Cross-posted from Andrew’s blog.
Queenslandâs Acting Premier, Anna Bligh has announced Sir Laurence Street, the former NSW Chief Justice, has been appointed to review the actions of the Director of Public Prosecutions relating to the death of Mulrunji in police custody on Palm Island.
I notice that the statement announcing the appointment does not use the term âreviewâ? at all, instead using the term âsecond opinionâ? on four occasions. This is a change from two previous statements issued by the Attorney-General within the last fortnight, here and here, which both repeatedly refer to a âreviewâ? of the DPPâs file on the Palm Island matter.
Indeed, according to The Courier-Mail, Anna Bligh âstressed he would not be reviewing the DPP and was simply providing a second opinion on the case based on the evidenceâ?. It is hard to be certain without seeing terms of reference (I havenât been able to find anything online), but this seems to me to suggest that the so-called review may well not address some of the major questions about the DPPâs actions. This includes a key question of how the DPP could make a categorical statement [link to pdf] that the death in custody âcould only be the result of a complicated fallâ?, saying this was âthe only satisfactory explanationâ?.
The appointment of Sir Laurence Street has reportedly been welcomed by some long-standing Aboriginal activists, and his credentials and independence are undisputed. However, a person can still only review what this are instructed to review. It is hard to be certain without seeing precise terms of reference, but it looks to me like this âreviewâ? has now just become a request for a âsecond opinionâ? on possibly just one question, when there are many that remain unanswered.
Surely this is just a quibble? There doesn’t seem to be any statutory provision for a “review” in the relevant Act. i.e., it doesn’t seem possible to change any decision of the DPP. So “second opinion” is probably the correct term. The only remedy (if one should be required) appears to be a dismissal of the DPP.
DIRECTOR OF PUBLIC PROSECUTIONS ACT 1984 (Qld).
The first coat of whitewash dried a little grey,a second coat will give the appearance of a good job.This type of painting has been going on for over two hundred years,it works!
Yeah, it’s the accompanying statements by the DPP that are a worry rather than the decision not to prosecute. I think Street will find the decision not to prosecute was reasonable – arguably the prospects of a properly instructed jury convicting were low.
Having the ‘review’ review only the most defensible part of the DPP’s behaviour – the decision itself – will be likely to give a result that gets the Government off the hook.
There is of course the possibility that the Coroner got it wrong and the DPP got it right.
Unlikely Rob – the key piece of evidence is the fact that S/Sgt Hurley told the same story three times, and then changed his story at the coroner’s inquest.
His original story was that he fell next to Mulrunji, not on top of him.
But when the medical evidence showed that Mulrunji could have got his evidence in only one of two ways – Hurley falling on him, or Hurley criminally assaulting him – Hurley changed his story to say that he fell.
My detailed reasoning can be found about half way down this comment on my blog, starting with the words
I suspect that dd is right.
SJ, the DPP has handed the file to the Attorney General, which I understand means that the Government can choose to proceed with an indictment. Can’t give you chapter and verse I am sorry, but I understand that proceedings are still possible.
The AG can always proceed to an indictment, but he indicated that he didn’t want to overrule the DPP and set a precedent. But one assumes that the logic is that now the review has been set up, if Street finds there is a case to answer, the AG will issue an indictment.
All a bit of a mess isn’t it?
While I’m pretty clear about the difference between coroners findings and what might be put into evidence in a criminal trial, as a casual observer I think a trial is what’s demanded in this case.
Put the evidence on the table and let a judge or jury decide.
The Qld DPP may well have rock-solid legal reasons for the decision not to prosecute, but to the average mug in the street like me it’s all a bit whiffy. And in PR terms it was completely mismanaged.
The bottomline is that the Qld DPP has compromised the office for reasons of public confidence.
If Street backs the DPP’s decision it will no doubt be for evidential legalisms (in view of the Coroner’s findings) that few will take to heart.
If Street recommends the matter go to trial, who can have confidence that the Office of the DPP (with the present incumbent) will mount a vigorous prosecution?
Any lawyers out there? What do you think?
It does seem that it’ll be problematic for Clare if Street recommends a prosecution.
What are Rob’s motives for questioning the competence of the Coroner, rather than the DPP?
I noticed a similar equally pitiful apologetic up and running at Ambit Gambit, and wonder at the mental exertions; the mental gymnastics, of people who so much want to deny what their own consciences and intelligence must inform them is actually true.
So much for Socrates’ contention that people find it easier do the right rather than wrong thing!
paul, on one of the earlier threads I linked to a long article in the Oz that claimed the Coroner had ignored or overlooked a lot of evidence that supported Hurley’s account. That may have been refuted somewhere but if it has I’ve not seen it.
You will have seen that Andrew himself in comments at his site is not being too categorical about “what happened”.
I note Noel Pearson’s article in The Australian today says “It is imperative that the review be empowered to look beyond the compromised police investigation and be capable of pursuing further investigation of evidence.”
I like the idea, but it doesn’t look at all like that is what’s happening.
It is worth noting that later in his article Pearson specifically mentions his view that plenty of good leadership exists on Palm Island, and even goes to the trouble of naming five people as “the tip of an iceberg” of leaders.
I looks like I am wrong about the nature of the review.
I received an email from Kirby Anderson, the Qld Attorney-General’s media adviser, in reply to one I sent.
Anderson’s email says a “spokesman” said:
Which indicates that it goes back to scratch, and could possibly come to a different decision.
(Normally I wouldn’t publish the contents of a private email, but this was clearly written for public release, and is not private information)
I have to disagree with the ‘everyone’s favourite wise uncle’ characterisation of Sir Laurence Street.
His comments 7.30 Report here on AWB are revealing of an arch conservative:
“SIR LAURENCE STREET, FORMER ROYAL COMMISSIONER” There is always a temptation when one is a royal commissioner to think, “Well, look, I’ll clean up all of this.” And one thing I’ll suggest to the Government. I’ll do this I’ll do that. I’m not going to be specific, but we all can recollect a royal commission that got way, way out beyond its original terms of reference, as the commissioner followed various rabbits down various burrows. That’s not what a royal commission is about. A royal commission is a specific – or a commission such as this in the federal arena – is a commission to inquire into a particular topic and report back to executive government.
MICHAEL BRISSENDEN: Sir Lawrence Street is one of Australia’s most respected legal minds and he’s no stranger to royal commissions himself.
SIR LAURENCE STREET: I don’t criticise politicians for one moment. I’ve done high-profile political inquiries myself. That’s the political arena is the political arena. The arena is the fourth estate in which you and your colleagues function, Mr Brissenden is another. But the judicial arena, or the judicial arena such as an inquiry such as this, although it’s not an adjudicative function, is something which is apart and has to be ruthlessly protected by the integrity of the commissioner to ensure that he or she doesn’t find themselves pushed out beyond what is the proper scope of their terms of reference.”
and a moment later in the same interveiw:
“MICHAEL BRISSENDEN: Veterans like Sir Laurence Street agree the position for Cole is difficult, but he simply has to play it straight.
SIR LAURENCE STREET: His duty is to carry out the inquiry as it is laid down in the terms of reference. He’s not the guardian of all aspects of public interest associated with this topic. He’s been given a specific task and his duty is to get on with that task and make his report. I may say a duty that he’s discharging with admiral balance and, as one would expect, integrity. He’s a judge of enormous stature, of shining integrity and he’s doing I think a very praiseworthy job in a difficult political climate.”
The full interveiw is here: Australian Broadcasting Corporation TV PROGRAM TRANSCRIPT LOCATION: http://www.abc.net.au/7.30/content/2006/s1604156.htm
Broadcast: 29/03/2006 Cole inquiry lacks powers: Opposition Reporter: Michael Brissenden
So in effect Street is slyly commenting that the famous Fitzgerald Royal Commission was going overboard (when my very sound information from within the staff back to the 1980s is they quit just when the ALP corrupt goose was about to be carved having done over the Nats corruption). I found this a DISGRACEFUL position. Utterly disgraceful.
Then to use that exemplar same interview to say Cole was doing a great and good job at the AWB inquiry for not demanding expanded terms of reference was again DISGRACEFUL.
Of course this is just my opinion about those two matters. But they also happen to be shared by a large number of other respectable people, say Kevin Rudd on the AWB TOR.
(We never did get a question on oath to either the then Defence Minister Hill who gets all the intelligence briefings, or to then Primary Industry minister and Nat leader John Anderson. How very convenient.)
No, I don’t respect Street for those blatherings. His position is indeed ‘disputed’. And more fool you for missing these huge concerns.
To leaven the critique: He may well do a fine conflict resolution process for Palm Island and Qld institutional stakeholders where all walk away as satisfied as they might be. I am willing to accept that much as an ex commercial litigator I can see that in him at this stage of his career.
But spare us the forelock tugging. It’s not a. probitive or b. healthy. In fact it’s grotesque hierarchical wank/back slapping. Am I being direct enough for you. We are talking lives, not comfort zones.
Sir Street, if you are so damn good, prove it. And nothing less will be acceptable and I don’t care how many grey hairs on your noggin or how many flunkies in your team.
I discuss this much closer in my blog entry under topic ‘indigenous’ at
http://sydneyalternativemedia.com/blog/index.blog?topic_id=1083770
Having read the complete acting coroners report on the death in custody of Mulrunji in police custody on Palm Island I was very surprised at the conclusions of the acting coroner. It was then no surprise that the DPP recommended that Sergeant Hurley had no case to answer.
The subsequent actions of the Government in appointing Sir Laurence Street to give a second opinion and then to act on this opinion was a knee jerk reaction to the screaming of certain members of our comunity.
I have asked for the full terms of reference of the Street enquiry and am awaiting the response from the Government. Without this it is difficult to make a decision on wthere the Street recommendation was influenced by the terms of reference.
This is a classic case of a breakdown in the separation of powers with the Government interfering in the justice process.
Surprised by the coroner’s findings you were? Are you a coroner/forensic pathologist/medically trained in any way? Upon what basis this surprise?