inquiry Pursuant to Orders in Council dated 26 May 1987; 24 June 1987; 25 August 1988 and 29 June 1989) and with a young reformist lawyer Wayne Goss installed as premier, Queensland felt that it had left its Louisiana days behind.

Two decades later, it was the author of the report, Tony Fitzgerald QC, who voiced again what many people had been thinking.

The lessons of history were being forgotten.

In a speech on July 28 last year, delivered to mark the 20th anniversary of his famous report, Fitzgerald said of the period after the re-election of Peter Beattie's Labor government in 1998:

"Tacitly at least, Queenslanders were encouraged to forget the repressions and corruption that had occurred and the social upheaval that had been involved in eradicating those injustices.

Younger Queenslanders know little of that era and are largely ignorant of the possibility that history might be repeated. Ethics are always tested by incumbency. Secrecy was re-established by sham claims that voluminous documents were cabinet-in-confidence.

Access can now be purchased, patronage is dispensed, mates and supporters are appointed and retired politicians exploit their political connections to obtain success fees for deals between business and government.

Neither side of politics is interested in these issues except for short term political advantage as each enjoys or plots impatiently for its turn at the privileges and opportunities which accompany power.

Unfortunately, cynical, short-sighted political attitudes adopted for the benefit of particular politicians and their parties commonly have adverse consequences for the general community.

The current concerns about political and police misconduct are a predictable result of attitudes adopted in Queensland since the mid-1990s."

The unease to which Fitzgerald gave voice had been exacerbated in 2004 in the immediate aftermath of the death at the Palm Island police station on November 19, 2004 of Palm Island resident Cameron Doomadgee - known to his friends and family as Mulrunji.

Very little of what has been done by police or politicians in the wake of that death has been beneficial to public confidence in the administration of justice in Queensland.

On June 17, the Crime and Misconduct Commission presented its long awaited report entitled CMC Review of the Queensland Police Service's Palm Island Review.

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Moynihan of the CMCThe head of the CMC, Martin Moynihan QC, has exhorted Police Commissioner Bob Atkinson to take decisive action to discipline officers involved in the biased, unprofessional and shambolic investigations conducted into Doomadgee's death.

While the CMC report is critical of the conduct of police, it stops short of recommending criminal charges against any of the officers involved.

Rather than level charges against police officers, as it is empowered to, the CMC has challenged the police commissioner to bring disciplinary proceedings.

A game of brinkmanship has ensued, with the police commissioner most recently allowing the deadline for recommending disciplinary proceedings to lapse.

The police union has been stridently engaged, seeking a Supreme Court injunction to restrain Atkinson from pursuing any disciplinary action.

On August 19, Justice Peter Lyons refused injunctions sought by two officers to prevent Commissioner Atkinson commencing disciplinary proceedings.

He also ordered that because of perceptions of bias Atkinson should delegate disciplinary proceedings to another senior officer.

The failures that occured in the investigation had their foundation in the Police Service's inability to learn from the past.

The CMC says the police have failed to respond sufficiently to the findings of the Royal Commission into Aboriginal Deaths in Custody and to implement its own protocols and procedures as a response to those findings.

The political response has also been disappointing and reminiscent of the refusal to acknowledge faults in the Police Service which pre-empted the Fitzgerald Inquiry.

At page 66 the Fitzgerald Report said:

"The Government's unwillingness to listen to criticism of the Police Force and its constant support for police in all circumstances, accompanied by often trenchant attacks on police critics, its disinterest in criminal justice, its ineffective systems for dealing with complex social and legal issues, and its lack of objective advice on such matters all contributed to the situation which developed and led, ultimately, to the setting up of this inquiry."

Commissioner Atkinson: slow to respondPremier Bligh, when confronted with correspondence showing that Atkinson attempted to pressure the CMC to suppress its report, sought to justify Commissioner Atkinson's actions.

The extent that the leadership, both of the government and the Queensland Police Service, responds constructively to the systematic and organisational problems outlined in the CMC report will be crucial to the future of both entities.

The report presents a challenge and an opportunity. If the service persists with a strategy of responding to any criticism, no matter how well justified, by backing its officers and the government ratifies this approach, then public confidence in both institutions can only be further eroded.

Historical context

It was shortly before 11.30am on November 19, 2004, when Mulrunji died at the Palm Island watch-house.

He had been arrested and detained by Senior Sergeant Chris Hurley.

An autopsy performed four days after his death revealed his death was not from natural causes.

In that four day period initial investigations were performed by an investigative team of police officers sent from the mainland, along with officers normally stationed on the island.

The CMC was also notified of the death and it was reported to the State Coroner.

Proceedings to date

The CMC assumed responsibility for the investigation after the autopsy report showed the death was not from natural causes.

The investigations by the CMC were placed on hold while two inquests were conducted.

Findings were made by the Acting State Coroner, Christine Clements, in late 2006.

She was critical of the QPS investigations and included 14 specific points in relation to how the matter had been initially investigated by the police.

The findings of the first inquest have since been set aside. Another inquest has been conducted by Magistrate Brian Hine, who confirmed many of the critical findings made by Magistrate Clements.

Chris Hurley has been tried and acquitted of manslaughter.

In light of the criticisms made by the coroner in the first inquest report, the Police Commissioner set up an Investigative Review Team to examine and report on the initial investigation.

On November 24, 2008 (nearly four years after Mulrunji's death), the CMC was provided with the IRT report entitled the Palm Island Review.

The CMC review of June 17 is, formally, a review of the IRT review of the investigation.

Methodology

The CMC considered the IRT review, the evidence available to the IRT officers, and:

• Relevant sections of the operating procedures manual, which provide directions that indigenous witnesses be assumed to have special needs, and that deaths in custody not be assumed to be caused by suicide or natural causes;

• The QPS code of conduct, which requires officers to discharge their duties with professionalism and integrity, and to act in the public interest;

• The recommendations of the Royal Commission into Aboriginal Deaths in Custody, which both the Queensland government and QPS claim to have implemented.

Allegations of misconduct and findings

The IRT review responded to nine allegations, to which the CMC added a further three. The CMC's views on the allegations are:

1. Officers serving on Palm Island being involved in the investigation

The officer in charge of the CIB on Palm Island, known to be a friend and Officer Hurley, clearly should not have been involved in the investigation into Mulrunji's death, in any way.

2. Hurley transporting officers from the airport

Officer Hurley driving the officers assigned to investigate the circumstances of death from the Palm Island airport, "compromised the appearance of impartiality" of the investigation.

3. Dinner at Hurley's residence

It was inappropriate for investigating officers to be having dinner, and drinking alcohol, with the person "most likely to be the subject of the investigation in a matter that could involve homicide".

The IRT failed to recognise the error of judgment the event represents, which further compromised the appearance of impartiality of the investigation.

4. Discussions between witnesses

A directive should have been issued that Hurley and another officer, potentially witnesses in the investigation, should not discuss the incident, prior to being interviewed.

The IRT ignored the operating procedures manual requirements and preferred a "practical interpretation", that the correct ethical position was for officers to declare they had spoken about the events.

5. Off the record discussions between officers

The investigators breached another OPM requirement by failing to record a vital conversation between Hurley and investigating officers about discrepancies in the times between watch-house video recording equipment.

6. Lack of vigour in questioning the police liaison officer

The investigating officers failed to follow-up on questioning the PLO concerning what he saw after Hurley and Mulrunji "fell in the watch-house", after the PLO provided a vague answer.

7. The Form 1

The Form 1, sent by QPS to the Coroner to assist in determining whether there should be an autopsy, "included only information adverse to Mulrunji and excluded any information adverse to Hurley".

Allegations that Hurley had assaulted Mulrunji were excluded, whereas hearsay that the deceased had drunk bleach was included.

The IRT had failed to expose the double standard applied by the officer filling out the Form 1. The IRT, in this instance, appeared to be "ignoring important parts of the OPM which are inconsistent with the actions of the investigators".

The CMC review accuses the IRT of "simply providing reasons to justify" the failures of the investigators.

8. Lack of support to indigenous witnesses

The investigators failed to offer support persons to the indigenous witnesses they interviewed.

The IRT failed to recognise that this was directly in breach of specific provisions of the OPM.

9. Notification of the deceased's family

The decision to delay for four hours notifying the relatives of the deceased was unacceptable. The IRT's support of the decision to delay was described by the CMC Report as "puzzling", given the emphasis placed on early notification in both the OPM provisions and the Aboriginal Deaths in Custody Royal Commission.

The CMC concluded that it was hard to avoid the perception that the IRT was trying to justify the decision not to notify the family earlier.

Conclusions on the initial investigation

The CMC determined that the investigation into Mulrunji's death was seriously flawed.

"Its integrity was gravely compromised in the eyes of the very community it was meant to serve."

The investigation "failed the people of Palm Island, the broader indigenous community, and the public generally".

Further it "called into question the reputation of the service and damaged public confidence in the integrity of the Queensland Police Service and its members".

Conclusions on the Investigative Review Team

The CMC report found that the IRT failed to recognise the strong public interest in the case required that a thorough and impartial investigation be conducted.

Instead, the IRT's primary focus was to allow the officers involved in the original investigation to provide largely unchallenged explanations for their conduct.

In particular:

• The IRT failed to hold the officers involved in the initial QPS investigation accountable for their conduct;

• It justified conduct of the initial QPS investigation team on doubtful grounds;

• It suggested explanations for the officers conduct not advanced by the officers themselves;

• It accepted evidence without testing it;

• It asked a series of questions appearing to be designed to elicit a specific desired response;

• It asked questions that created a perception of bias;

• It demonstrated a lack of thoroughness and a lack of diligence;

• It made inadequate findings in relation to the conduct of the investigating officers;

• It 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.

 Again, the echoes of the Fitzgerald Report are clearly discernible.

At page 81, the Fitzgerald Report said:

"The internal affairs section is 'a disastrous failure, inept, inefficient and grossly biased in favour of police officers'."

Systemic issues

The CMC report said the QPS procedures in place at the time of Mulrunji's death were ignored, as were the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

In those circumstances, the CMC report expressed a lack of confidence in any new procedures announced by QPS.

Organisational issues

Queensland police: holding the lineIn the CMC report, Police Commissioner Atkinson is accused of not understanding or acknowledging the failures of his officers, and the service as a whole is reminded of the importance of being thorough and impartial, specially when investigating their own officers.

The IRT review is described as evidence that the service is devoted to an erroneous belief that the "best way to protect the reputation of the service is not to expose its shortcomings", a belief the CMC says will, "erode public confidence and debilitate the morale of good officers and tarnish them unfairly".

The CMC report states that the service was still infected with problems of bias in the investigation of deaths in custody, identified by the Royal Commission, in particular:

• The desire to protect other officers from blame and scrutiny;

• Explanations provided by police officers being treated with more credibility than they deserve.

Conclusion

The CMC has called on the service to protect its reputation, engender public confidence and maintain high standards by taking, "certain, timely, responsive and decisive action when there is a failure to meet these standards".

The CMC sees the commissioner as the individual responsible for the culture which produced the review, for which he must be held accountable.

The current situation illustrates that the lessons of Fitzgerald and RCIADIC have not been learned by the QPS. It should be clear to the commissioner, and the government, that a radical shift in approach is required in response to allegations of misconduct on the part of police.

Afterword

Anna Bligh: unhealthyOn the day that the CMC report was released, a related but different controversy broke.

In February 2010, the Premier of Queensland, Anna Bligh, had announced the re-appointment of the Police Commissioner, eight months before his term had expired.

A week before the CMC report was announced, Bligh told state parliament that this re-appointment had occurred with the approval of the CMC chairman, Martin Moynihan, the approval being a statutory requirement.

On the day the report was released, Moynihan made its clear that he had only been told of the re-appointment shortly before the announcement was made and when it was a fait accomplit.

That controversy has sloughed its way to a stalemate.

Where democracy and the rule of law are healthy, the upper echelons of the police force and the upper echelons of politics respect each other and keep a healthy distance.

In such circumstances, both parties keep each other honest and act quickly and appropriately when any hint of a departure from propriety occurs.

In contrast, a creeping closeness between politics and law enforcement suggests that the objects for which government was established are giving way to more personal concerns.

Failure of police to properly investigate their own; failure of the internal review processes to appreciate and address those issues; early re-appointment of a police commissioner while a significant controversy is being investigated; late or inadequate consultation by government with the propriety watch dog; politicians going to bat for the police commissioner over attempts to keep reports into misconduct secret; and an apparent lack of urgency and concern at the political level about police propriety issues: these are not signs of a healthy democracy.

It was just under 12 months between Tony Fitzgerald's 20th anniversary warnings and the release of the CMC report into the investigation of Mulrunji's death.

It has not been an encouraging 12 months. The ghosts of Willy Stark have not been laid to rest. Comparison with 1930s Louisiana still beckons.

Who would have foreseen that on December 7, 1989 as the newly elected Wayne Goss was sworn in as premier?

Surprise us and save us, Anna Bligh.      

Stephen Keim
Alex McKean
Australian Lawyers for Human Rights