FEDERAL COURT OF AUSTRALIA

Wotton v State of Queensland (No 5) [2016] FCA 1457

File number:

QUD 535 of 2013

Judge:

MORTIMER J

Date of judgment:

5 December 2016

Catchwords:

HUMAN RIGHTS – discrimination – racial discrimination – direct discrimination s 9(1) of the Racial Discrimination Act 1975 (Cth) – police investigation of Aboriginal death in police custody – interactions between police officers and Aboriginal community following death – protests against police by some members of Aboriginal community – fires destroying police station and other public property – declaration of emergency situation under s 5 of the Public Safety Preservation Act 1986 (Qld) – entries and searches of homes by officers of Special Emergency Response Team – arrests of persons identified as suspects in relation to protests and fires rights to equality before the law and equal protection of the law – right to equal treatment before organs administering justice – right to access public services – right to enjoyment of property without unlawful interference – right not to be subjected to unlawful interference with privacy, family or home – right to liberty and security of person – right not to be subjected to inhuman or degrading treatment International Convention on the Elimination of All Forms of Racial DiscriminationInternational Covenant on Civil and Political Rights

PRACTICE AND PROCEDURE – representative proceeding – racial discrimination – group comprising Indigenous community on Palm Island – subgroup comprising persons affected by arrests, entries and searches by officers of Special Emergency Response Team

STATUTORY INTERPRETATION – relationship between Australian statutes and international instruments – relationship between Racial Discrimination Act 1975 (Cth) and International Convention on the Elimination of All Forms of Racial Discrimination – consequences for interpretation of Racial Discrimination Act 1975 (Cth) – materials that may inform interpretation

STATUTORY INTERPRETATION – word and phrases – “act involving a distinction, exclusion, restriction or preference based on race” – “involving” – “distinction” – “based on race”

DAMAGES orders under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) – appropriate basis for and quantum of damages for racial discrimination – whether aggravated damages available – whether exemplary damages available – whether appropriate to order an apology

Legislation:

Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)

Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO, 46PO(4), 46PO(4)(b), 46PO(4)(d)

Constitution, ss 109, 117

Coroners Act 2003 (Qld) ss 5(2), 7(3), 15(2), 27, 29

Criminal Code Act 1899 (Qld) Sch 1, ss 61(1), 61(2), 63, 63, 65, 66, 398, 419, 461, 469

Disaster Management Act 2003 (Qld) s 13

Evidence Act 1995 (Cth) ss 54, 140, 144(1)(b), 191

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 22, 23

Police Powers and Responsibilities Act 2000 (Qld) ss 19, 198, 376, 447A

Police Service Administration Act 1990 (Qld) ss 2.3, 4.8, 4.9, 7.4, 10.5(2)

Public Safety Preservation Act 1986 (Qld) ss 5, 6, 8, 13, 46

Public Sector Ethics Act 1994 (Qld) s 15

Racial Discrimination Act 1975 (Cth) ss 3(3), 8, 9, 9(1), 10, 18A

Charter of the United Nations, Art 1(3)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 1

European Convention on Human Rights, Arts 3, 8

International Convention on the Elimination of All Forms of Racial Discrimination, Arts 1(1), 1(4), 2, 5(a), 5(b), 5(f)

International Covenant on Civil and Political Rights, Arts 2, 7, 9, 17, 26

International Covenant on Economic, Social and Cultural Rights

Universal Declaration of Human Rights, Art 7

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Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251

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Font v Paspaley Pearls Pty Ltd [2002] FMCA 142

Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95

Forde v Skinner (1830) 4 Car & P 239; 172 ER 687

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Dates of hearing:

21, 22, 23, 24, 25, 28, 29 and 30 September 2015, 1 and 2 October 2015, 7, 8, 9, 10, 11, 14, 15, 16 and 17 March 2016, 10, 11 and 12 May 2016

Date of last submissions:

12 May 2016

Registry:

Queensland

Division:

General Division

National Practice Area

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

1806

Counsel for the Applicants:

Ms C Ronalds SC with Mr J Creamer and Ms S Pointing

Solicitor for the Applicants:

Levitt Robinson

Counsel for the Respondents:

Mr M Hinson QC with Mr S McLeod and Mr S Forrest

Solicitor for the Respondents:

Crown Law

Table of Corrections

21 December 2016

In paragraph 75, first sentence, “the conduct of the respondents” has been changed to “the conduct of QPS officers”.

21 December 2016

In paragraph 394, “has” has been changed to “have” in the first sentence and “it has” has been changed to “they have” in the second sentence.

21 December 2016

In paragraph 718, “three” has been changed to “there” in the second sentence and “DS Webber” has been changed to “DI Webber” in the fourth sentence.

21 December 2016

In paragraph 725, “respondents’ conduct” has been changed to “conduct of QPS officers”.

21 December 2016

In paragraph 738, “judgment” has been changed to “judgement”.

21 December 2016

In paragraph 739, “in” has been deleted after the words “critical to”.

21 December 2016

In paragraph 740, “has contributed” has been changed to “have contributed”.

21 December 2016

In paragraphs 1126 and 1358 and in the list of cases, the word “Commonwealth” has been deleted from the title of Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318.

21 December 2016

In paragraph 1468, “of” has been added to the phrase “members of the public”.

21 December 2016

In paragraph 1568, second sentence, “Caroll” has been changed to “Carroll”.

21 December 2016

In paragraph 1579, a typographical error has been corrected in “referring”.

21 December 2016

In paragraph 1613, no such proportion” has been changed to no such proposition.

21 December 2016

In paragraph 1734, a typographical error has been corrected in “Lockhart J”.

21 December 2016

In paragraph 1759, a typographical error has been corrected in Spigelman CJ.

21 December 2016

In paragraph 1768, “at first instance” has been deleted after “assault and battery claims”.

21 December 2016

In paragraph 1780, “Federal Circuit Court” has been changed to “Federal Magistrates Court”

18 January 2017

In paragraph 255, eighth paragraph of the quote, the letter “L” has been changed to “K”.

18 January 2017

In paragraph 274, seventeenth paragraph of the quote, “be” has been changed to “he”.

18 January 2017

In paragraph 344, penultimate sentence, “have” has been added before “wanted”.

18 January 2017

In paragraph 351, subparagraph (7), a typographical error has been corrected in “Berna”.

18 January 2017

In paragraph 359, last sentence before the quote, “impact” has been added before “munitions”.

18 January 2017

In paragraph 433, sixth sentence, “a” has been added before “stoic”.

18 January 2017

In paragraph 436, third paragraph of the quote, “10” has been deleted after “access”.

18 January 2017

In paragraph 441, penultimate sentence, “riots” has been changed to “strike”.

18 January 2017

In paragraph 461, last sentence, “the” has been added before “three”.

18 January 2017

In paragraph 760, first sentence of the quote, “anyway” has been changed to “away”.

18 January 2017

In paragraph 807, first sentence of the quote, “island” has been changed to “Island”.

18 January 2017

In paragraph 814, sixth sentence, “is” has been added between “exaggeration” and “in part”.

18 January 2017

In paragraph 861, last paragraph of the quote, the letter “L” has been changed to “K”.

18 January 2017

In paragraph 973, second sentence, “SS Leafe” has been changed to “Sergeant Leafe”.

18 January 2017

In paragraph 1000, penultimate paragraph of the quote, “5” has been deleted after “Aboriginality of”.

18 January 2017

In paragraph 1045, second sentence of the quote, a closing quotation mark has been added after “next one,”.

18 January 2017

In paragraph 1086, first sentence, “not” has been added before “employed”.

18 January 2017

In paragraph 1144, first sentence, “of” has been deleted before “the emergency”.

18 January 2017

In paragraph 1193, first sentence, “evening” has been changed to “morning”.

18 January 2017

In paragraph 1260, fourth sentence, “above” has been deleted after “As I have noted”.

18 January 2017

In paragraph 1346, second sentence, “attested” has been changed to “arrested”.

18 January 2017

In paragraph 1413, first sentence, “three” has been changed to “two”.

18 January 2017

In paragraph 1458, penultimate sentence, “of” has been deleted before “being shot”.

18 January 2017

In paragraph 1529, the text before the quote has been changed to correct a grammatical error.

18 January 2017

In paragraph 1660, last sentence of the quote, “In” has been changed to “in” and “Issues” has been changed to “issues”.

18 January 2017

In paragraph 1711, seventh sentence, “appellants” has been changed to “applicants”.

ORDERS

QUD 535 of 2013

BETWEEN:

LEX WOTTON

First Applicant

AGNES WOTTON

Second Applicant

CECILIA ANN WOTTON

Third Applicant

AND:

STATE OF QUEENSLAND

First Respondent

COMMISSIONER OF THE POLICE SERVICE

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

5 December 2016

THE COURT DECLARES THAT:

1.    In relation to the applicants and group members as defined in the further amended originating application filed 25 August 2015, Detective Inspector Warren Webber, Detective Senior Sergeant Raymond Joseph Kitching and Inspector Mark Williams committed unlawful discrimination, in contravention of section 9(1) of the Racial Discrimination Act 1975 (Cth), by failing to treat Senior Sergeant Christopher Hurley as a suspect in the death of Cameron Doomadgee and by allowing Senior Sergeant Hurley to continue to perform policing duties on Palm Island between 19 and 22 November 2004.

2.    In relation to the applicants and group members, between 19 and 22 November 2004, Detective Inspector Webber and Detective Senior Sergeant Kitching committed unlawful discrimination, in contravention of section 9(1) of the Racial Discrimination Act, in their treatment of Aboriginal witnesses interviewed, and in their treatment of information supplied by those witnesses, for the purposes of the investigation by the Queensland Police Service into the death of Cameron Doomadgee.

3.    In relation to the applicants and group members, between 19 and 22 November 2004, Detective Senior Sergeant Kitching committed unlawful discrimination, in contravention of section 9(1) of the Racial Discrimination Act, in submitting inaccurate information to the coroner, and in failing to supply relevant information to the coroner, for the purposes of the coronial investigation into the death of Cameron Doomadgee.

4.    In relation to the applicants and group members, the failure of any officer of the Queensland Police Service with appropriate command responsibilities, including Inspector Gregory Strohfeldt and Acting Assistant Commissioner Roy Wall, to suspend Senior Sergeant Hurley from active duty on Palm Island after the death of Cameron Doomadgee on 19 November 2004 constituted unlawful discrimination in contravention of section 9(1) of the Racial Discrimination Act.

5.    In relation to the applicants and group members, the failure of any officer of the Queensland Police Service with appropriate command responsibilities on Palm Island between 22 and 26 November 2004, including Inspector Brian Richardson and Senior Sergeant Roger Whyte, to communicate effectively with the Palm Island community and defuse tensions within that community relating to the death in custody of Cameroon Doomadgee, and the subsequent police investigation, constituted unlawful discrimination in contravention of section 9(1) of the Racial Discrimination Act.

6.    In relation to the applicants and group members, Detective Inspector Webber, in making at 1.45 pm on 26 November 2004 and continuing until 8.10 am on 28 November 2004 a declaration of an emergency situation under section 5 of the Public Safety Preservation Act 1986 (Qld) engaged in unlawful discrimination in contravention of section 9(1) of the Racial Discrimination Act.

7.    In using officers of the Special Emergency Response Team to carry out the arrest of the first applicant on 27 November 2004, officers of the Queensland Police Service with command responsibilities for the police operations on Palm Island at that time, including Detective Inspector Webber, Inspector Steven Underwood and Inspector Glenn Kachel, engaged in unlawful discrimination in contravention of section 9(1) of the Racial Discrimination Act.

8.    In using officers of the Special Emergency Response Team on 27 November 2004 to carry out the entry and search of the house of the first and third applicants, officers of the Queensland Police Service with command responsibilities for the police operations on Palm Island at that time, including Detective Inspector Webber, Inspector Underwood and Inspector Kachel, engaged in unlawful discrimination contrary to section 9(1) of the Racial Discrimination Act.

9.    In using officers of the Special Emergency Response Team on 27 November 2004 to carry out the entry and search of the house of the second applicant, officers of the Queensland Police Service with command responsibilities for the police operations on Palm Island at that time, including Detective Inspector Webber, Inspector Underwood and Inspector Kachel, engaged in unlawful discrimination contrary to section 9(1) of the Racial Discrimination Act.

10.    Pursuant to section 18A of the Racial Discrimination Act, the Racial Discrimination Act applies in relation to the first respondent as if the first respondent had engaged in the conduct of the officers of the Queensland Police Service referred to in paragraphs 1 to 9 above, and the first respondent is taken to have contravened section 9(1) of the Racial Discrimination Act in the manner there set out.

THE COURT ORDERS THAT:

1.    The first respondent pay to the first applicant damages in the total sum of $95,000.

2.    The first respondent pay to the second applicant damages in the sum of $10,000.

3.    The first respondent pay to the third applicant damages in the total sum of $115,000.

4.    Paragraphs 1 to 3 of these Orders are stayed pending the determination by the Court of the matters set out in paragraphs 1 to 4 and paragraph 6 of the Directions given by the Court on 5 December 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION AND SUMMARY

[1]

THE COMPLAINT TO THE COMMISSION, THIS PROCEEDING AND ITS HISTORY

[14]

PALM ISLAND

[23]

THE PARTIES’ COMPETING CONTENTIONS

[60]

The approach I have taken to the parties competing contentions, as expressed in final submissions

[61]

Two aspects of the legal contentions

[73]

Nature and scope of the legal duties of QPS officers

[74]

Parties’ arguments on s 9 of the RDA

[87]

The applicants’ s 9 contentions applied to the facts

[91]

Whether certain claims by the applicants are within their pleaded case

[95]

Proof

[110]

The role of SS Hurley and my findings about his conduct

[122]

Matters not contested

[125]

The second amended agreed statement of facts

[125]

Vicarious liability: s 18A of the RDA

[128]

The report of the Royal Commission into Aboriginal Deaths in Custody

[129]

SUMMARY OF STATE LEGISLATION, REGULATIONS, INSTRUMENTS, POLICIES AND PROCEDURES APPLICABLE TO THE QUEENSLAND POLICE SERVICE

[145]

The role of state legislation, instruments and policies in the applicants’ case

[145]

The Police Service Administration Act 1990 (Qld) (PSA Act)

[152]

The Operational Procedures Manual (OPM)

[153]

The QPS Code of Conduct

[183]

Emergency declaration powers

[185]

Law governing arrests

[194]

Relevant offence provisions

[195]

A DEATH IN CUSTODY

[212]

GENERAL NARRATIVE OF EVENTS AFTER MULRUNJI’S DEATH

[227]

Summary of officers involved in the events of 19 to 28 November 2004

[228]

Initial response to Mulrunji’s death by officers on the mainland

[238]

Arrival of investigating officers on Palm Island

[246]

Notification of next of kin

[253]

Interviews and re-enactments with witnesses

[254]

Police conduct in relation to the first autopsy

[280]

Police conduct and interactions with the Palm Island community between 22 and 25 November 2004

[293]

Events of Monday, 22 November 2004

[293]

Events of Tuesday, 23 November 2004

[303]

Events of Wednesday, 24 November 2004

[309]

Events of Thursday, 25 November 2004

[314]

The protests and fires on 26 November 2004

[318]

The emergency declaration and the arrival of police reinforcements, including SERT and PSRT

[328]

The arrests, searches and entries on 27 and 28 November 2004

[348]

Subsequent events, including court proceedings and inquiries

[363]

EVIDENCE ON CONTESTED ISSUES

[389]

Key participants in the events of November 2004 who were not called to give evidence

[389]

The documentary evidence

[397]

The witnesses called by the parties in this proceeding

[399]

The applicants’ witnesses

[406]

Tuesday, 22 September 2015

[406]

Ms Andrea Sailor

[406]

Mr Owen Marpoondin

[408]

Mr Albert Wotton

[410]

Ms Krysten Harvey

[412]

Wednesday, 23 September 2015

[414]

Mrs Agnes Wotton

[414]

Ms Schanara Bulsey

[416]

Mr William Neville Blackman (Mr Blackman Senior)

[418]

Ms Mersane Oui

[420]

Mr William Lloyd Blackman (Mr Blackman Junior)

[422]

Thursday, 24 September 2015

[424]

Mr John Clumpoint

[424]

Mr Chevez Morton

[426]

Ms Collette Wotton

[428]

Mr Zacchias Sam

[430]

Ms Cecilia Wotton

[432]

Monday, 28 September 2015

[434]

Mr Anthony Koch

[434]

Dr Rosalind Kidd

[441]

Ms Jacinta Barry

[448]

Tuesday, 29 September 2015

[450]

Emeritus Professor Jon Altman

[450]

Mr Lex Wotton

[453]

Wednesday, 30 September 2015

[459]

Dr Diana Eades

[459]

Mr Stephen Ralph

[461]

The respondents’ witnesses

[463]

Friday, 2 October 2015

[463]

Inspector David Dini

[463]

Monday, 7 March 2016

[466]

Dr Jill Reddan

[466]

Detective Inspector Warren Webber

[469]

Wednesday, 9 March 2016

[475]

Inspector Joe Kitching

[475]

Friday, 11 March 2016

[480]

Mr Gary Campbell

[480]

Monday, 14 March 2016

[484]

Inspector Donald McKay (SERT Operative 1)

[484]

Tuesday, 15 March 2016

[487]

Inspector Roger Whyte

[487]

Wednesday, 16 March 2016

[502]

Superintendent Rodney Kruger (SERT Operative 3)

[502]

Thursday, 17 March 2016

[506]

Sergeant Wade Folpp (SERT Operative 4)

[506]

THE RDA: RELEVANT LEGAL PRINCIPLES

[508]

SUMMARY OF THE HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS RELIED ON BY THE APPLICANTS FOR THE PURPOSES OF S 9

[563]

Article 5(a) of the ICERD: the right to equal treatment before tribunals and all other organs administering justice

[570]

Article 5(f) of the ICERD: the right to access public services

[582]

Article 26 of the ICCPR: equality before the law

[635]

The common law rights relied on by the applicants

[684]

The human rights and fundamental freedoms relied on by the applicants and the subgroup members

[691]

Article 17 of the ICCPR: the right not to be subjected to unlawful interference with privacy, family or home

[705]

RESOLUTION OF THE APPLICANTS’ CLAIMS

[717]

Structure of findings in this part and approach to the evidence

[717]

The applicants’ premise of unlawfulness and non-compliance

[725]

The contemporaneous video evidence

[740]

First category: the police conduct in the investigation of Mulrunji’s death

[816]

The purpose of the investigation

[819]

The duty of QPS officers to act impartially

[827]

Investigating officers and SS Hurley

[833]

The role of DS Robinson

[891]

“Failures in oversight” by senior officers

[901]

The treatment of PLO Bengaroo

[914]

The treatment of other Aboriginal witnesses

[927]

The way Mr Roy Bramwell was dealt with

[959]

Conduct surrounding the autopsy

[988]

Allegations of failures to consider cultural needs

[1008]

Delay in notification of the next of kin

[1019]

Conclusions on the investigation claims

[1028]

Second category: the police conduct during the ‘intervening week’ after Mulrunji’s death and prior to the protests and fires of 26 November 2004

[1034]

Failure to suspend SS Hurley

[1035]

Failures to communicate with the community and defuse tensions

[1052]

QPS handling of the autopsy report

[1094]

Conclusions on the intervening week claims

[1096]

Third category: the emergency declaration issued under the PSP Act

[1101]

The making of the emergency declaration by DI Webber

[1102]

The revocation of the emergency declaration

[1130]

Was the making and continuation of the emergency declaration an act involving a distinction, exclusion, restriction or preference based on race?

[1141]

The Court of Appeal decision in Poynter

[1190]

The delay in issuing the emergency declaration certificate

[1192]

Other aspects of the applicants’ contentions regarding the emergency declaration

[1194]

Conclusions on the emergency declaration claims

[1196]

Fourth category: the use of SERT

[1201]

How the SERT teams came to be deployed

[1211]

The two claims made on behalf of the applicants and all Palm Island group members

[1253]

The first three claims made on behalf of the applicants and the subgroub members

[1269]

An arbitrariness’ claim on behalf of the applicants and the subgroup members?

[1275]

Conclusions on the claims other than claims about the arrests, entries and searches by SERT

[1283]

The arrests, entries and searches by SERT: claims of unlawfulness and excessive use of force

[1284]

Was the arrest of Mr Wotton unlawful?

[1292]

Was excessive force used in the arrest of Mr Wotton?

[1339]

Subgroup members: lawfulness of the arrests

[1342]

Subgroup members: use of force in the arrests

[1347]

Were the entries and searches of the applicants’ houses unlawful?

[1350]

Were the arrests, entries and searches acts involving distinctions or restrictions based on race?

[1366]

Conclusions on the arrests, searches and entries

[1458]

The second limb of s 9(1): nullification or impairment of human rights or fundamental freedoms

[1463]

The conduct of QPS officers during the investigation and the intervening week

[1465]

The making and continuation of the emergency declaration

[1477]

The arrests, entries and searches

[1507]

Other rights

[1518]

Summary of conclusions

[1519]

Conclusions on the applicants’ claims of contraventions of s 9(1)

[1519]

Findings on common questions: group members

[1521]

Findings on common questions: subgroup members

[1529]

Potential further common questions

[1533]

RELIEF

[1540]

Conduct founding relief

[1540]

Declaratory relief

[1544]

Apology

[1550]

Compensation

[1598]

Conduct for which orders under s 46PO(4) are available

[1619]

The arrests, entries and searches: authorities concerning police conduct

[1630]

The extent of the causal connection between Mr Wotton’s arrest, his imprisonment and subsequent harm he suffered

[1655]

Mr Ralph’s report

[1659]

Mr Lex Wotton

[1663]

Mrs Agnes Wotton

[1686]

Ms Cecilia Wotton

[1696]

Compensation for property damage

[1726]

An argument not put

[1727]

Aggravated damages claim

[1728]

Exemplary damages claim

[1753]

CONCLUSION

[1804]

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1    Section 9(1) of the Racial Discrimination Act 1975 (Cth) (RDA) provides:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

2    This is a representative proceeding brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth) in which the applicants allege various contraventions of s 9(1) by reason of the conduct of members of the Queensland Police Service (QPS) on Palm Island, Queensland in November 2004. The applicants are Mr Lex Wotton, Mrs Agnes Wotton and Ms Cecilia Wotton. They have brought this proceeding on their own behalf and on behalf of Indigenous people who were ordinarily resident on Palm Island on 19 November 2004 and who remained ordinarily resident there until 25 March 2010. I will refer to the persons in this group as the group members. The three named applicants also represent a subgroup of the group members, constituted by those persons who were affected (in one or more of four ways set out at [4] of the applicants’ third further amended statement of claim) by entries and searches conducted by members of the QPS, including members of the Special Emergency Response Team (SERT), on 18 homes on Palm Island during the period 27 to 28 November 2004. Those entries and searches led to the arrests of 11 people, including two arrests made at a place called Wallaby Point on 29 November 2004. The respondents are the State of Queensland and the Commissioner of the QPS, who is sued as Commissioner and as representing the members of the QPS who engaged in the conduct impugned by the applicants.

3    For the reasons set out below, the applicants have established some but not all of the contraventions of s 9(1) of the RDA which they alleged. I set out a summary of my findings in favour of the applicants at [1540] below.

4    The events and conduct with which this proceeding is concerned begin with the death in police custody of a 36-year-old man now known as Mulrunji at approximately 11 am on 19 November 2004. Before he died, Mulrunji was known as Cameron Doomadgee and in some of the contemporaneous evidence he is called by that name. Unless the context otherwise requires, it is appropriate to use his traditional name, Mulrunji. On the morning of 19 November 2004, Mulrunji had been arrested and placed in custody in what was called the “watchhouse” by Senior Sergeant Christopher Hurley, the Officer in Charge of the Palm Island Police Station. Police Liaison Officer Lloyd Bengaroo, an Aboriginal man employed by the QPS, assisted with the arrest. However, it was SS Hurley who brought Mulrunji into the watchhouse and it was SS Hurley’s physical interactions with Mulrunji that would become the subject of scrutiny. The impugned events and conduct end approximately 11 days later when the large contingent of police officers who had come to the island over the course of that period returned to the mainland.

5    The applicants allege contraventions by the respondents of s 9(1) of the RDA in the investigation of Mulrunjis death and the conduct of policing operations on the island during this 11-day period. The respondents have accepted that all the allegations of conduct by individual officers of the QPS occurred in the course of the employment of those officers, alternatively in circumstances where those officers were acting as agents of the State of Queensland. Accordingly, vicarious liability under s 18A of the RDA was accepted if the applicants allegations were otherwise proven.

6    There have been a considerable number of proceedings and inquiries (including three coronial inquests) into the events with which this proceeding is concerned. Race, and the circumstances and treatment of Aboriginal people on Palm Island, may have featured in some of those previous proceedings and inquiries, but it was intermingled with many other matters. In this proceeding, the role of race in the events on Palm Island between 19 November 2004 and approximately 29 November 2004 is the central issue. At certain times during the course of the proceeding, it appeared the applicants concentrated on failures and shortcomings in police conduct in general (including the issue of its lawfulness), without a clear set of contentions regarding how that conduct contravened s 9(1) of the RDA. However, the Court’s jurisdiction arises because this is a claim under s 9(1) of the RDA and a focus on the issues raised by the terms of that provision must be steadily maintained.

7    The applicants’ claims may be divided broadly into three groups of issues. The first involves the manner in which the QPS conducted the investigation into Mulrunji’s death. The QPS officers with principal responsibility for the investigation were Detective Inspector Warren Webber and Detective Senior Sergeant Raymond Joseph (“Joe”) Kitching. Inspector Mark Williams was a member of the Ethical Standards Command of the QPS and also participated in the investigation. I use the term ‘investigation’ in a broad sense, because this aspect of the applicants’ claims really covers a number of events from very shortly after Mulrunji’s death on 19 November 2004 until just before the civil unrest that saw the burning down of the Police Station and other buildings on Palm Island on 26 November 2004. The applicants allege that, in a number of specific ways, the conduct of the investigation was substandard, inadequate and flawed, and that these failures, omissions and inadequacies occurred because QPS officers were dealing with the death of an Aboriginal man, in an Aboriginal community, and more particularly the Aboriginal community of Palm Island. In the third further amended statement of claim these allegations are made in Parts H and I, and cover the period 19 to 24 November 2004. Many of these allegations begin with a premise that police conduct was unlawful, although in my opinion that premise is not as central to a potential contravention of s 9 as the applicants’ approach suggested.

8    The second group of issues involves the lead-up to events that have sometimes been described as the “riots” that took place on Palm Island on 26 November 2004, as well as the police reaction to those events. On that day, the wider community on Palm Island was given some information about a preliminary autopsy report regarding the injuries that caused Mulrunji’s death. It was the provision of this information that triggered the events of 26 November 2004. The word “riot” is one I have decided to avoid, although on the evidence before me it was the description of choice used by the media at the time. The word “riot” also forms part of the criminal offences with which some Palm Islanders were charged. Some people were acquitted of those charges, some were convicted, and some had charges withdrawn. To use the word “riot” may indicate this Court has formed a view about those charges, which is not the case. It is the case that there were protests about Mulrunji’s death, the police investigation and perceived police inaction and bias, and those protests became violent at some points through activities such as rock-throwing and yelling abuse. There were also fires, which were deliberately lit and caused serious property damage, although no individual was convicted of arson. To use the word “riot” to describe these events would be to convey an impression that does not reflect my view of the evidence before me. I have used the composite phrase “protests and fires” in these reasons to describe what happened on 26 November 2004. In like manner, I describe the conduct of QPS officers on 27 to 29 November 2004 as “arrests, entries and searches” rather than as “raids”, which was a term used by the applicants and the media at the time.

9    In this second group of issues about the lead up to the protests and fires, the applicants allege a series of failures, inadequacies and omissions by the QPS, including:

(a)    the failure to suspend SS Hurley from duty pending the outcome of the investigation;

(b)    the making of an emergency declaration under s 5 of the Public Safety Preservation Act 1986 (Qld) (PSP Act);

(c)    the entries and searches of the homes of subgroup members; and

(d)    the arrests of subgroup members in relation to offences said to have been committed on 26 November 2004.

10    It is alleged, broadly, that the police would not have conducted themselves as they did (including by deploying SERT officers to effect the arrests and conduct the searches of the homes) if this were not an Aboriginal community. In the third further amended statement of claim, these allegations are made in Parts J, K and L and cover the period 22 November 2004 to 28 November 2004. Again, many of these allegations begin with the premise that police conduct was unlawful, and again in my opinion that premise is not as central to a potential contravention of s 9 as the applicants’ approach suggested.

11    In their pleadings the applicants raised a third issue, concerning what was described in Part L of the third further amended statement of claim as “systemic and institutional discrimination”. These allegations centred on the policies, orders and procedures issued or continued by the second respondent (the Commissioner) being, to borrow a phrase, not fit for the purpose of policing in an Aboriginal community, and specifically in the Aboriginal community of Palm Island. This aspect of the applicants’ case was, ultimately, not pressed at trial. On the last day of evidence, senior counsel for the applicants informed the Court that these allegations were not pressed, along with a series of factual allegations which she then identified. Accordingly, those matters are not the subject of any express findings in these reasons.

12    In final submissions, and with greater focus on s 9 of the RDA as I had requested, the applicants provided a short summary of their key contentions that somewhat reorganised the first and second groups of issues into four main categories of claims. I have adopted that structure in these reasons. The four categories of claims are:

(a)    the police conduct in the investigation of Mulrunji’s death;

(b)    the police conduct during the ‘intervening week’ after Mulrunji’s death and prior to the protests and fires of 26 November 2004;

(c)    the emergency declaration issued under the PSP Act;

(d)    the use of SERT in the arrests, entries and searches carried out between 27 and 28 November 2004.

13    The applicants seek declaratory relief, an apology, compensation, and aggravated and exemplary damages.

THE COMPLAINT TO THE COMMISSION, THIS PROCEEDING AND ITS HISTORY

14    Although this proceeding is brought as a representative proceeding pursuant to Pt IVA of the Federal Court Act, it comes to this Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) after termination of a complaint made to the Australian Human Rights Commission.

15    The applicants lodged a written complaint with the Commission on 25 March 2010 on behalf of themselves and the group members. In the complaint letter, the applicants alleged that the first respondent – the State of Queensland – contravened s 9 of the RDA through various acts and omissions after Mulrunjis death, and through the subsequent protests and fires and the police response to them. The applicants divided the police acts and omissions into four heads of discrimination. The matter did not resolve at the conciliation conference facilitated by the Commission on 16 February 2012 and a delegate of the President of the Commission issued a notice of termination under s 46PH of the AHRC Act on 13 June 2013.

16    The applicants filed their originating application on 9 August 2013. On 20 November 2014, Dowsett J fixed the matter for trial for four weeks, to take place in two tranches from 31 August 2015 to 11 September 2015 and from 21 September 2015 to 2 October 2015.

17    The matter was allocated to my docket in April 2015 and the parties appeared before me for a directions hearing on 28 April 2015. I made orders on this date varying the trial dates so that the trial would run from 7 September 2015 to 2 October 2015, to enable the trial to proceed in a single tranche, and requiring the respondents to discover certain documents by 5 May 2015.

18    It is agreed between the parties that both the group members and the subgroup members as so defined number more than seven people. It is also agreed that, at all relevant times, the applicants and group members as identified by the applicants were Aboriginal or Torres Strait Islander persons. When referring to the community on Palm Island, the parties used the descriptor “Aboriginal” in their pleadings and submissions. Accordingly, that is the term I have adopted in these reasons. I accept there may be Torres Strait Islanders on Palm Island, but there was no specific evidence adduced on that issue, nor did the applicants submit it was necessary specifically to refer to Torres Strait Islanders.

19    The applicants have made several changes to their pleadings throughout these proceedings. I summarised the changes made up until 21 August 2015 in Wotton v State of Queensland [2015] FCA 910 at [6]-[11], but will briefly repeat them here. The applicants filed the first version of their statement of claim on 22 October 2013. Throughout 2014, they filed three further iterations of the statement of claim: an amended statement of claim filed on 28 January 2014; a further amended statement of claim filed on 29 May 2014 (together with an amended originating application); and a second further amended statement of claim filed on 1 August 2014. The respondents filed a defence on 3 October 2014 and the applicants a reply on 24 October 2014.

20    On 11 August 2015, less than a month before the trial was scheduled to commence, the applicants filed an interlocutory application to make substantial amendments to their amended originating application and second further amended statement of claim. The application was heard on 19 August 2015 and, on 21 August 2015, I granted leave to the applicants to make some, but not all, of the amendments they had sought leave to make: see Wotton [2015] FCA 910. In order to provide the respondents with a proper opportunity to consider and respond to the amended pleadings, the hearing dates from 7 to 18 September 2015 were vacated. It was determined that the Court would sit on Palm Island on the week commencing 21 September 2015 and in Townsville in the week commencing 28 September 2015 and that a further tranche of trial would be scheduled at a later date as required. The applicants filed a further amended originating application and third further amended statement of claim on 25 August 2015.

21    Further interlocutory applications were made after the commencement of the trial. The respondents objected to the admission of expert reports of Dr Rosalind Kidd and Emeritus Professor Jon Altman on the basis of relevance. On 23 September 2015, I made orders that the reports be admitted and delivered brief reasons for my decision. On 28 September 2015, I refused an application by the applicants for closed court orders and suppression orders in respect of evidence concerning the psychological condition of the first and third applicants. On 28 September 2015, the applicants applied to adduce further oral expert evidence from sociolinguist Dr Diana Eades about specific parts of the evidence given by four Aboriginal witnesses in an attempt to explain what the applicants seemed to consider might otherwise be seen as credibility issues with their evidence. On 29 September 2015, I refused that application for reasons given orally at the time which need not be rehearsed here.

22    The first week of the trial was, as foreshadowed, conducted on Palm Island. The Court sat in the hall of the local school the same school that was used as the police command post from 26 November 2004. During that week, the Court conducted, with the agreement and cooperation of the parties, a view of places on Palm Island which would feature in the evidence. Those places included the mall area in which community meetings took place during the week of 22 November 2004; the police station, which was destroyed in the protests and fires but has since been rebuilt in the same location; the hospital; the houses of the applicants and of certain members of the subgroup; and other locations at which events occurred which are the subject of this proceeding. A note of the view, which includes photographs of the locations visited by the Court, is an exhibit in the proceeding. I have drawn certain inferences from the view, as s 54 of the Evidence Act 1995 (Cth) contemplates. Those inferences are set out at various places in these reasons. The view was material to many of the findings I have made. An understanding of the nature of Palm Island, and its community, is critical to the resolution of many contested issues in this proceeding. The view also informed my understanding of the contemporaneous evidence, including (but not limited to) the contemporaneous video evidence.

PALM ISLAND

23    The applicants’ claims in this proceeding cannot be understood without first appreciating the particular history of Palm Island and its community. The particular features of this community form part of the circumstances which existed on the island in November 2004. They are not mere matters of history, consigned to the past without relevance to the present as it was in November 2004. My findings in this section are drawn from the agreed facts; from the report of Dr Kidd, an expert called on behalf of the applicants, together with the annexed historical documents upon which her report was based; and from the report by Professor Altman, which was co-written with Dr Nicholas Biddle. Professor Altman was another expert called on behalf of the applicants. I discuss the evidence given by Dr Kidd and Professor Altman, and their qualifications, at [441] and [450] below. In that section I have made some findings about Dr Kidd which affect the weight I give to parts of her report. Given my reservations, I have relied more on the source material than on the commentary in Dr Kidd’s report. Where I have relied on Dr Kidd’s summaries, these were aspects of her report that were not challenged in cross-examination.

24    On the basis of the facts agreed between the parties, the population of Palm Island in 2006 was approximately 1,855 people, 93.5% of whom identified as Indigenous. The 2001 census recorded the population as being approximately 1,949 people, 90.8% of whom identified as Indigenous. I infer that in November 2004 the population, and the proportion of Indigenous people, was somewhere around or in between these two sets of figures. It was common ground between the parties that the overwhelming majority of non-Aboriginal people who lived on Palm Island were involved in providing goods or services to the Aboriginal community. It is also necessary to acknowledge, soberly, that the Palm Island community shares characteristics of disadvantage with other Aboriginal communities in Queensland and in other parts of Australia.

25    Gageler J provided a useful overview of the governance history of Palm Island in Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [255]:

Palm Island comprises a group of ten islands forming part of Queensland situated about 70 km north of Townsville. Palm Island was established as an Aboriginal reserve under Queensland legislation in 1914 and retained that or a similar status under subsequent Queensland legislation until 1986. Title to Palm Island was then granted in trust under the Land Act 1962 (Qld) to the Palm Island Aboriginal Council, an Aboriginal council under the Community Services (Aborigines) Act 1984 (Qld) (the Aboriginal Communities Act), and Palm Island became a “trust area” (subsequently redesignated a “community area”) within the jurisdiction of the Palm Island Aboriginal Council under the Aboriginal Communities Act. In 2004, by force of the Local Government (Community Government Areas) Act 2004 (Qld) (the Community Government Areas Act), as well as being continued as a community area within the meaning of the Aboriginal Communities Act as then amended, Palm Island was declared to be a “local government area” and by virtue of that also became a “community government area” to which provisions of the Local Government Act 1993 (Qld) thereafter applied and the Palm Island Aboriginal Council was continued in existence as the Palm Island Shire Council.

(Footnotes omitted.)

26    From 1897 until the early 1970s, the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) empowered the Queensland government to remove any Aboriginal person from rural and town areas and confine them to Aboriginal reserves. From approximately 1914, the government operated an Aboriginal reserve at what was known as Hull River on the northern coast of Queensland, now known as Mission Beach. This was the reserve to which Aboriginal people in northern Queensland were initially forcibly removed. Reasons included their unemployment and an assessment that they were in need of ‘protection’. Removals occurred in circumstances where the demands of expanding white occupation of land in Queensland rendered the occupation by Aboriginal people of their country incompatible or inconvenient for white settlers.

27    Soon after its establishment, the Hull River reserve experienced sufficient problems that the Queensland government began to look for alternative locations for the reserve. In 1916, the government attempted to clear Palm Island of its original Aboriginal inhabitants, being the traditional owners of the land and waters at Palm Island. When the Hull River settlement was destroyed by a cyclone in 1918, John Bleakley, the then ‘Chief Protector of Aboriginals’, ordered that the salvaged building materials and the inmates who had not died or escaped during and after the cyclone be relocated to Challenger Bay on Palm Island. While there was little evidence in this proceeding about the descendants of the original inhabitants of the island, it is apparent that some of the traditional owners retained their connections and still comprise part of the Palm Island community: see, eg, The Manbarra People and Great Barrier Reef Marine Park Authority [2004] AATA 268; 82 ALD 573 at [10].

28    Thus, Palm Island was occupied by Aboriginal people before it was identified as a place for forced confinement and punishment. Dr Kidd reports that European awareness of the original Palm Islanders dates from a sighting by Captain James Cook in June 1770. She gives the following summary of what historical records say about these people, and how they came to be tricked into leaving the island (although a few of the original male inhabitants were transported back to assist in building the settlement for other Aboriginal people who were to be forcibly removed there):

Reports survive of periodic attacks by Palm Islanders on traders in bêche-de-mer, trochus shell and sandalwood who visited Challenger Bay to recruit or kidnap men and women. In 1877 it was suggested that Great Palm Island be declared an Aboriginal reserve to prevent European incursions and protect Islanders from exploitation.

Around the turn of last century there were around 50 men, women and children living on Palm Island although others were said to be working on bêche-de-mer and fishing boats. Reports of the Northern Protector and Chief Protector of Aboriginals record similar populations in the years to 1914. Families on the island reportedly lived well having their own cutter and two dinghies, well built gunyahs of thatched grass, hunting dogs to catch wild pig, and ample supply of bush foods and fresh water.

In 1913 the Townsville protector described Great Palm Island as a ‘regular native camp and hunting ground’[.] On his suggestion most of the area was gazetted an Aboriginal reserve in June 1914.

In 1916 superintendent John Kenny, from the Hull River settlement reported that Challenger Bay would be a good site for a new settlement.

The families on Palm Island were enticed to visit the Hull River settlement in 1916 with promises that they could return if they did not like it. Twenty-two men, women and children were removed, but refused permission to return.

(Footnotes omitted.)

29    Palm Island’s remote geographical location made it a convenient place for the government to send people considered problematic, including those who had completed jail sentences or deserted compulsory labour contracts. The island was described as a “punishment island”, but it was used for other social and governmental purposes as well. This extract from Joanne Watson, Becoming Bwgcolman: Exile and Survival on Palm Island Reserve, 1918 to the Present (PhD thesis, The University of Queensland, 1994) at 72, which Dr Kidd provided with her report, captures the thinking at the time:

From 1897 the development of a punitive reserve on Badjala land at Fraser Island would serve as a prototype to the later institution on Palm. Murri ex-prisoners were sent to Fraser Island from Brisbane, Rockhampton, Roma, Townsville and Cardwell. By 1899 Roth, as Northern Protector, perceived Fraser Island as a place suited for the isolation of ‘troublesome’ or ‘dangerous characters’. The island was under the surveillance of the armed physical presence of the Mestons and a lock-up and police force soon established there. Those who were removed from their homelands developed an earth-eating disease. Before its closure in 1905 the reserve had become ‘a vast burial ground’ where those who fell ill believed they were ‘doomed to die’.

It was in the context of this historical background, combined with increasing numbers of removal orders, that Palm Island was gazetted for reserve purposes. By 1916 Bleakley as Chief Protector complained to the Under Secretary that neither Hull, Taroom nor Barambah could cope with the growing numbers of Murris under the Act, and that a reserve was needed ‘suitable for use as a penitentiary’, to confine ‘the individuals we desire to punish’. Bleakley decided to take advantage of Kenny’s removal of Wulgurugaba people to Hull River, to carry out an inspection of the island, and the following year he reported that in ‘Being an island’ Palm ‘also provided the security from escape required with such characters’.

(Footnotes omitted.)

30    Dr Kidd also included an extract from Bill Rosser, Dreamtime Nightmares (1985) at 144-45. In this extract, Fred Clay, who lived on Palm Island in the 1970s and was head of the island’s Aboriginal Council, describes what happened when as a fifteen-year-old boy he tried to get off Palm Island to work in Cairns, and then to make his way elsewhere, but was recaptured. I refer to this extract because it is also a good example of the long and fraught relationship between Palm Island people and the Queensland Police Service:

‘When they first opened the settlement over there, they didn’t have jails but, by gee, they used to handcuff them to a tree, you know. They used to have them in a chain-gang. In the early days,’ [Fred] explained, ‘they used to do all the clearing of the scrub by hand. There were no machines in those days’. He gave a short laugh. ‘Only a pick and shovel and the axe, grubbing trees out. They cleared all the settlement there’. He was silent again, probably thinking of the harsh conditions which he and his mates suffered in those far-off days. He stirred and said, ‘I wasn’t conscious of the Act until I left school. I was old enough to go to jail. That’s when I realised that we had no hope on the island. It was then that I realised the superintendent’s powers.’

‘And you rebelled against it, even at that age?’

‘Yes, I did. Yes. I took off from Palm when I was fifteen. I went to work in Cairns under an agreement. I had my money sent to Palm. We didn’t see the amount, they just filled it in – the Superintendent. We signed it. Each week I worked in Cairns, I got twenty-five shillings [$2.50] pocket money. So, I worked there for a year, then I jumped a train down to Ingham. I got in with a contractor, cutting cordwood for a sugar mill there. I was going bloody good, too, for about two months. Then, one dinner hour, a bloody big cop turned up.’ Fred winced at the memory, shrugged his shoulders and then continued with his story.

The cop was looking for a Fred Clay. I said, “I’m Fred Clay. He said, “Ah, I’ve got a warrant for your arrest and an order from the Department of Native Affairs to escort you back to Palm Island”. This is when I was fifteen! I was going to go “bush”, but I saw this bloody big pistol handle sticking out of his pocket and I wasn’t going to give the bastard a chance to shoot me. No way! He would have, I think. So, he took me to Ingham and put in the jail there, to wait for an escort to take me to Palm Island.’

They put you in jail – at fifteen?’

Yes. On the third day, this tracker turned up from Palm Island – my escort. He took me down to the railway station and handcuffed me to the seat. They didn’t give him a key for the handcuffs. The police in Townsville had it. They were waiting for us.’

Fred interrupted his story to look for a cigarette and was still wandering around when he resumed speaking. ‘When we got to Townsville a big cop came and released me from the seat and led me by the handcuffs. I stayed back in the watchhouse for three or four days before I was taken back to the island. There, I went to jail first for fourteen days, for absconding from the job in Cairns where I was under agreement with the Department of Native Affairs. After the fourteen days, I was given another six months punishment in the timber camp; that’s around the back of the island. I wasn’t allowed to come into the settlement for six months.’

‘That was a bit rugged’, I remarked.

‘Yes, it was rugged all right,’ Fred agreed. ‘When I came back to the settlement, I was put to work on the wood camp, cutting wood for the white people on the island.’

‘What pay did you get for that?’ I asked.

Heck! I wasn’t on pay.’

‘No pay. Only rations?’

‘Yes, only rations. I didn’t go on wages for about three years, I think, when I was eighteen.

31    In 1919, a magistrate from Ingham was called to Palm Island following an assault by the Superintendent of the island, Robert Curry, on a German storeman.

32    The magistrate reported on the terrible conditions he observed on the island and made a number of recommendations. Reference to one of them suffices to indicate the extremity of the living conditions, and attitudes, on the island at that time:

That provision be made for such free issue that will allow unfinancial natives a change of clothing. As it is the gins at least some of them and some of the children have only what they stand up in and often after remaining unadorned while the said garment is being washed they put it on before it is properly dry thus leading to colds, pneumonia and other chest complaints.

33    Dr Kidd provides an overview of the layout of the settlement in the 1920s, including the poor living conditions:

By 1923, after five years’ development, the Palm Island population was around 730, including 200 children. Over half the children were kept in ‘dormitories’ comprising two tin sheds; there was neither school nor school teacher. Nor was there a qualified medical practitioner, and even the monthly visits by the Ingham doctor had ceased. When the Queenslands Governor Thatcher visited Palm that year, inmates protested their entrapment on poor rations comprising flour, occasional sweet potato, and 450 grams of meat weekly. Governor Thatcher criticised the policy of sending 100 able-bodied men to external employment to bring in revenue instead of using them for building and farming. He supported their complaints in a letter to the minister, but nothing changed.

By 1929, despite continuing substandard conditions and chronic illnesses on the Island, the governments aggressive removal policy had increased the population to almost 1000 people.

(Footnotes omitted).

34    The conditions on the island were deplorable and substandard in many areas of life over several decades. Dr Kidd’s report identifies, for example, a critical shortage of food and resulting malnutrition, which was particularly dire during the second world war; limited education and other opportunities for youth; widespread lethal diseases; very high infant mortality rates; chronic overcrowding in houses and dormitories; unsafe water and defective sanitation; poor and oppressive management and policing by authorities on the island; and very poor quality medical facilities.

35    Although an education system was eventually established on the island, and children received schooling until the age of 14 years, their life and employment prospects remained extremely limited after they finished their schooling. Teenage boys were sent back into the community without trades or other practical skills and teenage girls were either contracted to work on remote properties or, if unmarried, confined in dormitories for decades. Mrs Agnes Wotton’s own history, as recounted in her evidence, is an example.

36    In the 1920s, Robert Curry, an ex-serviceman, was in charge of the Palm Island settlement as Superintendent. Curry imposed and enforced strict curfews for the community and, armed with a revolver, patrolled the island with native police who were authorised to dispense punishments and break up meetings. Curry worked groups of “troublemakers” in chain gangs clearing scrubs and trees. There were allegations that he interfered with Aboriginal girls and he was officially reprimanded for severely flogging an Aboriginal girl. In 1930, a few months after his wife died in childbirth, Curry killed his son and stepdaughter, shot the local doctor and his wife, set fire to several staff homes, and blew up administrative buildings. An Aboriginal man named Peter Prior shot Curry and fatally wounded him during this rampage, acting under the instructions of state police. Incredibly, Prior was later arrested for murder and jailed in Townsville for several months before the charges against him were dropped.

37    In the 1940s, regulations were introduced to legitimise intensive control of Aboriginal people. Dr Kidd reports that:

Inmates could be ordered to any section of a reserve or to another settlement, they had to obey all orders, cease dancing or card playing if commanded, surrender to the superintendent any property which might ‘disturb the harmony, good order or discipline of the reserve’. It was an offence ‘to commit a nuisance’, to act ‘in a manner subversive to the good order’ of the reserve, to be on a reserve or leave a reserve without permission, to refuse to work 32 hours per week. Superintendents could censor mail and demand any correspondence be given to him. Superintendents appointed, dismissed, and made the rules for, community police who had powers to arrest and imprison those who breached the regulations. Superintendents could pass sentence, and dictate behaviour and work of gaol inmates.

38    There were significant interferences with residents’ personal autonomy and freedom of movement. In her report, Dr Kidd discusses a 1948 petition from a Palm Island woman which highlights the plight of the girls and women kept in dormitories:

[The petition] implored the government to save her from her imprisoned existence where girls and women were locked up from 5 pm until 6 am, their only freedom a small patch of fenced grass. They could not shop or go to the weekly film show unless under police escort. For this ‘free’ show two shillings was deducted from the ten shillings ($18.30) earned by the few dormitory monitors. While single girls were allowed 45 minutes once a week to speak to boyfriends under police supervision, this small privilege was denied the writer, a widow. She blamed the suffocating confinement for girls becoming ‘unbalanced’ and running away after which, she said, ‘the rope is tightened all the more’ for those who remained trapped for life. (She didn’t raise this with the visiting justice, declared the deputy director of Native Affairs, therefore ‘she has no grounds for complaint’.) Nothing changed.

(Footnotes omitted).

39    Dr Kidd’s summary of this source document is slightly inaccurate in parts. For example, the petition itself, poignantly written by one of the women living in the dormitory in 1948, states that the author was “a divorced woman” rather than a widow.

40    Nonetheless, the 1948 petition, the role of Robert Curry and other “Superintendents” on the island, and the role of the “native police” give a flavour of the overwhelming, controlling and at times abusive role of the police in the lives of Palm Islanders: in this case, they were operating as guards to the young women.

41    After noting in detail the appalling restrictions imposed on the women, and the quarantining and expropriation of the paltry sums they earned for working, the author of the petition notes that any transgressions (such as stepping past lines intended to impose constraints on where the girls could move outside the dormitory buildings) would result in jail. She then states:

Sir, being Minister for Health and Home Affairs, do you consider these rules all above board, or do you think them a little inhuman, which is my point of view. We look to the white officials for advice, help and protection. When we are in trouble we go to our Superintendent and he does try to right our wrong, yet I blame these rules over us girls which make some of them unbalanced and which cause them to break out of the Dormitory and run away.

When one girl runs away the rope is tightened all the more. It is the ones that do try to live by the rules and help the staff on this Island who suffer most. I myself have done my best, but as these rules stand I’m afraid I will break them by running away too.

One girl at this moment has been gone now for a fortnight. When they get her she will get 6 weeks jail or maybe more, on bread and water, but the girl is not at all to blame. Should we get a little more freedom without having the police over us all the time I’m sure the girls will be more contented. This is all I am going to say. I hope you will do something for us. Thanking you.

42    The poor medical facilities on Palm Island were documented in 1944 when, given the infant mortality rate on the island was 15 times the infant mortality rate for Queensland generally at that time, a senior Health Department officer was sent to investigate the facilities and conditions on the island. Dr Kidd summarises the officer’s findings, as well as the findings of other Department staff who visited the island around this time in the following terms:

He reported hospital practices were so defective that several child patients developed septic sores; the diet was grossly deficient in milk, vegetables, and fruit. He said the resident doctors belligerent treatment of Aboriginal mothers was a major factor in the non-reporting of illness. (A visiting magistrate confirmed the doctor had struck a female patient but said action against him would not succeed.) Perhaps seeking an acceptable internal assessment, the department sent the matron from its Cherbourg settlement. She reported the hospital was in a filthy and neglected condition with many patients sleeping on old and soiled mattresses. Childrens cots and mattresses were filthy and crawling with cockroaches, the food store rooms were unventilated and full of flies and uncovered slops, and the labor ward was cramped and unhygienic.

(Footnotes omitted).

43    Once again, this summary embellishes somewhat upon the source document. In it, the officer does not state that the diet on the island was “grossly deficient in milk, vegetables, and fruit”, although he does recommend that the matron should exercise vigilance to make sure each patient receives an adequate diet. Nevertheless, the document clearly shows the deficiencies in health care and practice that existed on the island.

44    The chief state health officer, Dr Abraham Fryberg, visited the island in July 1945 and gave the following summary of living conditions, which starkly illustrates how Aboriginal people were forced to live. I leave the language in its original form.

DEPARTMENT OF PUBLIC HEALTH, QUEENSLAND

BRISBANE

13th July, 1945.

The Deputy Director-General.

Re Palm Island

As directed I visited Palm Island arriving there on June 15th and leaving Fantome Island on June 19th.

Palm Island was built as the result of a cyclone demolishing the settlement – at the mouth of the Hull River. 150 natives were transferred there and this number has grown to approximately 1200 by

1.    natural increase

2.    transfer of natives of New Guinea

3.    transfer of incorrigibles from all over Queensland

Accommodation

Varies from the type made from pandanus leaves to up to date cottages. The poorest type of hut is occupied by the poorest type of native. As many as five people live in a room 10 x 12 ft. There is no space for furniture nor is there a kitchen in the poorer type.

Every encouragement should be given to the inhabitants to improve their positions; many of the natives do make something out of their poor cottages. In such cases the authorities should assist them to get a better house. This would give the natives something to strive for and would improve the general morale on the Island.

Kitchens

Only provided in the better type of cottage. Cooking is carried out in the open. Cooking utensils are not provided. Equipment such as stores and pans are bought by natives who are earning money. No provision of safes to keep food.

Latrines.

Daily pan service. Practically no latrines are fly-proof. The burial ground is situated at the waterfront a short distance from the jetty. There is a native sanitary squad under the command of a native overseer. At the time of inspection the work for the day had been completed but faeces in big trenches had not been covered. A new burial ground has been selected and will be put into use when a road has been made.

Ablutions.

The sea. No bath houses as water supply is inadequate.

Laundry facilities. Nil

Water supply

From shallow wells. No treatment. Hospital has tanks which will not hold water. Iron tanks holding 4470 gallons which originally cost £220 are available for £75. in Townsville from the Army Disposals Board. The Director of Native Affairs will inspect these tanks when he goes North on his next visit. In the dry season fresh water is in short supply.

Hospital

Consists of a male, female and maternity ward and operating theatre which is only used in extreme urgency. It is an old building and is far too small. It is suggested a new hospital might be erected from the Fantome Island buildings. In fairness to the staff I must report the building was clean. I did not see sufficient of the staff to comment on their efficiency.

Dairy.

The dairy is a worthy institution but the hygiene is of a low standard, even though the utensils are clean. The utensils are stored in the open; the brass strainers are worn out and I was advised brass gauze could not be procured.

A building is required to house the utensils.

The resting yard and bales have an earth floor and in the wet weather become a quagmire. No drains are provided. The floor of the bales and part of the resting yard should be concreted.

Farm.

There is a super-abundance of vegetables at this time of the year but in the summer they will not grow on account of the heat.

A few acres of land grown tomatoes, sweet potatoes and other vegetables are now under cultivation.

The farm, which is under the supervision of Mr. Sturgess, who is doing an excellent job, is irrigated.

Unfortunately Mr. Sturgess can only give a limited amount of time to it as he has too many other duties.

Medical

A matter of concern on the medical side is the infantile mortality rate, as is seen by the following figures.

The deaths include 12 from prematurity, excluding still births.

Total Deaths – 78.

Regular ante-natal treatment is not carried out. Facilities for child welfare are not provided as a regular thing.

45    Poor health issues continued. In 1973, there was a severe outbreak of gastroenteritis amongst the children on Palm Island, leading to about 40 children being affected and many being hospitalised in Townsville. Doctors treating the children likened them to Biafran children in Africa.

46    State police were permanently stationed on Palm Island from 1968, with one sergeant and one constable. In a 1980 report, Patrick Killoran, the director of the Department of Aboriginal and Islander Advancement, stated that it was “common gossip at Palm Island that the Police Station was totally ineffective”, with the station being shut on weekends and police officers taking extended weekends for fishing trips and spending long hours playing chess in public view while on duty. Killoran also commented that problems were caused by quick promotions within the police force, which resulted in reasonably junior officers being promoted to sergeant positions when posted to Palm Island, quite often leading to personality clashes, culture shock, and other forms of discord between the inexperienced officers and the community.

47    Dr Kidd reports that from the early years of the Palm Island settlement, an Aboriginal community police force played a central role in policing the island. They assisted in controlling public disorder and drunken violence and in identifying and locating people the state police were looking for in relation to various civil matters. The existence of such a “native” force is apparent from the source documents to which I have already referred. However, Dr Kidd notes that Aboriginal police officers often had difficult relationships with their own communities, and this was reflected in a 1981 report titled ‘The Position of Aboriginal Police on Queensland Reserves’. That report also found that the state and Aboriginal police did not operate as a cohesive unit and that Aboriginal police officers were regarded as a separate and inferior agency. Dr Kidd states that:

Aboriginal police received no training, and were limited by poor literacy. Unlike state police who were supplied with a private home, and all of the police benefits, allowances, overtime etc, the native police were on call nights, weekends and public holidays on minimum wages while denied penalty rates, and were housed on Palm Island in a small poorly furnished room behind the cells. These detrimental conditions underlay the lack of job experience expressed in a turnover of 62 workers for the nine positions. Native policing was fraught with danger and their positions often untenable given problems of inter-family relationships and long-standing friendships from childhood. These conflicts would not be faced by a state police officer, who would not normally be assigned to serve in the country town of his birth and upbringing.

(Footnotes omitted.)

48    Dr Kidd reports that a 1991 review of the Community Services (Aborigines) Act 1984 (Qld) revealed that community complaints about the behaviour of state police were extensive and longstanding at that time. The community was frustrated that police were not accountable to them and that there was no way they could effect changes to inappropriate police behaviours.

49    There has also been a long history of interference with workers’ rights on Palm Island, including rights to equal pay. Dr Kidd’s report describes how, pursuant to regulations in 1919, every able-bodied person on Palm Island was required to work. However, no wage was set for government workers. Aboriginal workers usually worked long hours with poor conditions for no or very little pay. The poor working conditions and unequal pay for Aboriginal workers on Palm Island resulted in a strike in 1957, where all workers (except those providing essential services) ceased work for approximately five days. Some witnesses in this proceeding gave evidence about their parents having been involved in the strike.

50    While new regulations were introduced in 1972 which declared that all Aboriginal workers must be paid an award wage, these regulations did not apply to workers on government reserves such as Palm Island, where payment was labelled a training allowance, despite many employees having worked for decades. Other legal reforms in the 1970s did not improve conditions for Aboriginal workers. Dr Kidd reports that:

After the 1975 federal Racial Discrimination Act made it illegal to underpay workers on the basis of race, the Queensland government continued its policy. Correspondence in mid-1978 put the state’s profit at the expense of community workers at $3.6 million ($11 million) compared to the state mandatory minimum wage and $6.85 ($21 million) if award wages were paid where due.

51    Finally, in 1986, facing numerous union-funded wage challenges, the Queensland government agreed that award rates would be paid within existing budget levels. Further constructive changes occurred on Palm Island in the 1980s. After the Community Services (Aborigines) Act signalled the transfer of local government functions to community councils after a three-year training period, the Palm Island community Council assumed local government functions in 1986. The local Council gained title to Palm Island under a Deed of Grant in Trust, but at the same time the community lost the benefit of government infrastructure such as shops, a timber mill and farming equipment.

52    Palm Island’s history also manifested itself in continuing socioeconomic disadvantage. Professor Altman and Dr Biddle’s report provides some information about the socio-economic circumstances of Palm Islanders at times close to November 2004. Professor Altman and Dr Biddle used ABS census data from 2006 as the basis of their analysis the 2006 national census being the census closest to 2004. Professor Altman explained this use in his evidence:

The way that the census data is presented in community profiles is a summation of information for all the individuals on that community that have been counted during the census collection day or period. It depends on which methodology is used, and so what I’ve, in fact, referred to quite correctly is a – some summary statistics about that community which – which constitutes a summation, and then median information on – on Indigenous and non-Indigenous members of that community.

Yes. The report uses data obtained from the 2006 census. Is that correct?---Yes. I chose to use the 2006 census because I thought this was an appropriate census to use, given that the issues that were under discussion occurred in 2004. I could have used the 2001 census, or the 2006 census, or the 2011 census, but the 2006 census appeared the most proximate.

All right. And do I take from that you considered using the 2001 census, but you thought that was perhaps a little too early in time for 2004; 2006 was closer in time. Is that the thinking?---Yes, it was a lot closer. Yes.

Yes. All right. And did you, in fact, look at the - - -?---Would it – I would add one other thing.

Sure?---Is that experience tells us that census collection is – is continually improving, and so in some ways the later the census one uses, the better, although if I had used 2011 I think that would have been too far away from 2004.

53    In an analysis of the geographic distribution of socioeconomic outcomes for the Indigenous population Australia-wide, Palm Island was ranked 475th out of 531 areas. With 1 being the most advantaged area and 531 the most disadvantaged, this put Palm Island in the 89th percentile, and therefore one of the most disadvantaged Indigenous communities in Australia in 2006. Professor Altman and Dr Biddle commented on the “marked disparity” in 2006 between median individual cash income for Indigenous people aged over 15 years on Palm Island ($216 per week) compared to $911 per week for non-Indigenous Palm Island residents, who were mostly professionals, teachers, police, and health services providers.

54    Professor Altman and Dr Biddle report that the unemployment rate in 2006 for Indigenous people on Palm Island was 17%, compared with 0% for non-Indigenous Palm Island residents, 13.1% for Queensland Indigenous people generally, and 4.7% for Queenslanders generally. The employment/population aged over 15 years ratio (35.7%) and the labour force participation rate (43.1%) for Indigenous people on Palm Island were also low compared to 83.3% and 83.3% respectively for non-Indigenous Palm Island residents, 48.9% and 56.2% respectively for Queensland Indigenous people generally, and 58.9% and 61.8% respectively for Queenslanders generally.

55    Professor Altman and Dr Biddle concluded that:

These statistics despite arguments that they inevitably highlight Indigenous deficits because they reflect western norms reflected in social indicators, nevertheless indicate that Indigenous residents of Palm Island are as a group among the most socioeconomically disadvantaged in Australia. Disparities are most clearly evident in a comparison between Indigenous and non-Indigenous residents of Palm Island which can be an acute source of community tension.

But equally compared to Indigenous people elsewhere in Australia, Palm Islanders appear to be relatively badly off (ranking 475 out of 531 regions in 2006) an outcome that cannot just be explained by isolation and locational disadvantage given Palm Islands relative proximity to the city of Townsville.

(Footnotes omitted).

56    In November 2004, the matters which I have described were in the living memory of many residents of Palm Island. In the contemporaneous video evidence adduced in this proceeding, the number of elderly people in the Palm Island community is easily visible. In 2004, people such as Agnes Wotton had personal, lived experience of some of the events, living conditions, and police behavior that is the history of Palm Island. Those people knew, through their parents and grandparents, of the earlier abuses and deprivations inflicted on Aboriginal people on Palm Island, to which I have referred. In November 2004, the children and grandchildren of people such as Agnes Wotton were the young people one sees in the contemporaneous video evidence. The history of the Palm Island community was a living history. Places around the island still went by names which resonated with that history – many witnesses called the area in which the mall, police station, Council building and store were located “the Mission”, because that is where the dormitories were located. The area where Mr Wotton and his family lived is called “The Farm”, because that is where, in the early days of forced settlement on Palm Island, a dairy farm was established. The historical experiences of families on the island with the police is informed by the kinds of matters to which I have referred. Police were the ones who acted as guards, who placed locals in jail for minor infringements of rules applying only to Aboriginal people, who sought out those who fled the island and brought them back to be placed in jail. Control and subordination on a racial basis was central to the way this community had always been compelled to function. These matters were part of their lives, not simply entries in the history books and archives.

57    The pattern of arrests for minor infringements was, on the evidence, still occurring in 2004.

58    My overwhelming impression of the (current or former) QPS members who gave evidence in this proceeding was that they knew little or nothing about the history of Palm Island. Most freely admitted this. They also paid no real attention to the particular history and characteristics of Palm Island and its people in the approach they took to the investigation of Mulrunji’s death and their subsequent interactions with local people, with elders and with the Council. Yet it is clear in the contemporaneous video evidence that the palpable sense of powerlessness and injustice felt by people attending the community meetings is connected with the history of Palm Island, and the histories of their own families.

59    If content is to be given to the obligation, contained in sections of the QPS Operational Procedures Manual (OPM) as it applied in November 2004, to consider “cultural needs”, then in the case of Palm Island those cultural needs could not possibly be understood or met in any genuine way without a good working appreciation of the racism and oppression that characterised the island’s history.

THE PARTIES’ COMPETING CONTENTIONS

60    Before descending into the resolution of the significant number of factual and legal issues in this proceeding, it is necessary to make some preliminary comments on the parties’ competing contentions on both facts and law, as they were developed in final submissions. It is also convenient to address a number of connected issues, including the scope of the applicants’ case on the pleadings, the standard of proof to be applied in assessing the evidence, the nature of the findings I make regarding the conduct of SS Hurley, and the matters that are not in contest between the parties.

The approach I have taken to the parties competing contentions, as expressed in final submissions

61    It is easy to get lost in the detail of a proceeding such as this, and to pay insufficient attention to the real controversy between the parties. In the present case, and almost despite the detail, the real controversy between the parties, while acute, is not difficult to summarise: see [7]-[12] above.

62    At this point, the approach taken by Allsop J in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 should be recalled. Dealing with issues of ambiguity and lack of clarity in the pleadings in that case, his Honour said at [17]:

The pleading is to be understood in its context. It is not to be read divorced from counsel’s opening and how the case was otherwise litigated. This is not to say that the pleadings are other than central to understanding what was fought below and thus what can be raised on appeal. But to the extent that context may cure or ameliorate ambiguity or lack of clarity, it is not to be ignored.

63    When his Honour then came to identify the allegations made in relation to s 9 of the RDA in that case, he took the following approach (at [25]-[29]):

A number of matters appear to flow from, and can be said in consequence of, the above outline of the presentation of the case. First, read in their context, the amended application and the Consolidated Statement of Claim contain a case based on s 9 of the RD Act not dependent upon any finding that the appellants were employed by the State.

Secondly, the case put forward was in effect that determining and paying the grants in the amounts that were fixed had the effect of at least impairing the enjoyment of a relevant human right (the right to equal pay for equal work, by reference to applicable award rates) because the grants did not permit or did not enable the Church to pay award rates or because the grants effectively determined the amount to be paid in wages by the Church.

Thirdly, the reference to the payments of the grants as the “acts” for s 9 incorporated, from time to time, notions of decisions concerning how the grants were calculated. The primary case of the appellants was to the effect that the State in fact and in practical reality calculated the amount of the wages to be paid in the calculation of the grants. This threw up for consideration, as a central issue in the case, how the grants were calculated and the relationship between the calculation and payment of the grants and the payment of below award-wages.

Fourthly, there was a degree of imprecision and confusion in the identification of the distinction, exclusion, restriction or preference for the purposes of s 9(1) and the relationship of such with race. What can be said, it seems to me, is that within the pleading and submissions can be found the assertions that the acts of calculating and paying the grants involved taking into account that the funds would be required to fund below-award wages as distinct from award wages and that the calculation of the grants was made on that basis. This occurred, so it was said, because the ultimate recipients of the below-award wages were Aboriginals.

Fifthly, in fairness to the pleader, some of the difficulty in enunciating how the case fits into s 9 on the hypothesis that the State was not the employer of the appellants can be seen to flow from the almost elusive simplicity of s 9(1), the content of which can be described as “vague and elastic”: see Gibbs J in Gerhardy v Brown (1985) 159 CLR 70 at 86. Nevertheless, what was thrown up for debate and consideration were the calculation of the grants, the relationship between the amounts of the grants fixed upon and paid, the payment of below-award wages, the reasons why the appellants were paid below-award wages, and why the amounts of the grants were calculated as they were.

64    I have extracted these paragraphs in their entirety to make good the following proposition. Although, especially in a large and wide-ranging proceeding such as this, it is important to hold a party to the party’s ‘case’ (including, as a cornerstone, the pleadings), in order to do justice between the parties, the Court must strive to ascertain, as Allsop J put it, what is “thrown up for debate and consideration” by the case as it has been framed. At times, the respondents’ approach in final submissions was, in my opinion, too narrow and sought to have the Court quarantine and assess in isolation the applicants’ factual allegations. In my opinion, the approach taken by the applicants in final submissions remained broadly consistent with their pleadings and properly grouped the conduct of QPS officers into four categories. Within each category there may be several “acts” for the purposes of s 9 of the RDA, but it is appropriate to deal with the applicants’ allegations in a more holistic way than the respondents’ submissions suggested.

65    For example, the respondents submitted, on the basis of the Full Court’s decision in Iliafi v The Church of Jesus Christ of Latter-day Saints Australia [2014] FCAFC 26; 221 FCR 86 at [44], that there were a number of “elements” to s 9(1), and in their written submissions, set out what they said the applicants had to prove in the following way:

(a)    the officer did an act;

(b)    the act:-

(i)    involved a distinction, exclusion, restriction or preference;

(ii)    based on race, colour, descent or national or ethnic origin; and

(c)    the act:-

(i)    had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of a right of the applicants;

(ii)    which right was a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

66    It is correct that this is how Kenny J (with whom Greenwood J and Logan J agreed) in Iliafi set out what the appellants had to prove in the case before her. I do not understand this paragraph of her Honour’s reasons as doing more than that. In particular, I do not read her Honour’s reasons as suggesting that the division of s 9(1) into a series of smaller elements is a necessary part of s 9(1). In Iliafi, the respondent, the Church of Jesus Christ of Latter-day Saints Australia, had discontinued its Samoan-speaking worship groups so that the appellants were no longer able to worship publicly as a group in their native Samoan language at services conducted by the Church. As Kenny J observed at [46] the central issue was whether or not the appellants had in fact identified a right that could be properly described as “a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”, within the meaning of s 9. Her Honour held that the three rights in Arts 5(d)(iii), (vii) and (viii) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) neither separately nor together gave rise to a right to worship publicly as a group in the appellants’ native language at the Church’s services of public worship. Therefore, the appellants failed to establish that there was a “human right or fundamental freedom ... of a kind referred to in Article 5 of the Convention” that engaged s 9: at [110].

67    There was no dispute in Iliafi about what constituted the “act” for s 9 purposes. The appellants submitted that the “act” was the Church’s decision to cease Samoan language services, or alternatively to require services to be conducted in English (see [21]), and the Full Court did not have cause to comment on the correctness of that characterisation in its reasons.

68    In the present case, the respondents’ submissions respond to the applicants’ case at the level of itemised conduct of each individual QPS officer. Such a narrow and granular focus is not always required. The applicants’ case, as disclosed through the pleadings and final submissions, takes the conduct of QPS officers at both a broad and a particular level.

69    The applicants’ factual contentions traverse a wide range of conduct by QPS officers. Sometimes the contentions do descend into great detail, and examine police conduct at quite a minute level, including by copious references to sections of the OPM and alleged non-compliance by QPS officers with those sections. In circumstances such as these, it is likely (and has proven to be the case in my opinion) that contraventions of s 9 will not be made out at such a detailed level, measuring each individual piece of conduct against s 9. It is also true that where there is a serious allegation of individual conduct it may well sustain a contention that the conduct contravenes s 9, and this has also proven to be the case in this proceeding.

70    The detail in the applicants’ allegations and arguments tended to overwhelm the general narrative and thrust of their case. To that extent, the respondents cannot fairly be criticised for taking the plethora of allegations of individual conduct and dealing with them one by one. Rather, the point I am making is that a more holistic approach to s 9 is required, if it is to be properly understood.

71    Prior to final submissions, and in order to ascertain what was really “thrown up for debate and consideration”, I asked the parties to provide a summary, limited to 3 pages, of their contentions on the specific contraventions of the RDA alleged by the applicants (with cross-references to the pleadings and submissions). This was to encourage closer focus on how it was that conduct of QPS officers was said to contravene the RDA, rather than how it was said to be generally substandard, or non-compliant with various procedural requirements such as those set out in the OPM.

72    Those summary documents proved most helpful in re-focusing the parties’ arguments on contraventions of the RDA and in identifying the principal conduct impugned by the applicants. In that regard, I note that the applicants pleaded that the second respondent, the Commissioner, had a general “prescribed responsibility” pursuant to subs 4.8(1) and (2) of the Police Service Administration Act 1990 (Qld) (PSA Act) for the efficient and proper administration, management and functioning of the QPS, including its “priorities” and the conduct and discipline of its members. However, in final submissions the applicants did not press this as an independent ground of liability, focusing instead on the actions of individual officers for whose conduct the first respondent is vicariously liable.

Two aspects of the legal contentions

73    There are two aspects of the legal contentions which should be summarised here. The first is the nature and scope of the general legal duties and responsibilities said by the applicants to be applicable to the conduct of the police officers during the events in November 2004. The second is the parties’ respective contentions about the operation and application of s 9 of the RDA.

Nature and scope of the legal duties of QPS officers

74    The applicants contend the impugned conduct of QPS officers should be viewed through the prism of the general legal duties and responsibilities of police officers, at an individual and a systemic level, to members of the Queensland community whether individually or in relation to the whole community. These duties are identified by the applicants as having their source in the common law and the provisions of the PSA Act, read with the OPM and the QPS Human Resource Management Manual (although the Manual barely featured in evidence or submissions). As I develop below, many of the applicants’ allegations identified non-compliance by QPS officers with their duties as the “distinction” involved in their conduct for the purposes of s 9.

75    As the respondents submit, the applicants did not plead any common law duties informing or governing the conduct of QPS officers in the events in November 2004. In any event, it is difficult to see what the existence of common law duties (assuming some could be identified) could add to the wide-ranging duties imposed on the QPS officers by, and pursuant to, statute. It may well be that the statutory functions and powers of QPS officers operate “in the milieu of the common law” (see Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [26] (Gaudron J)) but the applicants did not develop any submissions about the content of that “milieu”.

76    The respondents admit that at all material times the functions of the QPS included those set out in s 2.3 of the PSA Act, namely:

(a)    the preservation of peace and good order—

(i)    in all areas of the State

(b)    the protection of all communities in the State and all members thereof—

(i)    from unlawful disruption of peace and good order that results, or is likely to result, from—

(A)    actions of criminal offenders;

(B)    actions or omissions of other persons;

(ii)    from commission of offences against the law generally;

(c)    the prevention of crime;

(d)    the detection of offenders and bringing of offenders to justice;

(e)    the upholding of the law generally;

77    The respondents also accept that those officers involved in the investigation into Mulrunji’s death had the following legal obligations:

(a)    to expeditiously conduct an impartial investigation;

(b)    to perform their duties in such a manner that public confidence and trust in the integrity and impartiality of the QPS is preserved; and

(c)    to perform their duties impartially and in the best interests of the community of Queensland without fear or favour.

78    These obligations can be described as a synthesis of what is found in s 2.3 of the PSA Act, ss 2.5.1 and 2.5.3 of the OPM (set out at [166] and [167] below), and a range of obligations imposed by the QPS Code of Conduct. Although the respondents contended in their defence that the Code of Conduct was not legally enforceable, the concession described at [77] above recognises what is inherent in s 2.3 of the PSA Act.

79    Although this is expressed in the respondents’ submissions by reference to the investigation into Mulrunji’s death, in my opinion there can be no meaningful distinction between the existence of those obligations in relation to a death in custody, and the existence of those obligations in relation to the subsequent conduct of the QPS on Palm Island until approximately 28 November 2004 (which is the end point of the applicants’ allegations). In other words, the requirement to act impartially which the respondents accept attached to the investigation of Mulrunji’s death is a general requirement to act impartially attaching to all relevant conduct of QPS officers.

80    I did not understand the respondents’ submissions to cavil with that proposition, although senior counsel for the respondents did submit that the way the “impartiality duty” was pleaded was something of an artificial construct. I agree with that submission. The important point, however, is that, in their conduct as police officers in all circumstances (for example, during an investigation, during public policing duties, when searching for and apprehending persons suspected of committing offence, when detaining suspects, and when dealing with the general public and communities in relation to law and order issues) it is clear that QPS officers, like all other police officers, have a duty to act in the manner described at [77] above.

81    The applicants submitted the “impartiality duty”, as they described it, could be approached from the standpoint of the authorities on apprehended bias (Isbester v Knox City Council [2015] HCA 20; 255 CLR 135) and procedural fairness (Annetts v McCann [1990] HCA 57; 170 CLR 596), and then also referred to Beckett v State of New South Wales [2015] NSWSC 1017, which is a malicious prosecution case. The respondents also referred to Isbester, mostly to submit it was of little assistance. This is one of several areas in which the parties’ submissions did not assist the Court. Isbester is a decision dealing with apprehended bias as a component of the rules of procedural fairness in the exercise of a statutory power (to destroy a dog), and dealing in particular with the question whether a person who has previously performed a role as an “accuser” or “prosecutor” can be involved in the making of a decision. The circumstances of Isbester are far removed from the circumstances of the present proceeding.

82    Beckett is a case to which I return later in these reasons in relation to damages. I outline the circumstances of Beckett at [1751] and [1763] below. Like most successful malicious prosecution cases, Harrison J recognised there needed to be a finding that a police officer (or prosecutor, but both exercising public powers to maintain the rule of law) in commencing or continuing a prosecution did so for a dominant purpose other than the proper invocation of the law – namely, an illegitimate or “oblique” motive: see A v New South Wales [2007] HCA 10; 230 CLR 500 at [91] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). Although the language of impartiality is not generally used in the authorities dealing with malicious prosecution, impartiality is plainly an underlying premise in the proper exercise of prosecutorial discretion.

83    The role of choice, or discretion, in the performance of police functions and the exercise of police powers on a day-to-day basis has been the subject of considerable commentary: see S Bronitt and P Stenning, ‘Understanding Discretion in Modern Policing’ (2011) 35 Crim LJ 319 and the sources to which they refer. Like other public powers and functions (and especially so where they affect liberty or involve coercion) they must be exercised reasonably, rationally and fairly: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [14], [23] (French CJ), [48], [64] (Hayne, Kiefel and Bell JJ), [88]-[89], [92] (Gageler J). The Supreme Court of Canada put in this way in Beaudry v The Queen [2007] 1 SCR 190 at [35]-[39]:

There is no question that police officers have a duty to enforce the law and investigate crimes. The principle that the police have a duty to enforce the criminal law is well established at common law: R. v. Metropolitan Police Commissioner, [1968] 1 All E.R. 763 (C.A.), per Lord Denning, M.R., at p. 769; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.), per Lord Keith of Kinkel; P. Ceyssens, Legal Aspects of Policing (looseleaf ed.), vol. 1, at pp. 222 et seq.

Moreover, this principle is codified in s. 48 of the Police Act, R.S.Q., c. P13.1:

48.    The mission of police forces and of each police force member is to maintain peace, order and public security, to prevent and repress crime and, according to their respective jurisdiction as set out in sections 50 and 69, offences under the law and municipal bylaws, and to apprehend offenders.

In pursuing their mission, police forces and police force members shall ensure the safety of persons and property, safeguard rights and freedoms, respect and remain attentive to the needs of victims, and cooperate with the community in a manner consistent with cultural pluralism. Police forces shall target an adequate representation, among their members, of the communities they serve.

Nevertheless, it should not be concluded automatically, or without distinction, that this duty is applicable in every situation. Applying the letter of the law to the practical, reallife situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the reallife demands of justice is in fact the basis of police discretion. What La Forest J. said in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, is directly on point here:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid.

Thus, a police officer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigation might produce evidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage the judicial process. But this discretion is not absolute. Far from having carte blanche, police officers must justify their decisions rationally.

The required justification is essentially twofold. First, the exercise of the discretion must be justified subjectively, that is, the discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds (reasons of Chamberland J.A., at para. 41). Thus, a decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion. However, the officer’s sincere belief that he properly exercised his discretion is not sufficient to justify his decision.

Hence, the exercise of police discretion must also be justified on the basis of objective factors. I agree with Doyon J.A. that in determining whether a decision resulting from an exercise of police discretion is proper, it is important to consider the material circumstances in which the discretion was exercised. …

84    It was not in dispute between the parties that QPS members, like other police officers around Australia, had special responsibilities and obligations in relation to the death of any person in police custody. There was no dispute that the principal source of those responsibilities and duties for QPS officers was the OPM at ss 1.17 and 16.24. Clause 7.2 of the Queensland Coroner’s Guidelines confirmed the particular sensitivities of such circumstances:

Deaths in custody warrant particular attention because of the responsibility of the state to protect and care for people it incarcerates, the vulnerability of people deprived of the ability to care for themselves, the need to ensure the natural suspicion of the deceased’s family is allayed and public confidence in state institutions is maintained.

85    The respondents also accepted that there was a suite of special considerations about the treatment of Aboriginal people in custody, arising out of the recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which I address at [129] below, and out of the reaction of state and federal governments to those recommendations. Where the parties differed was on the significance (if any) of these matters to the allegations made by the applicants. The applicants submitted that those police officers present on Palm Island after Mulrunji’s death and with responsibility for the investigation, and for dealing with Mulrunji’s family and the wider Palm Island community, should have known more than they appeared to have known about recommendations in the RCIADIC report. The applicants also submitted that QPS officers should have the acted consistently with those recommendations in the way they discharged their duties during the events in November 2004. However, once again, the content of such responsibilities or obligations arising from the RCIADIC report was not addressed by the applicants.

86    The police officers who gave evidence disclosed little interest in the RCIADIC recommendations and little awareness of how the matters discussed by the Royal Commission should affect their day-to-day policing where any Aboriginal person dies in custody or where there is a risk of that occurring, especially in communities consisting overwhelmingly of Aboriginal people. This attitude is one of the circumstantial matters contributing to the view I have formed that the conduct of QPS officers in the investigation into Mulrunji’s death involved distinctions that were based on race.

Parties’ arguments on s 9 of the RDA

87    There are some differences between the parties on the construction and operation of s 9, although the larger area of dispute relates to the application of s 9 to the facts. I have set out my findings on the construction and operation of s 9 at [508] to [562] below.

88    As I have noted above, while s 9(1) can be broken down into a series of elements or components, it is important not to lose sight of the whole, and to read the provision accordingly: see Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 389 at 399-400 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), endorsing comments made by Oliver LJ in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 at 144; and see Baird at [37], [61] (Allsop J). The respondents accept, in general, that the applicants have alleged a series of “acts” (including omissions – see RDA s 3(3)) for the purpose of s 9 which, whether taken individually, or in groups, or cumulatively, can be assessed in terms of whether they contravene s 9. There is broad agreement about the construction of the terms in the phrase “distinction, exclusion, restriction or preference” in s 9 and the proposition that whether these matters exist must be determined objectively: Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [209] (Cowdroy J). The parties are also agreed on the correct approach to the causal element of “based on” in that section. An act will be based on race if it is done by reference to the race of a person and does not require the stronger causal relationships that it be done “because of” or “by reason of” race: Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; 91 FCR 8 at 29-30 (Weinberg J). The parties are agreed that the same approach applies to omissions. There is broad agreement between the parties about the differences of the words “purpose” and “effect” in s 9, and the proposition that the phrase “on an equal footing” in s 9 suggests a comparison with how others enjoy the identified rights: Australian Medical Council v Wilson [1996] FCA 1618; 68 FCR 46 at 63 (Heerey J), and see the additional comments of Black CJ at 48 and Sackville J at 81.

89    There is some contest between the parties about the nature and content of the human rights on which the applicants rely, and which they contend have been nullified or impaired by the respondents’ conduct. The applicants refined, over the course of the proceeding, the human rights on which they rely. At the time of final submissions, they relied on seven human rights, namely:

(a)    to equality before the law and equal protection of the law (Art 26 of the International Covenant on Civil and Political Rights (ICCPR), and contended to be also a right in customary international law);

(b)    to equal treatment before organs administering justice (ICERD Art 5(a));

(c)    to access public services (ICERD Art 5(f));

(d)    to enjoyment of property without unlawful interference (contended to be a customary or general international law right);

(e)    not to be subjected to unlawful interference with privacy, family or home (ICCPR Art 17);

(f)    to liberty and security of person (ICERD Art 5(b) and ICCPR Art 9); and

(g)    not to be subjected to inhuman or degrading treatment (ICCPR Art 7).

90    As I understand their submissions, the respondents submit that Arts 5(a) and 5(f) of the ICERD are not engaged on the facts. As to Art 5(b) of the ICERD and Arts 7, 9 and 17 of the ICCPR (which apply to the subgroup members only) the respondents submit those rights, properly construed, have not been impaired. The respondents also submit, referring to Maloney at [317] and [336] (Gageler J), that the applicants cannot invoke Art 26 of the ICCPR (the equality before the law right, including in any form it exists in customary international law). They submit that, since s 9 is a means by which the objective expressed in Art 26 is achieved, to construe Art 26 as part of the content of s 9 involves “unproductive circularity”. Finally, they submit that the applicants should not be permitted to rely on any general right to enjoy property as it is outside the applicants’ pleaded case and, in any case, reliance on such a right is unnecessary because the applicants’ complaints with respect to interference with their homes is covered by Art 17 of the ICCPR.

The applicants s 9 contentions applied to the facts

91    I have outlined the three sets of issues on the pleadings, only two of which were pressed, at [7]-[12] above. On the first set of issues (the events following Mulrunji’s death, between 19 and 24 November 2004), the applicants identify four categories of conduct which they contend constitute unlawful racial discrimination. Those four categories are: the compromise of the impartiality of the investigation into Mulrunji’s death; the failure to provide support to Aboriginal witnesses; the manner in which QPS officers completed a “Form 1”, containing information for the coroner, and the conduct of the autopsy; and the failure to meet the cultural needs and expectations of the Palm Island community.

92    On the second set of issues (the events immediately following the burning down of the police station, between 22 and, broadly, 28 November 2004), the applicants identify six categories of conduct which they contend constitute unlawful racial discrimination. Those six categories are: the departure of SS Hurley from Palm Island; failure by QPS officers to communicate with the local community and defuse tensions; the making and subsequent revocation of an emergency declaration under the PSP Act; the deployment of SERT officers; the arrests of those suspected of involvement in the burning down of the police station and the unrest on the island; the entries onto the properties and into the houses of those suspects; and a sixth category of a collection of other more specific instances of conduct the applicants allege to have been racially discriminatory in contravention of s 9 of the RDA.

93    In their summary of final submissions, the applicants re-organised these issues into four, broadly chronological, categories: the investigation into Mulrunji’s death; the ‘intervening week’ claim; the emergency declaration claim; and the SERT claim. All these matters fell within their pleadings.

94    In that part of my reasons below where I make findings on the contested allegations (the Resolution section, beginning at [717] below), I deal with the fact finding under each of the four categories identified by the applicants in final submissions, read with the pleadings.

Whether certain claims by the applicants are within their pleaded case

95    In final submissions, the respondents identified two areas where they contended the applicants’ submissions strayed outside the pleaded case.

96    The first was the applicants’ submission that the conduct of QPS officers could be examined cumulatively, or as a whole, in relation to each of the four categories I have set out at [5] above. The respondents submitted there was no pleading that alleged a contravention of s 9 by the conduct in each of the four categories when viewed as a whole or cumulatively.

97    In my opinion it is clear that the applicants put their claim on alternative bases. It is correct that they pleaded that individual activities constituted contraventions of s 9. Many of those claims must fail, for reasons I give elsewhere, because when the conduct of QPS officers is dissected in that way, then as dissected no contravention of s 9 is made out.

98    However, the applicants also relied on the conduct of QPS officers in a more cumulative way. That is apparent from the descriptions of the “QPS Failures” in [244] and the “Further Failures” in [309] of the third further amended statement of claim, in which various allegations are grouped under each of those headings. The summary of final submissions by the applicants does not, in my opinion, constitute a new case based around four categories of contraventions of s 9 presented in a new, cumulative way that is not reflected in their pleaded case. The grouping found in final submissions is apparent from the descriptions of “QPS Failures” and “Further Failures” in the third further amended statement of claim. What the applicants then did in their summary of final submissions was to attempt to identifyby reference to the chronology of events, the pleadings and the submissionshow it was said that the impugned actions and decisions of QPS officers contravened s 9 of the RDA. This is what I had asked them to do in their summary and by undertaking that task the applicants have not changed or altered their fundamental case. In their summary document, the applicants put their case directly in the terms of s 9 of the RDA, which is what I had asked them to do. I do not accept the respondents’ submissions that the applicants have changed their case.

99    The second area was the nature of the challenge to the conduct of the SERT officers on 27 and 28 November 2004. The respondents submitted there was, first, no s 9 challenge to the decision to deploy SERT officers to Palm Island and, second, no s 9 challenge to the decision to use SERT officers to effect the arrests of the 11 individuals over 27, 28 and 29 November 2004.

100    The applicants’ senior counsel in final submissions expressly disclaimed an argument based on any decision to deploy SERT to Palm Island, as distinct from what happened once SERT was deployed to Palm Island. However, she maintained, as did the applicants’ summary of final submissions, that the pleadings did disclose claims about the use of SERT to effect the arrests, entries and searches of the houses of the applicants and the members of the subgroup. As will be apparent from the part of my reasons dealing with these issues, I accept that claim was fairly raised on the pleadings. Adapting the language of Art 5(f) of the ICERD, senior counsel for the applicants submitted that the applicants have “focussed more on the way the services were delivered on the island once they were there”. She confirmed this included a claim that SERT should not have been engaged to perform the arrests and should not have been instructed to go into the houses and apprehend individuals.

101    I have some sympathy for the respondents’ submissions. I too found it difficult to keep comparing the way the case about SERT was put in submissions, and indeed the way the cross-examination was conducted, with the pleaded case. However, in my opinion the answer to this difficulty lies in a somewhat cumbersome and unwieldy pleading, rather than any change of case by the applicants. I turn to explain why.

102    The pleadings are structured in the following way. A series of “acts” for the purposes of s 9 are pleaded, divided into three categories as I have said, one of which (the systemic failures) was abandoned. That left the series of acts called the “QPS Failures” and the “Further Failures”. In the latter series, one finds a sequence of pleaded paragraphs dealing with the formulation of an “action plan” about the use of SERT (from [279] onwards). This included allegations (at [281]) about the nature and presentation of SERT. The applicants then make a series of allegations about what SERT did on Palm Island (at [287]). The allegations of conduct which the applicants later characterise as unreasonable and disproportionate is set out at [288] and [290]. Relevantly, then at [300]-[306] there are allegations about the unlawfulness of the arrests, and the entries and searches of houses. This conduct (the unlawful arrests and the unlawful entries) is then later alleged to be “acts” for the purpose of s 9 (at [309]).

103    Part of the difficulty arises because of the pleadings’ focus on the description of “unlawful” arrests and “unlawful” entries. As I note elsewhere, this is an unhelpful focus. But there is still no doubt that the conduct being impugned is what the SERT teams were used to do, in effecting the arrests and conducting the entries and searches, even if the shorthand phrase “the unlawful arrests” and the “the unlawful entries and searches” is unhelpful. It is then alleged (at [312]), amongst other allegations, that the respondents did not perform their duties in the best interests of the community of Queensland, without fear or favour, and according to the same standard as those QPS services were supplied to other residents of Queensland who did not reside in a predominantly Aboriginal community, whether or not that community was geographically located in a remote location” and “acted so as to create the appearance of an excessive and unwarranted response to the events on Palm Island of 26 November 2004, and thereby brought the QPS into disrepute”.

104    These pleadings are not without difficulty, but in my opinion when considered with the submissions made on behalf of the applicants from well before the trial, it is clear that a cornerstone of the applicants’ case is that the employment of SERT officers (with all that goes with a SERT operation, as pleaded) to effect the arrests, and to enter and search houses for suspects, was unreasonable and disproportionate and was only undertaken because Palm Island was an Aboriginal community. Neither the pleadings nor the written submissions focus on the decision to deploy SERT. Indeed, there were significant gaps in the evidence about which QPS officer or officers made that decision.

105    I do not consider that the respondents have suffered any unfairness because of the way the case was conducted by the applicants and drawn together in final submissions. It was clear from the outset that the manner and conduct of the arrests, entries and searches was a major feature of the applicants’ case. Indeed it was the reason for the creation of the subgroup. The definition of the subgroup in the further amended originating application is:

The Applicants also represent a sub-group of group members, being persons who either:

a.    were apprehended or arrested by, or in the presence of SERT or PSRT officers in connection with the events on Palm Island on 26 November 2004;

b.    were present at the arrests referred to in the preceding sub-paragraph;

c.    otherwise witnessed or were present during the Raids (as defined in the 3FASC); and/or

d.    had their homes entered into, or their property otherwise interfered with, by officers of the QPS during the Raids without their consent.

106    The evidence in chief and cross-examination also revealed a focus on the manner of the arrests, entries and searches. The respondents clearly understood this since they called three SERT officers as witnesses, and addressed in their evidence through DI Webber the connection between the deployment of SERT and the emergency declaration. I consider the respondents were on notice about how the use of SERT would be challenged as a contravention of s 9. It was always couched as a disproportionate and unreasonable use of force. The applicants’ opening submissions, filed and served before trial, stated (at [20]-[24]):

Part J also describes the police response to the “Riot”, whereby an emergency situation was declared, and the island was physically cut off from the rest of Australia and placed under a regime of quasi-martial law, including “riot squad” (PSRT) and “counter-terrorism” (SERT) police officers marching through the streets in full uniform, and going house to house arresting people in front of their children—a spectacle that would be quite unimaginable in, for example, a residential suburb of Brisbane. Yet this was all done without the Palm Island community or even the local council being advised that an emergency situation had been declared, what that entailed, and for how long it was expected to remain in place.

As Part K of the 3FASC alleges, the emergency situation allowed the police to bypass all of the usual checks and balances on police behaviour. For example, when entering a person’s home to arrest them as part of a carefully planned and executed police operation, such as the operation on Palm Island on 27 November 2004, the ordinary protocol would be for the police to first obtain a warrant to enter the property and a warrant for the person’s arrest. As Deane J further stated in Donaldson, 126: “It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.” On Palm Island on 27 November 2004, however, the police used the pretence of the “emergency situation” to excuse themselves from obtaining warrants. This meant that there was no evidence compiled and presented to a judge to ensure the validity of the entry and arrest, and the entire exercise thereby becomes less transparent and more questionable, regardless of some of the arrests resulting in convictions (and others not).

Other actions of the QPS during and immediately after the emergency situation also contributed to the appearance of quasi-martial law, such as the commandeering of the Catholic school’s bus, and the fact that all transport to and from the island was cut off unless it had the blessing of the police.

The Respondents have pleaded that the visible police presence was created in order to “reassure residents that the police were present on the island” and “to protect the community from unlawful disruption of peace and good order” (Defence:[206(h)], see also [225(c)]). The suggestion of residents of Palm Island being at once intimidated and “protected” by the authorities invokes the island’s sorry history. Also familiar is the Respondents’ attempts to demonise the Palm Island community, including a focus on the local residents’ supposed possession of “sticks and spears” or “bladed weapons” and other implements and the use of the SERT team to raid the Sub-Group’s houses, in circumstances where SERT officers are trained to presume that people present a threat until proven otherwise.

The Applicants define the above acts and omissions as cumulatively forming the “Further Failures”. As in the claim concerning the QPS Failures, the Applicants’ claim is not necessarily contingent on the conduct of the police being shown to have been unlawful in an administrative law sense, but rather that, because of the nature of the community on Palm Island, the ordinary rules were simply not followed and the community was not policed as it otherwise would have been. On this basis, the Applicants allege a breach of RDA s 9(1).

(Italics in original.)

107    Finally, one of the common questions in relation to the whole group has always been:

whether members of the Queensland Police Service responded unreasonably and/or unlawfully to the riots on Palm Island in November 2004;

108    This can only be understood as a reference to the manner in which SERT was used to effect the arrests and conduct the entries and searches.

109    Accordingly, I do not accept the respondents’ second submission regarding the way in which they contend the applicants have changed their case.

Proof

110    Two features of this proceeding were, first, the patchiness of the evidence relied upon by both the applicants and the respondents and, second, the patchiness of references in submissions to the evidence which was relied upon. There has been a great deal of material accumulated about the events of November 2004 and it is variously located in court records (including criminal prosecutions and appeals, and High Court proceedings), coronial records (and appeals from coronial inquiries), internal police inquiries and inquiries of the Queensland Crime and Misconduct Commission (CMC). Some of the witnesses before me were in the unenviable position of having given evidence about these events on several prior occasions. It often appeared that the legal representatives, and indeed the witnesses, knew a great deal more about the context and extent of aspects of the evidence than the Court was privy to. The forensic choices made by the parties and their legal representatives about the nature and extent of the evidence adduced in this proceeding does have consequences for various issues to be determined. Where appropriate, I set out those consequences in the section of these reasons where I deal with the issues affected. For example, findings I have made about individual officers can only be based on the evidence before the Court. If there were other, or more detailed, explanations for their conduct and attitudes, evidence of those explanations was not adduced.

111    Further, the patchiness with which the parties respectively referred to the evidence which was tendered also means the court was left either without much guidance about the specific use to which certain evidence should be put or, as to some of the evidence, without guidance about the content of the evidence. The video evidence is a good example in the latter category. No comprehensive attempt was made to provide the court with information enabling it to identify all persons speaking in each video, to take but one issue. Mr Wotton was asked in evidence in chief to identify some people in some videos, but it was far from comprehensive. No agreed facts were tendered on these matters. Many people who played central roles in the events which are the subject of the applicants’ allegations were not called to give evidence. With one notable exception (Ms Erykah Kyle), no explanation was given for these omissions. Again, those forensic choices may have consequences for the parties in the Court’s fact finding.

112    Both parties accepted the relevance of the terms of s 140 of the Evidence Act which provides:

Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence;

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

113    The Full Court in Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 at [71] noted that s 140(2) reflects the common law as stated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The parties both accepted, however, that neither the matters in s 140(2) nor the common law approach in Briginshaw create any third standard of proof between the civil and the criminal, and the standard remains proof on the balance of probabilities: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 at 449-50 (Mason CJ, Brennan, Deane and Gaudron JJ); Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [110] (French and Jacobson JJ) (Qantas Airways v Gama).

114    I accept that the applicants’ allegations against the respondents can be described as “serious”. To allege that individuals performing public functions and exercising public powers did so on the basis of race is to make an allegation that reflects poorly upon those individuals. To allege that police officers, who have sworn to uphold the law, have contravened the law, is a matter of significance. I accept that these features of the applicants’ case require the Court to be mindful of the three factors set out in s 140(2) of the Evidence Act.

115    That said, the “seriousness” of the circumstances in this case is not one-sided. A young man died in police custody, having entered that custody apparently active and well just under an hour earlier. A community lost that young man, and a family lost a loved one. A significant number of people lost their liberty in the aftermath of protests over his death when those protests erupted out of control. Some people lost their liberty for a long period of time and were separated from their communities and their loved ones. Some of the families involved were torn apart by these events. Young children, men and women, including a pregnant woman, were terrified by armed masked men charging into their houses. A community was placed under police control in a way which resembled a war zone, with SERT and specialised riot officers, as well as other police officers and dogs, overwhelming the island with helicopters buzzing overhead. All these matters are also serious.

116    The respondents contended that the applicants “must establish a reasonable and definite inference that the acts complained of were based on race”. The respondents’ adjectives correctly recognise what is implicit in the drawing of inferences by a court. An inference drawn to make a finding of fact must be one that is reasonably available on the evidence and capable of being expressed with clarity: Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305 (Dixon CJ), 306 (Kitto J); Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [46] (French CJ, Bell, Gageler, Keane and Nettle JJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [70]-[71] (Weinberg, Bennett and Rares JJ). An inference will not be reasonably available if it rests upon “mere conjecture”: R v Baden-Clay [2016] HCA 35; 90 ALJR 1013 at [47] (the Court), quoting Peacock v The King [1911] HCA 66; 13 CLR 619 at 661.

117    Most findings of unlawful discrimination, including those arising from a provision such as s 9 with its formula “based on race”, will be based on inferences drawn from the evidence. Seldom is it the case that there is either an admission of the racial basis for conduct, or direct evidence of that basis. Some of the examples that could be given – a racially-based sign outside a cinema – are easy, but not especially realistic examples of direct evidence. In most cases dealing with a course of human conduct, the picture will be more complex, and the drawing of inferences will be required. All the more so when there are, as here, multiple actors. Where I have drawn inferences in reaching my conclusions in this proceeding, I am satisfied they are reasonably available on the evidence and I have sought to express clearly the inference I have drawn.

118    It is appropriate here to say something about the parties’ respective reliance on findings made by other bodies, and individuals, about the events of November 2004 on Palm Island. I have set out those other reports and inquiries at [397] below. During the course of the trial when the use of these other findings arose, senior counsel for each of the parties accepted the findings or conclusions in the respective reports could not be adopted by the Court as findings in this proceeding. Nevertheless, in final submissions the course disclaimed during the trial was precisely what the applicants and the respondents urged upon the Court. Broadly speaking, the respondents urged the Court to accept (and adopt, implicitly or expressly) the correctness of the findings and approach of DC Rynders in the ‘Report in Response to the CMC Review of the Queensland Police Service’s Palm Island Review”’. Conversely, the applicants urged the Court to do the same with the findings of Deputy Chief Magistrate Hine and the CMC report. Obviously each side sought to impress the Court with prior conclusions which favoured that side’s general thesis in this proceeding.

119    As I made clear throughout the trial, that is not an approach which is appropriate to adopt. It may be that the fact of the conclusions of each, or some, of those previous reports has some probative significance for the issues to be determined in this proceeding. If that is the case, the fact of the conclusions reached may be taken into account. At best, they have tangential relevance in this respect. Otherwise, each of those individuals or bodies reached their own conclusions consistently with the statutory task conferred upon them, and on the basis of the evidence before them. The evidence before this Court was forensically selected by the parties, to advance their respective contentions in relation to contraventions of the RDA. Although many of the witnesses before me had given evidence, or provided information, to some of these other inquiries, I take into account only their evidence given in this proceeding, including any prior statements tendered, and including where they were examined or cross-examined on evidence given elsewhere. Otherwise I have not taken into account reports of their evidence given elsewhere, and unless I say so expressly I neither adopt nor reject the findings and conclusions of those other inquiries. This proceeding occurs as an exercise of judicial power under a different statute and in a different context.

120    Reliance on evidence given in other contexts by witnesses called in this proceeding raises a particularly difficult issue. Despite the Court having asked on several occasions for submissions on this issue, neither party made any meaningful submissions. I give one example to illustrate the dilemma.

121    There is an allegation by the applicants that the investigating officers did not interview PLO Bengaroo in a sufficiently thorough way, and also that they treated him, and what he had to say, less seriously because he was an Aboriginal person. This is an allegation directed especially at DI Webber. DI Webber had given substantial evidence on this issue to the Palm Island Review conducted by Acting Superintendent Mike McKay and Inspector Robert Gee. In that review there was an almost identical allegation made, arising in that context out of criticisms of the investigators in comments by Acting State Coroner Clements. DI Webber gave substantial evidence on this topic: see the Palm Island Review at 355-64. During this proceeding, he was examined extremely briefly on the matter (and gave some inconsistent answers), then was cross-examined on the events themselves briefly, with most of the cross-examination involving putting to him what was found by the Palm Island Review and by Acting State Coroner Clements. It was difficult to see the relevance of that line of cross-examination, for the purposes of this proceeding. The absence, by forensic choice of both parties, of direct explanation from DI Webber for his treatment of PLO Bengaroo leaves the Court to rely on other evidence in this proceeding to resolve this allegation.

The role of SS Hurley and my findings about his conduct

122    SS Hurley was eventually charged with manslaughter over Mulrunji’s death and was acquitted. His acquittal by a jury of his peers must be respected. SS Hurley’s conduct in relation to Mulrunji was put in issue many times during the trial of this proceeding and therefore there are many places in these reasons where his conduct is examined. Indeed, some of the applicants’ central allegations relate to the failure to treat SS Hurley as a suspect in Mulrunji’s death.

123    To hear and determine those allegations is not to go behind the acquittal. Rather, it is to assess the conduct of QPS officers in the conduct of the investigation, without the undue benefit of hindsight. That is to be done, for example, by examining what information was available to those officers at the time, its objective qualities, and how those officers did or did not use that information. To find, as I ultimately do, that SS Hurley should have been treated as a suspect if this was an investigation being conducted impartially and independently, and without unlawful race discrimination, is not to suggest he should have been charged with Mulrunji’s murder, or with his manslaughter, or with any other criminal offence at any earlier point in time. It is certainly not to suggest SS Hurley committed any offence in relation to Mulrunji’s death. Rather, it is to assess, as best as can be done, the conduct of the investigating officers as circumstances stood in mid-November 2004.

124    Further, to recognise that SS Hurley’s acquittal on the charge of manslaughter over Mulrunji’s death must be respected is not to immunise SS Hurley from appropriate criticism in relation to his conduct on Palm Island during these events. He was the officer in charge of Palm Island Police Station. Of all the people who should have realised it was inappropriate in the extreme for him to remain on the island for any period of time after Mulrunji’s death, let alone on active duty, it was SS Hurley. Of all the people who should have realised it was inappropriate in the extreme to fraternise with other officers who had been sent to the island to investigate Mulrunji’s death, it was SS Hurley. I am comfortably satisfied SS Hurley would not have behaved as he did, ignoring the obvious community frustration and sense of injustice that existed, if these events had occurred in a small town in rural Queensland with a predominantly non-Aboriginal population. He too had a sense of impunity because he was working in a remote Aboriginal community. His acquittal of the charge of manslaughter does not, in my opinion, stand in the way of this Court making such findings on the evidence before it for the purposes of reaching conclusions about contraventions of s 9 of the RDA.

Matters not contested

The second amended agreed statement of facts

125    The parties prepared, over the course of the trial, a number of versions of a substantial set of agreed facts. As the document developed, it became more than a document which recorded the parties’ agreement as to facts. It encompassed agreement as to provisions of state legislation, the terms of the OPM, the history and findings of the RCIADIC, and the contents of some other key documents upon which the applicants sought to rely. The parties very helpfully produced an agreed list of all the persons involved in the events covered by this proceeding, and their role. A list of the houses entered and searched, with details of the person or persons to whom each house belonged and who was or was not arrested at each house, was also agreed and was most helpful.

126    The parties each reserved their right to submit that some of the facts, legislative or regulatory provisions, or findings of various bodies, were not relevant to the issues arising in the proceeding. However, it was of great assistance to the Court that the parties could agree the provenance and effect of a large number of applicable provisions and policies.

127    I raised with the parties during the course of the evidence whether all of the matters in the agreed statement of facts could properly be admitted pursuant to s 191 of the Evidence Act. The parties agreed that some parts were better treated either as admissions or joint submissions on questions of law. Accordingly, paragraphs of the statement as specified by senior counsel for the respondents on the last day of evidence in the proceeding were not admitted pursuant to s 191 but treated in that way. A final, second amended agreed statement of facts reflecting those changes was filed by the parties prior to final submissions.

Vicarious liability: s 18A of the RDA

128    In their defence to the applicants’ third further amended statement of claim, the respondents admit that all relevant conduct of QPS members as alleged in the applicants’ pleading occurred in the course of the employment of those QPS members, and that those acts were performed by QPS members as employees or agents of the State of Queensland. They also admit that the State of Queensland is liable pursuant to s 18A of the RDA for the actions of QPS members should it be found that those actions constituted unlawful discrimination.

The report of the Royal Commission into Aboriginal Deaths in Custody

129    At various points in their pleadings the applicants rely on the RCIADIC report. Generally they do so to plead that QPS officers who interacted with Aboriginal communities could have been expected to have knowledge of the issues raised in the report, and that officers who could be expected to have such knowledge (such as those under scrutiny in this proceeding) should have applied it in the discharge of their duties. In contrast, the respondents submitted there was, when one reduced the submissions beyond the general, little work for the RCIADIC report to do in the context of this Court’s fact finding about alleged contraventions of s 9 of the RDA.

130    In my opinion, the respondents are broadly correct. However, the RCIADIC report is an important part of the background and context to this case. People on Palm Island spoke about it frequently during the community meetings, as did witnesses before this Court. It, and deaths of Aboriginal people in custody, is part of their lived history, a point poignantly made by Ms Erykah Kyle during the public meetings in November 2004 and by Ms Andrea Sailor during her evidence in this proceeding.

131    The RCIADIC was established by the Australian government in October 1987 in response to public concern that deaths in custody of Aboriginal people were too common and were often poorly and evasively explained. Public agitation for the Royal Commission was led by members of the Aboriginal community.

132    The Royal Commission comprised five independent Commissioners. Its terms of reference required it to examine all deaths in custody in each state and territory between 1 January 1980 and 31 May 1989, together with the subsequent actions that had been taken in response to each death, including the conduct of coronial, police and other inquiries. The Royal Commission was also authorised to take into account the social, cultural and legal factors which may have had a bearing on the deaths.

133    The Royal Commission investigated the deaths of 99 Aboriginal and Torres Strait Islander people who fell within its terms of reference. In its report, the Commission summarised its methodology for investigating the deaths (at [1.2.1]):

All contemporary documents were subpoenaed and studied. Relevant people were interviewed wherever possible and in the great majority of instances this, was possible. In many cases post-mortem reports were reconsidered by eminent pathologists. Not only the cause of death, but all aspects of custodial care and the orders binding on custodians were critically examined. Hearings were held in public; families of the deceased were represented by legal counsel. All documents were made available to counsel. Reports on the ninety-nine deaths have been delivered to government. At the time of writing almost all have been tabled in parliament and thus made public.

134    The Royal Commission’s report was tabled in April 1991. It comprised five volumes of findings and recommendations. Individual reports were also published for each state and territory, including Queensland. The Commission found that, while Aboriginal people in custody did not die at a greater rate than non-Aboriginal people in custody, the rate at which Aboriginal people came into custody was overwhelmingly higher than the rate of the general community. In relation to the causes of the 99 deaths investigated, the Commission found that none of the deaths were unlawful or deliberate killings of Aboriginal prisoners by police. Nonetheless, the Commission found many systemic defects in relation to the standard of care provided to the deceased persons by custodial authorities, and many failures to exercise proper care. In some of the cases under investigation, the defects and failures were causally related to the deaths, in some cases they were not, and in others it was open to debate.

135    The Commission made 339 recommendations in total. The recommendations focused on improving the standard of care provided to people in custody by custodial authorities, improving police and coronial investigations into deaths in custody, ensuring that both arrest and imprisonment are used as a last resort, promoting self-determination, improving relations between Indigenous people and the police, providing adequate legal and social services for Indigenous youth, reducing alcohol and substance abuse, and promoting reconciliation.

136    Every state and territory, as well as the Commonwealth, had responsibility for implementing the recommendations of the report and reporting on their progress. I was not referred by the parties to any progress reports by the Queensland government about its implementation of the Royal Commission’s recommendations. Nevertheless, I have had regard to the 1996/97 progress report of the Queensland government, pursuant to s 144(1)(b) of the Evidence Act; see also Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [619] (Heydon J). I have done this because the report explains how some implementation occurred through instructions in the OPM, on which the applicants relied. I do not understand the subject matter of the Queensland government’s progress report, or its relationship to the OPM, to be controversial in this proceeding, nor to touch on any disputed facts. It is part of the background necessary to understand how the provisions of the OPM came to be what they are. In the progress report, the Queensland government stated it had implemented 163 of the 339 recommendations and partly implemented a further 30. Implementations discussed in the 1996/97 progress report which are relevant to the work of the QPS include:

(1)    the introduction in the OPM of a chapter devoted to custody (chapter 16), which contains orders, policies and procedures concerning conditions in custody and the procedures to follow where there is a death in custody. This addresses a large number of the recommendations of the RCIADIC report;

(2)    the insertion into chapter 8 of the OPM of provisions which implement recommendation 29 of the RCIADIC report, concerning the powers of the coroner in charge of an investigation of a death in custody over the officer in charge of the investigation;

(3)    the introduction into chapters 2, 8 and 16 of the OPM of provisions which give effect to recommendations 32, 35 and 36 of the RCIADIC report, regarding the conduct of police investigations into deaths in custody;

(4)    the insertion into chapter 3 of the OPM of provisions which gave effect to recommendation 86 of the RCIADIC report. That recommendation has some particular relevance to the circumstances of Mulrunji’s arrest. The recommendation was that the use of offensive language in circumstances of interventions initiated by police should not generally be grounds for arrest or charge and that police services should examine and monitor the use of offensive language charges; and

(5)    the introduction into chapters 5 and 16 of the OPM of policies and procedures which give effect to recommendation 62 of the report in supporting diversion of children from the criminal justice system.

137    A number of other reforms were foreshadowed in the report, relating to the upgrading of watchhouses, better cross-cultural training, and more Police Liaison Officers.

138    Prior to the Queensland government’s implementation report, but after the RCIADIC report, the QPS produced a review of its policing in remote Aboriginal and Torres Strait Islander communities. The review, produced in 1994, was said to be a direct response to the recommendations 88 and 232 of the RCIADIC report. A copy of this review is in evidence. Inspector Gregory Strohfeld, who in November 2004 was the officer to whom SS Hurley was directly responsible, was a member of the Steering Committee for the review. The review commenced with an express acknowledgment of the reasons for the ongoing mistrust of the police by many Aboriginal and Torres Strait Islander people. It stated (at [2.1]-[2.3]):

Policing strategies employed in Aboriginal and Torres Strait Islander communities in Queensland have been directly and indirectly determined by changing State Government policies for Aborigines and Torres Strait Islanders. These policies have been embodied in what is perceived by some as largely oppressive legislation which infringed upon fundamental civil and political rights. The police, as enforcers of the law of the day, have been required to undertake a highly visual role in the execution of this legislation throughout Queensland’s history.

The nature of this role has been expressed in many forms, most of which were not conducive to the development of trust and respect for the Police Service among Aboriginal and Torres Strait Islander people. Over the last hundred years, the indigenous people of Queensland have been subjected to a spectrum of ideological stances ranging from dispersal, protectionism, assimilation and integration to self management and self determination. Pursuant to legislation or expressed or implied Government sanction, members of the Police Service have been required to:

(i)    Effect the policy of “dispersal” of local Aborigines from their traditional homelands in the interests of economic development and, in particular, to cater for the interests of European colonial pastoralists and facilitate the establishment of trade routes – a policy which often involved the mass slaughter of clan and tribal groups by police;

(ii)    Forcibly “re-locate” Aboriginal and Torres Strait Islander people to reserve areas – which often involved the separation of family members and the aggregation of traditional enemies in close confines;

(iii)    Locate and punish Aborigines and Islanders who had “escaped” from reserve areas;

(iv)    Forcibly remove half caste Aboriginal children from their parents;

(v)    Forcibly remove Aborigines from their homes to cater for mining interests; and

(vi)    Use British law enforcement procedures and methods to enforce contemporary State laws which were incompatible with Aboriginal and Torres Strait Islander culture and did not take into account traditional indigenous laws and rules of conduct.

Although State Police are not actively involved in these activities today, there are still a significant number of Aboriginal and Torres Strait Islander people who have been directly affected or had relatives or recent ancestors affected by these activities. Subsequently, it is not surprising that a significant number of Aboriginal and Torres Strait Islander people today remain fearful and mistrusting of police. Furthermore, it is not difficult to see how these Government policies of the past have directly or indirectly contributed to any of the problems besetting Aboriginal and Torres Strait Islander communities today.

139    At [5.141], the review noted that watchhouse facilities on Palm Island did not comply with national standards for custodial facilities.

140    The applicants attached large excerpts from the RCIADIC report’s findings and recommendations to the third further amended statement of claim. Their pleadings placed particular emphasis on the following recommendations of the RCIADIC:

Recommendation 19:

That immediate notification of death of an Aboriginal person be given to the family of the deceased and, if others were nominated by the deceased as persons to be contacted in the event of emergency, to such persons so nominated. Notification should be the responsibility of the custodial institution in which the death occurred; notification, wherever possible, should be made in person, preferably by an Aboriginal person known to those being so notified. At all times notification should be given in a sensitive manner respecting the culture and interests of the persons being notified and the entitlement of such persons to full and frank reporting of such circumstances of the death as are known.

Recommendation 20:

That the appropriate Aboriginal Legal Service be notified immediately of any Aboriginal death in custody.

Recommendation 33:

That all officers involved in the investigation of a death in police custody be selected from an Internal Affairs Unit or from a police command area other than that in which the death occurred and in every respect should be as independent as possible from police officers concerned with matters under investigation. Police officers who were on duty during the time of last detention of a person who died in custody should take no part in the investigation into that death save as witnesses or, where necessary, for the purpose of preserving the scene of death.

Recommendation 35(a):

a.    Investigations should be approached on the basis that the death may be a homicide. Suicide should never be presumed;

Recommendation 60:

That Police Services take all possible steps to eliminate:

a.    Violent or rough treatment or verbal abuse of Aboriginal persons including women and young people, by police officers; and

b.    The use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers.

When such conduct is found to have occurred, it should be treated as a serious breach of discipline.

Recommendation 61:

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities.

Recommendation 87(a):

That:

a.    All Police Services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders;

141    The applicants also referred to recommendations 210, 214, 215, 225 and 228, all of which relate to an increased emphasis on culturally appropriate and sensitive policing practices in Aboriginal communities, developed in consultation with members of the Aboriginal community.

142    Despite these references in the third further amended statement of claim, the applicants’ final submissions make comparatively few substantive submissions by reference to the RCIADIC and its recommendations. The principal submission seems to be that QPS officers could, and should, have been aware in November 2004 that Palm Island community members knew of the RCIADIC and its recommendations and this was a feature of their relationship with police. It seems also to be the applicants’ submission that the way the investigation into Mulrunji’s death was conducted paid insufficient regard to the RCIADIC’s recommendations and observations. For example, the applicants’ written submissions relied on the following observations at [1.2.4] and [3.1.2] of the RCIADIC report:

Deaths in custody are particularly distressing for families and friends, and engender suspicion and doubt in their minds and also in the minds of members of the public. The deceased person has been in the custody and care of the State, not accessible in the general sense, his or her life controlled and ordered by functionaries of the State, out of sight and of normal contact. Deaths in such circumstances breeds anguish and suspicion equally. Time may heal some of the anguish, but the suspicion can be allayed only by the most open and thorough going laying of the facts on the table.

As has been said earlier, there was a widely held suspicion amongst Aboriginal people, and others, that at the very least a number of the deaths were caused by foul play in the sense of the deliberate infliction of harm by custodians. This has turned out not to be the case. But it needs to be understood that this perception was not at all unreasonable for at least three quite separate reasons: firstly, custody by its nature being away from the public gaze and out of the range of family and friends, the circumstances are such as to easily lead to suspicion and doubt; secondly, the deep distrust grounded in history that Aboriginal people have for police and prison systems; and thirdly, the post-death investigations and the treatment of families were in not a few cases such as to raise suspicion rather than allay it.

143    I have found that the QPS officers who gave evidence in this proceeding had little knowledge of, or insight into, the history of Palm Island, nor did they have more than superficial knowledge of the RCIADIC’s recommendations. The QPS officers who gave evidence disclosed no awareness of the matters I have set out from the 1994 QPS review. Had there been such awareness, the obvious manifestation of it would have been more meaningful interaction and consultation with the Palm Island community in the days and weeks after Mulrunji’s death, through active participation at public meetings and greater flows of information between police, the Council and the general community. Needless to say, any real awareness of the context made so plain in the Queensland government’s 1994 review would have led to quite different behaviour from QPS officers during the early days of the investigation into Mulrunji’s death. The lack of impartiality (in appearance and in fact) that I have found existed could not have occurred if QPS officers had any real understanding of those issues and applied that understanding to the way they behaved.

144    These matters are relatively clear on the evidence before the Court. Beyond providing a contextual basis for findings of this kind, I do not need to give any closer consideration to the RCIADIC report or its recommendations.

SUMMARY OF STATE LEGISLATION, REGULATIONS, INSTRUMENTS, POLICIES AND PROCEDURES APPLICABLE TO THE QUEENSLAND POLICE SERVICE

The role of state legislation, instruments and policies in the applicants’ case

145    Almost all of the applicants’ case involves allegations of non-compliance by QPS officers with Queensland law. In some circumstances, it is alleged that police conduct was unlawful by failure to comply with the general law, or statute law (or both); in other circumstances, it is alleged that police conduct failed to comply with a policy or procedure which may or may not render the police conduct unlawful. The effect of non-compliance with a policy or procedure was said to depend on the status of the policy or procedure within the internal hierarchy established in the Operational Procedures Manual. Nevertheless, the fact of non-compliance (even if it did not render the conduct unlawful) was said by the applicants to be significant for the purpose of establishing a contravention of s 9 of the RDA.

146    A state law cannot authorise conduct which contravenes s 9 of the RDA. Insofar as the state law had such an effect, it would be invalid by reason of the operation of s 109 of the Constitution: see Gerhardy v Brown [1985] HCA 11; 159 CLR 70 at 92-93 (Mason J), 121 (Brennan J). In the present case, no argument of this kind was made by the applicants about any of the state laws they identified as imposing duties on QPS officers.

147    Conversely, in Sharma v Legal Aid Queensland [2001] FCA 1699; 112 IR 124 at [27] Kiefel J observed that neither lawfulness, nor unlawfulness, would of themselves foreclose or establish a contravention of s 9:

A substantial part of the applicant’s case was taken up with questions as to whether the panel had followed policy guidelines regarding appointments and whether what they said was required in the position could be found in the description given of it. If the applicant had fulfilled the criteria specified and guidelines had not been followed, questions might arise as to the approach being taken by the panel. It is necessary to bear in mind however that this is not a case involving the application of principles of employment contract law, or procedural fairness. Breaches of this kind do not themselves answer the question whether race operated as a factor in the appointment process. By the same token compliance will not foreclose the possibility that considerations of race were influential in some way. The inquiry is as to what was truly in the minds of the panel members. I turn then to consider the explanations they have put forward.

148    Subject to what I say at [150] below, as Kiefel J suggested, questions of the lawfulness or unlawfulness of conduct according to domestic law do not engage with the question posed by s 9.

149    However, the applicants sought to use the alleged unlawfulness of various conduct by QPS officers to contend that the conduct involved a “distinction” for the purposes of s 9. That is, the “distinction” is said to be non-compliance with the law, or non-compliance with obligations imposed under the law. That conduct involving such non-compliance is then alleged to be based on the race of the applicants, including the group members. Sometimes this is put as being based on the Palm Island community as an Aboriginal community, that is: a community defined by its race.

150    In relation to some of the acts relied upon, the lawfulness (or, on the applicants’ case, the unlawfulness) of QPS conduct is said to form part of the necessary content of the human right relied on. Thus, for example, the right in Art 9 of the ICCPR to be free from arbitrary or unlawful arrest is said by the applicants to be impaired where, in their submission, Mr Wotton was subjected to an arrest which was unlawful under Queensland law. In these kinds of examples, the “act” for the purposes of s 9 is the arrest; it is said to involve a “distinction based on race” because the arrest was made unlawfully by reference to the race of Mr Wotton; and that arrest is said to have impaired his human right under Art 9 to be free from arbitrary or unlawful arrest. It can be seen that, in examples of this kind from the applicants’ pleaded case, the unlawfulness of the arrest is said to be capable of fulfilling two functions within the terms of s 9 in that it constitutes both the “distinction” and the “impairment” of a right. Nevertheless, the applicants are correct to identify lawfulness (and unlawfulness) as central to the nullification or impairment of some of the human rights upon which they rely. In relation to the arrests, entries and searches by SERT officers, lawfulness does have a role to play in determining a contravention of s 9.

151    It is necessary, then, to give an outline of the Queensland law applicable to the conduct of the QPS officers during the series of events impugned by the applicants. With a few exceptions (such as the arrest of Mr Wotton) there was no dispute between the parties about the applicable law.

The Police Service Administration Act 1990 (Qld) (PSA Act)

152    Section 2.3 of the PSA Act, as it was in November 2004, set out the functions of the QPS. I have set out extracts already, but it should be reproduced in its entirety:

Functions of service

The functions of the police service are—

(a)    the preservation of peace and good order—

(i)    in all areas of the State; and

(ii)    in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands;

(b)    the protection of all communities in the State and all members thereof—

(i)    from unlawful disruption of peace and good order that results, or is likely to result, from—

(A)    actions of criminal offenders;

(B)     actions or omissions of other persons;

(ii)    from commission of offences against the law generally;

(c)    the prevention of crime;

(d)    the detection of offenders and bringing of offenders to justice;

(e)    the upholding of the law generally;

(f)    the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of—

(i)    the provisions of the Criminal Code;

(ii)    the provisions of all other Acts or laws for the time being committed to the responsibility of the service;

(iii)    the powers, duties and discretions prescribed for officers by any Act;

(g)    the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are—

(i)    required of officers under any Act or law or the reasonable expectations of the community; or

(ii)    reasonably sought of officers by members of the community.

The Operational Procedures Manual (OPM)

153    Pursuant to subss 4.8(1) and (2) of the PSA Act, the Commissioner of Police is responsible for the efficient and proper administration, management and functioning of the QPS in accordance with law. In discharging these prescribed responsibilities under the PSA Act, the Commissioner is authorised to give, and cause to be issued, such written and oral directions to QPS employees that the Commissioner considers necessary or convenient for the efficient and proper functioning of the QPS: see s 4.9(1). The principal source of the Commissioner’s directions is the QPS Operational Procedures Manual (OPM). The objective of the OPM is said to be to provide guidance and instructions in all aspects of operational policing.

154    In November 2004, Issue 24 – July 2004 of the OPM was in force. Issue 24 of the OPM set out three levels of directions by the Commissioner to QPS members: orders, policies and procedures. These terms were defined at p 6 of the document as follows:

ORDER

[A]n 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.

155    While the parties agree that orders must be complied with, they differed on the force and effect of policies and procedures, although in my opinion the difference was really one of emphasis rather than any legal or practical effect. The applicants emphasised (and pleaded) that, in November 2004, the QPS “ordinarily complied” with the policies and procedures of the OPM, and any departure would occur only in extraordinary circumstances. In contrast, the respondents emphasised the non-binding nature of these two kinds of directions, and that each left room for departure in appropriate circumstances.

156    Although, as I set out at [725]-[739] below, I consider the aspect of the applicants’ approach to s 9 whereby they argue that individual contraventions of the OPM can constitute distinctions for the purposes of s 9 to be misconceived, that does not render the terms of the OPM irrelevant. I accept the orders, policies and procedures provide a framework within which QPS officers are expected to operate. Therefore, the subject matter dealt with in the OPM, and the standard of compliance required, assists in putting the impugned conduct of QPS officers into an appropriate context.

157    Working sequentially through the OPM, the following provisions should be noted.

158    The parties agreed that s 1.17 of the OPM is relevant to these proceedings. That section was headed “Fatalities or serious injuries resulting from incidents involving members (Police related incidents)” and provided directions in the form of orders and policies to follow when a “police related incident” occurs. The parties agreed Mulrunjis death in custody fell within the definition of a “police related incident in this provision. Section 1.17 contained generally applicable directions, directions applicable to multiple members of the QPS, and directions for individual members holding specific positions.

159    Section 1.17 contained an order that investigations of police related incidents be conducted “expeditiously and impartially with the psychological welfare of individuals considered.

160    It also relevantly provided the following policies applicable to first response officers, regional duty officers and regional crime coordinators under the heading Integrity of investigation:

First response officers, regional duty officers and regional crime coordinators should ensure that the integrity of the 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.

161    Section 1.17 assigned specific responsibilities to first response officers, in the form of orders. When a police related incident occurred, the first response officer was 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

(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.

162    Section 1.17 imposed orders on the regional duty officer who was notified or who became aware of such an incident. Relevantly, the regional duty officer was directed to:

(i)    attend the scene, make an immediate assessment of the situation and make brief inquiries with persons at the scene, including members directly involved in the incident or who may be witnesses to the incident, as to the circumstances surrounding the incident;

(ii)    assume command and control of the situation pending the arrival or involvement of the regional crime coordinator;

(iv)    cause the following officers or units to be immediately notified:

(h)    the Deputy Commissioner, Deputy Chief Executive (Operations);

(v)    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; and

(vi)    wherever practicable ensure that members involved in the incident or who are witnesses to the incident are available for interview by the regional crime coordinator, officers from the Crime and Misconduct Commission or the Internal Investigation Branch, Ethical Standards Command, as the circumstances require.

163    The regional crime coordinator was assigned specific responsibilities under s 1.17. There was an order that:

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.

164    A policy in s 1.17 concerning the role of the regional crime coordinator provided:

When investigating police related incidents, a regional crime coordinator should contact 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.

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.

165    Further, under the heading “Regional crime coordinator”, there were orders that relevantly provided that the regional crime coordinator was 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;

(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 ensure that where necessary the provisions of ss. 16.24 to 16.24.5 ... are complied with.

166    Section 2.5 of the OPM was headed “Investigation” and s 2.5.1 relevantly set out the following matters in relation to investigations:

POLICY

The investigation of offences and the management of incidents requiring police action are dependent on timely, accurate information being passed to investigating officers. Officers collecting such information should investigate the facts and circumstances as completely as possible in order to obtain relevant, usable information. Investigating officers who consider the assignment of an operation name to an investigation is appropriate should contact the District Intelligence Officer for that purpose.

To ensure investigations are conducted in a professional manner, members should cooperate to allow the effective use of resources and to achieve desirable outcomes which reflect the needs and expectations of the community.

In all investigations, officers should strictly adhere to first response procedures. The incident scene should be preserved and contained until the arrival of any specialists. Even so, primary investigation techniques should be followed in order to ensure that potential witnesses are identified and that complete information is obtained.

PROCEDURE

It is critical that primary investigations be carried out as completely as possible. Wherever possible, primary investigations should be undertaken by the first response officer.

Activities undertaken during primary investigations may include:

(i)    identification of witnesses;

(ii)    identification of potential witnesses;

(iii)    interview of available witnesses;

(iv)    taking of statements from witnesses (suitable for court production);

(v)    collection and appropriate marking, recording and handling of physical evidence;

(vi)    listing observations made at the scene;

(vii)    noting geographic factors;

(viii)    noting demographic factors if appropriate;

(ix)    noting vehicles at the scene;

(x)    complete descriptions of offenders or suspects;

(xi)    complete descriptions of offender's or suspect's vehicles;

(xii)    complete description of the scene;

(xiii)    identifying and notifying appropriate support groups;

(xiv)    notifying appropriate specialist groups;

(xv)    notifying the commissioned duty officer;

(xvi)    arranging for necessary inquiries to be conducted by other members; and

(xvii)    recording of all activities undertaken and their outcomes.

Information obtained during the primary investigation will assist in the decision regarding the priority to be given to the investigation. Primary investigators should make recommendations in criminal offence reports for the information of supervisors.

167    Section 2.5.3 provided:

Investigation and the community

POLICY

Police investigations often include contact with members of the public who have been adversely effected by criminal activity or other major personal trauma. The attitude of officers carrying out investigations is critical to how the Service is perceived by the community. Officers should therefore demonstrate professional behaviour at all times. Officers should refer to s. 2.12: ‘Victims of crime’ of this chapter.

168    The OPM contained provisions relevant to the deployment and operations of the SERT. Section 2.26, headed “Special Emergency Response Team (SERT)”, provided:

2.26.1    Role of Special Emergency Response Team (SERT)

The Special Emergency Response Team (SERT) is a specialist support unit, established to provide the Service with the ability to respond to terrorist incidents state-wide.

The primary role of the SERT is to:

(i)    respond to terrorist incidents within the arrangements agreed to under the State Antiterrorist Plan;

(ii)    provid [sic] specialist police capability to resolve high risk situations and incidents which are potentially violent and exceed normal police capabilities;

(iii)    provide assistance to all police with low risk tasks which require specialist equipment, skills or tactics; and

(iv)    provide a rescue function in incidents which require specialised recovery techniques.

The primary unit of SERT is based in Brisbane and is under the direct control of the Inspector, SERT. SERT officers are also located at Cairns under the management of the Chief Superintendent, Operations Coordinator, Far Northern Region.

Activation and deployment of SERT, including SERT officers at Cairns, and operational control and coordination is retained by the Superintendent, Specialist Services Branch.

Whenever SERT Officers at Cairns are activated and or deployed, the Chief Superintendent, Operations Coordinator, Far Northern Region is to be advised by the Superintendent, Specialist Services Branch.

2.26.2    Authorisation of call out of the Special Emergency Response Team (SERT)

ORDER

The authority of the Deputy Commissioner, Deputy Chief Executive (Operations), is required for the deployment of the Special Emergency Response Team (SERT) in all high risk situations.

In the absence of the Deputy Commissioner, Deputy Chief Executive (Operations), the authority for deployment of the SERT may be given by the Assistant Commissioner, Operations Support Command.

In the event that an immediate response is required by the SERT to a high risk situation, the Superintendent, Specialist Services Branch, can:

(i)    activate the SERT to a suitable staging area in preparation for deployment to a high risk situation;

(ii)    authorise the assistance of a SERT response to rescue functions; and

(iii)    activate the SERT to perform low risk tasks.

2.26.3    Call out procedure

Officers should note that response time depends on the availability of Service aircraft and/or commercial flights. If road travel is used, normal travelling times will apply.

PROCEDURE

An officer who considers that the services of SERT may be required for non-urgent operations should advise the Regional Duty Officer or other Commissioned Officer.

Upon receipt of such advice, the relevant commissioned officer should assess the situation. If they decide the assistance of SERT is required, they should ensure, in the order listed, that:

(i)    a Special Emergency Response Team Request for Assistance form (QP377) is completed;

(ii)    their Chief Superintendent, Operations Co-ordinator is advised of the intended request;

(iii)    the Superintendent, Specialist Services Branch (SSB), is advised of the request by phone (the Superintendent, SSB, can be contacted by phone 24 hours a day. The contact number for this officer is available from the Duty Officer, Police Communications Centre, Brisbane);

(iv)    the QP377 is faxed to the Superintendent, SSB; and

(v)    the original of the QP377 is forwarded to the Superintendent, SSB, via the QPS internal mail system.

169    Section 2.13.1 of the OPM contained the following policy about taking statements:

Statements form a written version of the oral testimony of a witness and therefore should be as comprehensive as possible.

Statements should be obtained at the earliest practicable opportunity ... In appropriate situations statements should be obtained and should be accepted from suspects/offenders.

170    In relation to contemporaneous notes, s 2.13.8 of the OPM 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.

171    The applicants relied on the provisions of the OPM dealing with interviewees and witnesses with special needs. Section 6.3.2 imposed the following order:

When an officer wishes to interview a person, the officer is to first establish whether a special need exists ... 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.

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 ...;

(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.

172    In s 6.3.6, a policy was set out to the effect that persons of Aboriginal and Torres Strait Islander descent are to be considered people with special needs because of certain cultural and sociological conditions.

173    The OPM also provided instructions on specialised areas of policing relevant to this proceeding. For example, s 6.4 of the OPM concerned cross-cultural issues relevant to policing in culturally diverse communities. Relevantly, it provided the following policy:

To achieve the goals of the Service, strategies emphasising joint community and police activities have been adopted.

Officers should always consider cultural needs which exist within the community.

174    Section 6.4.7 provided a specific policy for officers in charge of stations:

Officers in charge of stations or establishments should, in managing the provision of services, take into account the specific cultural and ethnic demographic characteristics of their area of responsibility and the needs thereby created.

175    The terms “cultural needs” and “cultural and ethnic demographic characteristics” are not defined, and what is meant by these phrases is opaque. The applicants’ pleadings and submissions repeatedly press a contention that the QPS failed to appreciate or recognise the “cultural needs” of the Palm Island community, but they give no real content to the phrase. The respondents are correct to criticise this aspect of the applicants’ case.

176    Section 6.4.8 of the OPM was headed Cross Cultural Liaison Officers, and provided:

Cross cultural liaison officers are available in all regions. The role of a cross cultural liaison officer is to establish and maintain effective liaison between police, Aboriginal, Torres Strait Islander and ethnic communities to identify the needs of communities and enable appropriate policies and strategies to be developed to ensure the delivery of an equitable service within the district or region.

The principal responsibilities of cross cultural liaison officers include:

(i)    managing and coordinating cultural support activities in line with Service policy;

(ii)    developing and maintaining effective communication with Aboriginal/Torres Strait Islander and ethnic community representatives, colleagues and representatives of government departments and external agencies;

(iii)    developing and presenting community based policing programs in line with service policy; and

(iv)    providing operational support particularly in the investigation of crime in ethnic, Aboriginal and Torres Strait Islander communities.

177    Section 8.4 of the OPM dealt with reportable deaths, including deaths in custody. By s 8.4.1, QPS officers were ordered to assist the coroner involved in investigating a death in custody:

Officers are to assist coroners in the performance of a function, or exercise of a power, under the Coroners Act and are to comply with every reasonable and lawful request, or direction of a coroner.

178    The duty to assist the coroner also had a legislative basis: see s 447A of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act).

179    It was agreed between the parties that s 8.4.3 of the OPM, headed “Responsibilities of investigating officers” applied to the QPS investigation team investigating Mulrunji’s death and to Inspector Williams of the Ethical Standards Command. It relevantly provided:

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:

(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;

(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 Coroners Police Support Unit ...

(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;

(ix)    where an inquest is to be held, ensuring that the following forms have been completed as fully as possible and copies are available for submission to the coroner in compliance with s. 8.4.20 Statutory forms of this chapter:

(a)    Form 1; ...

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.

180    There was no dispute that s 8.4.8 headed “Completion of Form 1” – applied to the completion of the Form 1 in relation to Mulrunji’s death. It provided procedures that:

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.

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).

181    Section 16.24.1 of the OPM, which was headed “Investigation of death in custody”, relevantly provided:

A death in custody should be treated as a significant event, and the provisions of s. 1.4.6: ‘Regional Duty Officer’ and s. 1.4.7: ‘Shift Supervisor’ of this Manual apply. The first response or investigating officer as the case may be should notify the:

(i)    shift supervisor;

(ii)    regional duty officer;

(iv)    Officer in Charge, Cultural Advisory Unit, Office of the Commissioner.

Where the Officer in Charge, Cultural Advisory Unit, Office of the Commissioner, is to be notified, such notification should include the information outlined in parts (i) to (xiii) of s.16.24.3: ‘Additional responsibilities of officers investigating deaths in custody’ of this chapter where available.

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 s. 1.17: ‘Fatalities or serious injuries resulting from incidents involving members (Police related incidents)’ of this Manual.

Where responsibility for the investigation of a death in custody 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, the investigation should be carried out in line with the provisions of s. 2.4: ‘Crime scene’, s. 2.5: ‘Investigation’ and Chapter 8: ‘Coronial Matters’ of this Manual.

182    Section 16.24.3 of the OPM relevantly set out “additional responsibilities in relation to the investigation of a death in custody:

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 ... that commissioned officer should, as part of the investigation:

(ii)    not presume suicide or natural death regardless of whether it may appear likely;

(iii)    obtain statements from all witnesses, including police officers, as soon as practicable after the incident and prior to any debriefing session where practicable;

(iv)    include investigations into the general care, treatment and supervision of the deceased immediately before the death in line with Service policy, orders and procedures;

(v)    inquire fully into the circumstances of the arrest or apprehension including any relevant activities of the deceased beforehand;

(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;

(viii)    if the deceased is an Aborigine or Torres Strait Islander, advise the Aboriginal and Torres Strait Islander Legal Service or other Aboriginal and Torres Strait Island community organisation with responsibility for the area, as soon as possible, whether or not the relatives have been located;

See also Chapter 8: ‘Coronial Matters’ and Appendix 16.4: Suggested format for reports on death in custody or in police company’ of this Manual.

The QPS Code of Conduct

183    Another relevant source of instructions for QPS officers is the QPS Code of Conduct. The Code is another source of directions from the Commissioner under s 4.9 of the PSA Act. Section 15 of the Public Sector Ethics Act 1994 (Qld) provides that “[t]he chief executive officer of a public sector entity must ensure that a code of conduct is prepared for the entity. The stated purpose of the Code is to provide all members of the QPS with a set of guiding principles and standards to assist them in determining acceptable standards of conduct. The Code makes clear that QPS officers are required to observe the Code as “a condition of appointment” and that a breach of the code without a valid reason will be dealt with in accordance with the applicable human resources complaint management procedures. In November 2004, the version of the Code dated 29 August 2003 was in force. Section 9.3 of the Code – headed “Obligation: Integrity” – provided that:

In recognition that public office involves a public trust, a public official should seek to maintain and enhance public confidence in the integrity of public administration and advance the common good of the community the official serves. Having regard to that obligation, a public official:

    should not improperly use his or her official powers or position, or allow them to be improperly used;

    should ensure that any conflict that may arise between the officials personal interests and official duties is resolved in favour of the public interest; and

    should disclose fraud, corruption, misconduct and maladministration of which the official becomes aware

184    Section 10.6 of the Code – headed Conflict of Interests” – is also relevant to the applicants’ allegations. It provided:

Members of the service are expected to perform their duties in such a manner that public confidence and trust in the integrity, objectivity and impartiality of the Queensland Police Service and its members is preserved.

Further, members are to ensure as far as practicable there is no conflict between their personal interests and the impartial fulfilment of their official duties and responsibilities.

Members are to avoid both actual or apparent conflicts of interests in all matters relating to their employment with the Service Where a conflict of interest does arise between the private interests of a member and the official duties or responsibilities of that member, the member is to disclose details of the conflict to their supervising Executive Officer. All conflicts of interests relating to a member’s employment with the Service will be resolved in favour of the Service and the public interest.

Emergency declaration powers

185    A significant aspect of the applicants’ challenges in this proceeding relates to the making of an emergency declaration under the PSP Act on 26 November 2004 after the protests and fires. That Act deals with two broad categories of events: “emergency situation[s]” and “chemical, biological and radiological emergencies”. Each category has its own suite of powers and procedures, although the Act has a much larger number of provisions dealing with the second category.

186    The evidence established, and it was not contested, that DI Webber made the emergency declaration. He relied on s 5 of the PSP Act. For the purposes of s 5(1), DI Webber was the “incident coordinator”. Section 5 of the PSP Act provided:

Declaration of emergency situation

(1)    Subject to section 6, if at any time a commissioned officer (the incident coordinator”) is satisfied on reasonable grounds that an emergency situation has arisen or is likely to arise the commissioned officer may declare that an emergency situation exists in respect of an area specified by the commissioned officer.

(2)    The incident coordinator, as soon as practicable after he or she declares that an emergency situation exists, shall issue a certificate to this effect signed by the incident coordinator which certificate shall set out the nature of the emergency situation, the time and date it was declared to exist and the area in respect of which it exists.

(3)    The declaration that an emergency situation exists shall continue until revoked by the incident coordinator.

(4)    However, if an emergency situation is later declared to be a CBR emergency, the declaration of the emergency situation has no effect for the period of the CBR emergency.

Note—

CBR emergencies may be declared under section 12.

(5)    The incident coordinator shall as soon as practicable thereafter, note the time and date of the revocation on the certificate issued pursuant to subsection (2).

(6)    The certificate issued in respect of an emergency situation shall be forwarded to the office of the Commissioner of the Police Service within 14 days of the revocation of the declaration of the emergency situation and shall be held in that office for a period of at least 6 years.

(Footnotes omitted.)

187    The Dictionary to the PSP Act defined “emergency situation” as:

(a)    any explosion or fire; or

(b)    any oil or chemical spill; or

(c)    any escape of gas, radioactive material or flammable or combustible

liquids; or

(d)    any accident involving an aircraft, or a train, vessel or vehicle; or

(e)    any incident involving a bomb or other explosive device or a firearm or other weapon; or

(f)    any other accident;

that causes or may cause a danger of death, injury or distress to any person, a loss of or damage to any property or pollution of the environment, includes a situation arising from any report in respect of any of the matters referred to in paragraphs (a) to (f) which if proved to be correct would cause or may cause a danger of death, injury or distress to any person, a loss of or damage to any property or pollution of the environment.

188    Section 6 of the PSP Act deals with the potential overlap with the exercise of emergency powers under another state Act, namely the Disaster Management Act 2003 (Qld):

Disaster Management Act 2003

(1)    A declaration pursuant to section 5 shall not be made in respect of an emergency situation which is being dealt with under a disaster situation under the Disaster Management Act 2003.

(2)    A declaration pursuant to section 5 which is in force when a disaster situation is declared under the Disaster Management Act 2003, shall be revoked by the incident coordinator when the emergency situation can be effectively dealt with under that Act.

189    Section 13 of the Disaster Management Act defined “disaster” for the purposes of that Act:

(1)    A disaster is a serious disruption in a community, caused by the impact of an event, that requires a significant coordinated response by the State and other entities to help the community recover from the disruption.

(2)    In this section—

serious disruption means—

(a)    loss of human life, or illness or injury to humans; or

(b)    widespread or severe property loss or damage; or

(c)    widespread or severe damage to the environment.

190    I note both s 6 of the PSP Act and s 13 of the Disaster Management Act for the purpose of giving some context to the kinds of circumstances with which an emergency declaration under s 5 of the PSP Act is intended to deal.

191    Section 8 of the PSP Act authorises the exercise of certain coercive powers and is a critical provision in relation to some of the impugned QPS conduct:

8    Powers of incident coordinator

(1)    Where during the period of and in the area specified in respect of an emergency situation the incident coordinator is satisfied on reasonable grounds that it is necessary to effectively deal with that emergency situation he or she (and any other police officer acting on his or her instructions) may—

(a)    direct the owner or the person for the time being in charge or in control of any resource to surrender it and place it under the incident coordinator’s or police officer’s control (“resource surrender direction”);

(b)    take control of any resource, whether it is in the charge or control of any person or not;

(c)    in respect of any resource under the incident coordinator’s or police officer’s control, direct any person who is capable of operating that resource to operate it as directed by him or her (“resource operator direction”);

(d)    direct the evacuation and exclusion of any person or persons from any premises and for this purpose may remove or cause to be removed (using such force as is necessary for that purpose) any person who does not comply with a direction to evacuate or any person who enters, attempts to enter or is found in or on any premises in respect of which a direction for the exclusion of persons has been given;

(e)    close or cause to be closed to traffic and pedestrians, any road, street, motorway, private road, private way, service lane, footway, right of way, access way or other way or close any place to which members of the public have access whether on payment of a fee or otherwise;

(f)    enter or cause to be entered (using such force as is necessary for that purpose) any premises;

(g)    search or cause to be searched (using such force as is necessary for that purpose) any premises and anything found therein or thereon;

(h)    remove or cause to be removed from any premises (using such force as is necessary for that purpose) any animal or anything;

(i)    direct any person to assist him or her in the manner specified by him or her (“help direction”).

(2)    The incident coordinator or police officer must not give a resource operator direction or a help direction to a person if giving the direction would expose the person to imminent danger.

(3)    A person given a resource surrender direction, a resource operator direction or a help direction must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—40 penalty units or 1 year’s imprisonment.

192    Section 46 of the PSP Act provides for the granting of compensation to persons who claim to have suffered financial loss because of the use, damage or destruction of the property. The evidence reveals that several people whose houses were entered and searched did complain to DS Robinson in particular about damage to their houses as a result of the entry and search. There is no evidence that DS Robinson or any other QPS officer, including DI Webber, directed those people to the terms of s 46 of the PSP Act, or offered to assist them in making any compensation claims.

193    Section 47 concerns protection from liability for conduct done in the exercise of powers under the Act. The State placed no reliance on this provision and it was not referred to by either party. I do not consider it further.

Law governing arrests

194    In 2004, the law governing arrests was found in the PPR Act. Section 198 of that Act set out the circumstances in which arrests could be made without first obtaining a warrant. Relevantly, it provided:

(1)    It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons –

(a)    to prevent the continuation or repetition of an offence or the commission of another offence;

(b)    to make inquiries to establish the person's identity;

(c)    to ensure the person's appearance before a court;

(d)    to obtain or preserve evidence relating to the offence;

(e)    to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;

(f)    to prevent the fabrication of evidence;

(g)    to preserve the safety or welfare of any person, including the person arrested;

(h)    to prevent a person fleeing from a police officer or the location of an offence;

(i)    because the offence is an offence against section 444 or 445;

(j)    because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;

(k)    because of the nature and seriousness of the offence;

(l)    because the offence is

(i)    an offence against the Corrective Services Act 2000, section 103(3); or

(ii)    an offence to which the Corrective Services Act 2000, section 104 applies.

(2)    Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 7.

Relevant offence provisions

195    On 26 November 2004, reprint 4N of the Criminal Code Act 1899 (Qld) was in force and contained the Queensland Criminal Code at Sch 1. The Criminal Code contained a number of offences in relation to riots, with which various persons were charged after the events of 26 November 2004 on Palm Island.

196    Chapter 9 of the Criminal Code was headed “Unlawful Assemblies – Breaches of the Peace”. Section 61(1) defined an “unlawful assembly” as follows:

When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an “unlawful assembly”.

197    Section 61(2) provided that it was not necessary for persons to have a “common purpose” to be engaged in an unlawful assembly. Section 61(4) provided:

When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a “riot”, and the persons assembled are said to be “riotously assembled”.

198    “Disturb the peace” was not defined.

199    Section 62 prohibited unlawful assembly:

Punishment of unlawful assembly

(1)    Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for 1 year.

(2)    The offender may be, and it is hereby declared that the offender always was liable to be, arrested without warrant.

200    Section 63 prohibited taking part in a riot:

Punishment of riot

(1)    Any person who takes part in a riot is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

(2)    The offender may be, and it is hereby declared that the offender always was liable to be, arrested without warrant.

201    Section 64 created an offence of “Rioters remaining after proclamation ordering them to disperse”. It is therefore clear that the word “rioter” was used in the Criminal Code to refer to a person engaged in the act of rioting.

202    Section 65 provided:

Rioters demolishing buildings etc.

Any persons who, being riotously assembled together, unlawfully pull down or destroy, or begin to pull down or destroy—

(a)    any building whatever; or

(b)    any machinery whatever, whether fixed or moveable; or

(c)    any structure used in farming land, or in carrying on any trade or manufacture, or in conducting the business of a mine; or

(d)    any bridge, wagon-way, or trunk, for conveying materials from a mine;

are guilty of a crime, and each of them is liable to imprisonment for life.

203    In these reasons, I refer to the offence created by s 65 as “rioting with destruction”.

204    Section 66 provided:

Rioters injuring building, machinery etc.

Any persons who, being riotously assembled together, unlawfully damage any of the things in section 65 mentioned, are guilty of a crime, and each of them is liable to imprisonment for 7 years.

205    In these reasons, I refer to the offence created by s 66 as “rioting with damage”.

206    Sections 261 to 265 provided for circumstances in which it was lawful for a person to suppress a riot, but those provisions are not material for present purposes. Sections 201 and 202 respectively created offences of officers neglecting to suppress a riot and any person neglecting to aid in suppressing a riot, but they also are not material.

207    Section 398 of the Criminal Code prohibited stealing and contained a number of sub-points for punishment in special cases, sub-point 13 of which relevantly prohibited stealing by looting in civil unrest:

Stealing by looting

If—

(a)    the offence is committed during a natural disaster, civil unrest or an industrial dispute; or

(b)    the thing stolen is left unattended by the death or incapacity of the person in possession of the property;

the offender is liable to imprisonment for 10 years.

208    Section 419 prohibited burglary, including entering a dwelling with intent to commit an indictable offence and entering a dwelling and committing an indictable offence:

Burglary

(1)    Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.

Maximum penalty—14 years imprisonment.

(2)    If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.

(3)    If—

(a)    the offence is committed in the night; or

(b)    the offender—

(i)    uses or threatens to use actual violence; or

(ii)    is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance; or

(iii)    is in company with 1 or more persons; or

(iv)    damages, or threatens or attempts to damage, any property;

the offender is liable to imprisonment for life.

(4)    Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.

Maximum penalty—imprisonment for life.

209    Section 461 prohibited arson:

Arson

Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—

(a)    any building or structure whatever, whether completed or not;

(b)    any vessel, whether completed or not;

(c)    any stack of cultivated vegetable produce, or of mineral or vegetable fuel;

(d)    a mine, or the workings, fittings, or appliances of a mine;

(e)    any aircraft or motor vehicle;

is guilty of a crime, and is liable to imprisonment for life.

210    Section 469 prohibited wilful damage of property:

Wilful damage

Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.

211    All of these offence provisions are relevant to the arrests and charges laid against individuals which followed the protests and fires on 26 November 2004 on Palm Island.

A DEATH IN CUSTODY

212    In this part of my reasons I set out the sequence of events concerning how Mulrunji came to be in police custody on 19 November 2004, what happened to him once he was in custody on 19 November 2004, and the series of events that then unfolded on Palm Island through to approximately 28 November 2004, which is the point at which the applicants’ allegations of racial discrimination cease in a chronological sense. Aspects of this sequence have been the subject of findings in other proceedings, and it is no part of the Court’s task here to revisit those findings, nor, through the guise of allegations under s 9 of the RDA, to call into question findings made by other persons and bodies, for other purposes. If it is necessary to go over, and make findings about, factual matters which have been the subject of previous findings, that task is undertaken as part of this Court’s exercise of jurisdiction to determine whether the applicants have made out their allegations of contraventions of s 9 of the RDA.

213    This part of my reasons is based on the parties’ second amended agreed statement of facts, filed by the parties towards the end of the trial, and on what I understand to be either uncontentious, or unchallenged, evidence. There was a considerable body of evidence about which the respondents in particular made no final submissions, other than generalised submissions that evidence was irrelevant or not probative. Contested factual issues relevant to the applicants’ s 9 claims are dealt with in the Resolution section of these reasons.

214    On the morning of 19 November 2004, Mulrunji was walking down Dee Street on Palm Island. Dee Street was one of the places the Court visited on the view of Palm Island undertaken during the trial. It is an ordinary suburban street, with houses on both sides. It is a short walk from the mall area and the police station. There were people out and about, including Ms Gladys Nugent, who would later give an account of what she saw. The evidence of Ms Nugent, and the preliminary autopsy report that would be completed four days later, suggest Mulrunji was affected by alcohol that morning.

215    SS Hurley and PLO Bengaroo were in a police van, which had a locked cabin area in the back of it. They were in Dee Street at the request of Ms Nugent. She claimed to have been assaulted earlier that morning by her partner, Mr Roy Bramwell, and she had asked the police to escort her to the Bramwell house in Dee Street so she could collect her diabetes medication. In an interview with investigating officers later that day, SS Hurley stated that when they arrived at the house Mr Patrick Bramwell, Roy Bramwell’s nephew, was intoxicated and called out abuse to SS Hurley. SS Hurley arrested him for public nuisance and placed him in the back of the police van.

216    Mulrunji was present as SS Hurley was arresting Patrick Bramwell. He called out to SS Hurley and PLO Bengaroo. I return to the evidence about what Mulrunji said in more detail later in these reasons. SS Hurley arrested Mulrunji and placed him in the locked area of the police van with Patrick Bramwell. The basis for the arrest was later said to be that Mulrunji had committed public nuisance by what he said to SS Hurley and PLO Bengaroo.

217    SS Hurley drove the police van to the Palm Island Police Station on Main Street. He parked the van in the back of the police station, where there was a partially covered parking area, which was open to the lane behind the police station. This lane is called Police Lane. Ms Penny Sibley was standing in the lane and saw Mulrunji and Patrick Bramwell being taken out of the back of the police van, as she described to the investigating officers two days later. SS Hurley removed Mulrunji from the police van and a struggle ensued.

218    At the time SS Hurley removed Mulrunji from the police van, Roy Bramwell was inside the police station. Constable Kristopher Steadman was standing at the front passenger’s side of the police van in a position where he was able to see, and did see, some of the events that occurred after SS Hurley removed Mulrunji from the police van to the time when they entered through the door of the Police Station.

219    Sergeant Michael Leafe and PLO Bengaroo were also present in the vicinity of the police van.

220    There was a door into the police station from the garage where the police van was located. There was a step up into the police station from this area. On the way into the police station, Mulrunji and SS Hurley fell through the rear door of the police station as they were entering it. There are various accounts of how this fall occurred and what it involved, including accounts by SS Hurley and by Mr Bramwell.

221    Whatever occurred, Mulrunji ended up on the floor of the police station, in a corridor leading to the cells, with his head facing towards the cells and his feet facing towards the door he and SS Hurley had entered through. The parties agree he was limp and unresponsive by this stage.

222    While in that state, Mulrunji was dragged by Sergeant Leafe and SS Hurley into a watchhouse cell. It was agreed that this occurred at approximately 10.26 am, being the time recorded in the police running sheet.

223    Patrick Bramwell was placed in the watchhouse cell with Mulrunji. The video footage of the two men while they were in the cell was in evidence before me. It was agreed that it was during this cell video footage that Mulrunji died. The time of his death was agreed to be approximately 11 am on 19 November 2004. I set out at [286] below what can be seen during the cell video until Sergeant Leafe, Constable Steadman and then SS Hurley all enter the cell upon Sergeant Leafe discovering that Mulrunji was not breathing. The time shown on the video footage was not accurate due to a power outage, but nevertheless it establishes that the period between the point at which the video starts (which was shortly after Mulrunji and Patrick Bramwell were placed in the cell) and the point at which Mulrunji is found not to be breathing is 44 minutes. Therefore, just under an hour elapsed between when Mulrunji was placed in the cell and when he was discovered not to be breathing.

224    An autopsy was carried out on the following Tuesday, 23 November 2004 and found the cause of Mulrunji’s death was intra-abdominal haemorrhage due to a ruptured liver and portal vein. Mulrunji had also sustained four broken ribs. It is clear he did not enter custody less than an hour earlier with those injuries.

225    At approximately 11.19 am on 19 November 2004, SS Hurley telephoned the Queensland Ambulance Service and asked them to attend an emergency at the watchhouse. SS Hurley then made several calls notifying various people of Mulrunji’s death. At approximately 11.23 am he telephoned Senior Sergeant Frank Jenkins at the Townsville District Police Communications Centre and advised that Mulrunji might be deceased. At approximately 11.30 am, he again called SS Jenkins and advised him that there had been a death in custody. At around the same time (the sequence of these calls is not clear) SS Hurley telephoned District Inspector Gregory Strohfeldt and advised him of the death in custody. Inspector Strohfeldt was also told about Mulrunji’s death by SS Jenkins shortly thereafter.     

226    Approximately 15 minutes later (at approximately 11.45 am) SS Hurley telephoned Detective Sergeant Darren Robinson, who was stationed on Palm Island but temporarily in Townsville, and told him about Mulrunji’s death. SS Hurley was at this time DS Robinson’s superior officer. DS Robinson was the second most senior officer on Palm Island at the time, and had been stationed on the island for two years. SS Hurley had also been stationed on the island for approximately two years and, as the Officer in Charge on Palm Island, he was also in charge of the watchhouse and the cells at this time.

GENERAL NARRATIVE OF EVENTS AFTER MULRUNJI’S DEATH

227    As in the preceding section, I have based my findings in this part of these reasons largely on the second amended agreed statement of facts, together with uncontentious or unchallenged aspects of the oral and documentary evidence where required.

Summary of officers involved in the events of 19 to 28 November 2004

228    It is necessary, first, to give a brief summary of the police officers mentioned in the evidence. The summary provides the rank and role of each officer as at November 2004, but quite a few of the officers have been promoted since that time. In the findings that follow, I use the rank of each officer as at November 2004 when addressing actions undertaken at that time, but when addressing the evidence given in this proceeding by certain of those officers I use their ranks at the time the evidence was taken (for the most part, in March 2016). Those officers who were called as witnesses are the subject of findings at [463] to [507] below. In relation to DS Robinson, who has left the police force, I have referred to him by the rank he held at the time of the events.

229    In November 2004, SS Hurley was the most senior QPS officer stationed on Palm Island. As such, he was the Officer in Charge of Palm Island Police Station, including its watchhouse and cells. DS Robinson was the Officer in Charge of the Criminal Investigation Branch (CIB) on Palm Island and he was the second most senior officer stationed on the island after SS Hurley. Sergeant Leafe was stationed on Palm Island under SS Hurleys command, as were Constable Steadman, Constable Benjamin Tonges, Constable Gene Poole and Constable Timothy Hooker, although Constables Poole and Hooker were not on Palm Island at the time of Mulrunjis death on 19 November 2004. PLO Bengaroo was also stationed on Palm Island.

230    Inspector Strohfeldt was the QPS officer to whom SS Hurley was directly responsible. He was stationed in Townsville and had held the position of District Inspector there since 29 March 2004. During his time as District Inspector, he had not been to Palm Island. However, as I note at [138] above, Inspector Strohfeldt was a member of the Steering Committee for the QPS review of policing in Aboriginal communities that highlighted the matters I have set out in that paragraph.

231    DI Webber was the regional crime coordinator for the Northern Region, which included Palm Island. In the course of the investigation into the death of Mulrunji between 19 and 24 November 2004, DI Webber was the commissioned officer responsible for the investigation for the purposes of s 1.17 of the OPM.

232    DSS Kitching was the Officer in Charge of the Townsville CIB. He travelled to Palm Island with DI Webber and DS Robinson on the day of Mulrunjis death, 19 November 2004. From then until 24 November 2004 he was the primary investigator into the death, under the supervision of DI Webber. DS Robinson also assisted with the investigation.

233    Inspector Williams was a member of the Ethical Standards Command of the QPS and, after arriving on Palm Island on 20 November 2004, he too participated in the investigation of Mulrunjis death. In the evidence, and in the other reports dealing with these events, Inspector Williams is sometimes identified as holding the rank of Detective Inspector. The weight of the evidence suggests, however, that it is correct to refer to him with the rank of Inspector, and that is the rank I propose to use.

234    Senior Sergeant Roger Whyte was the Officer in Charge of Deeragun Police Division, Townsville. On 22 November 2004, he became Officer in Charge of the Palm Island Police Station, replacing SS Hurley. However, SS Whyte performed that role under the command of Inspector Brian Richardson, who on 22 November 2004 was instructed by Acting Assistant Commissioner Roy Wall to take charge of overall policing on Palm Island. Inspector Richardsons role was to have overarching command and to liaise with the QPS hierarchy.

235    Inspector Glenn Kachel was the Professional Practices Manager for the QPS Northern Region and took over operational control of policing on Palm Island from Inspector Richardson after arriving on the island on the afternoon of 26 November 2004. Detective Sergeant Gary Campbell was stationed at the Townsville CIB and also travelled to Palm Island on 26 November 2004 to investigate possible offences committed during and after the protests and fires. Senior Sergeant David Dini was Officer in Charge of the Townsville Cross-Cultural Liaison Unit and also travelled to Palm Island on 26 November 2004.

236    Senior Sergeant Donald McKay was the Officer in Charge of the SERT unit for the QPS Far Northern Region. The SERT unit was based in Cairns and was made up of two teams. Acting Sergeant Rodney Kruger was acting leader of one of those teams. Constable Wade Folpp was a member of A/S Krugers team. Mr Folpp’s rank is not revealed in the evidence, but I have applied the rank of Constable when referring to him based on the applicants submissions. The respondents submissions do not mention Constable Folpp, but I have assumed that if this rank were incorrect the respondents would have identified the mistake.

237    Inspector Steven Underwood was from what was described in the evidence as the specialist services branch of the QPS. He arrived on Palm Island at approximately 7.30 pm on 26 November 2004 with the Public Safety Response Team (PSRT), of which he was the commanding officer. The function of PSRT was to protect public safety in instances of confrontation or violence. Inspector Underwood was also the most senior QPS officer to go on the operation that took place on 27 and 28 November 2004 and during the entries and searches he had command of both SERT and PSRT, although it would appear from the evidence that SS McKay had what I might describe as practical command over the SERT officers. It is fair to say there was very little evidence adduced by the respondents about the interrelationship between the roles of the numerous QPS officers.

Initial response to Mulrunjis death by officers on the mainland

238    At some time between approximately 11.40 am and 12 noon on 19 November 2004, Inspector Strohfeldt notified DI Webber of Mulrunjis death. At this stage, DI Webber was in Townsville, as was Inspector Strohfeldt.

239    Also between approximately 11.40 am and 12 noon on 19 November 2004, DI Webber appointed DSS Kitching as the primary investigator in the investigation into Mulrunjis death and, therefore, the “investigating officer” under the OPM. Sometime shortly thereafter, DI Webber also appointed DS Robinson to assist with the investigation. As I have noted above, DS Robinson was in Townsville on this day.

240    At 11.50 am, SS Jenkins advised Senior Sergeant Lilian Bensted, the Officer in Charge of the QPS Cultural Advisory Unit (CAU), of Mulrunjis death. SS Bensted advised SS Jenkins about the relevant sections of the OPM that would need to be complied with during the investigation. She also advised that it was necessary to contact the Aboriginal and Torres Strait Islander Legal Service (ATSILS) in relation to the death.

241    At approximately 12.10 pm the Ethical Standards Command was notified of the death in custody. Shortly after that time, DI Webber notified Detective Inspector Gil Aspinall, the Officer in Charge of the Coronial Support Unit in Brisbane, of Mulrunjis death. The State Coroner was then immediately notified of the death.

242    There is some evidence that, at approximately 1 pm, Mulrunjis partner, Tracey Twaddle, went to the Palm Island Police Station and inquired about Mulrunji. Ms Twaddle had been Mulrunjis partner for approximately 10 years. The evidence is not especially clear whether she went to the police station once or twice on that day. There was some cross-examination to the effect that Ms Twaddle went to the police station at 1 pm, and DI Webber agreed that he learned at some stage (whether on 19 November 2004 or otherwise was unclear) that she had been told effectively to go home. However, the CMC stated in its report (at p 124) that Ms Twaddle went to the police station at 11.30 am as well:

Some time after 11.30 am on 19 November 2004, Mulrunji’s partner, Tracey Twaddle, and her niece approached the police station, where an ambulance was in attendance. Her niece asked at the police station who the ambulance was for and was told it was for Chris Hurley. Tracey Twaddle returned to the police station sometime after 1 pm to ask when Mulrunji would be released. Hurley told her to come back at three o’clock and did not advise her of Mulrunji’s death.

243    At the end of his interview with investigating officers given later that afternoon, SS Hurley said that Mulrunjis family came up when he was in the cell and ah, you know I had to tell them to see us later on, but he did not state what time that occurred, nor who he meant by Mulrunji’s “family”, nor whether they came to the station more than once.

244    The only other relevant evidence in this proceeding comes from Mrs Agnes Wotton. She said:

Well, my daughter, she was very good friends with Cameron’s de facto, and she came and told me that, you know, We lost Cameron. And his de facto – her – yes, his de facto wanted to know what happened to him at that time, so I don’t know whether she got an answer around about 3 o’clock that day – that afternoon but she didn’t get it in the morning. She went down to the police station: What happened to Cameron?

245    On the evidence before me (having regard to the approach I take to the CMC report: see [118] above) I am not able to make any findings about whether Ms Twaddle went once or twice to the police station before she and Mulrunjis family were formally notified of his death later in the afternoon by DI Webber. However, based on the concession by DI Webber in cross-examination, the statement by SS Hurley in his record of interview, and Mrs Wottons evidence, I am prepared to find that Ms Twaddle went to the police station at least once, and was turned away by SS Hurley himself, without being told her partner had died.

Arrival of investigating officers on Palm Island

246    At approximately 2.20 pm, DI Webber, DSS Kitching and DS Robinson travelled to Palm Island by charter aircraft, accompanied by police technical support staff (Senior Sergeant Arthy, Constable Tibbey, Sergeant Bartulovich, two Constables and a Human Services Officer). The arrival of these officers on Palm Island meant SS Hurley was no longer the most senior police officer on the island. As regional crime coordinator, DI Webber was the officer in charge of DSS Kitching, although as I have noted DSS Kitching was the primary investigating officer in the investigation into Mulrunji’s death.

247    Palm Island airport is several kilometres from the area of the town where the mall, the Council offices, the police station and the police barracks were located in November 2004. Near the airport is one of the three main settlements on the island, which is known as Butler Bay.

248    SS Hurley and Sergeant Leafe met the arriving officers at the airport, bringing two vehicles to transport them and their support staff to the police station. Although neither Constable Steadman nor Constable Tonges were on duty at the time the officers arrived, the respondents did not dispute the contention that they could have been asked to transport the officers from the airport to the police station, but were not asked or directed to do so.

249    Instead, SS Hurley drove the officers back to the station. At that time, the investigating officers were not aware of any allegation that SS Hurley had assaulted Mulrunji. Allegations to that effect were subsequently made by Roy Bramwell and Penny Sibley, as I describe below. However, SS Hurley, DI Webber and DSS Kitching knew the types of matters required to be investigated following a death in custody, including the matters set out in s 16.24.3 of the OPM, which I have extracted at [182] above.

250    The settled part of Palm Island covers relatively confined areas on the island. It is a small community, with few roads. Anyone travelling in a vehicle around Palm Island is highly visible. It would also have been obvious to those officers that some members of the community were likely to see SS Hurley driving DI Webber and DSS Kitching from the airport to the police station. SS Hurley, having spent two years on the island by November 2004, would certainly have known himself how visible he would be driving the investigation team. Neither DI Webber nor SS Hurleys commanding officer Inspector Strohfeldt instructed SS Hurley not to discuss the circumstances surrounding the death in custody with other QPS officers.

251    What was said between SS Hurley and the investigating officers during this drive was the subject of some oral evidence by Inspector Kitching, to the effect that they engaged in minor conversation about what was going to transpire, but no conversation about Mulrunjis death. DI Webber gave evidence that there was some discussion of the possibility of “unrest or ill [will]” in the community. In the absence of more fulsome evidence about what occurred during that drive, I am not prepared to find that the extent of the conversation between the men in that vehicle was limited to what Inspector Kitching and DI Webber now recall. However, I am also not able on the evidence to make any positive findings about what was discussed.

252    The fact that SS Hurley went to the airport and drove the officers back to the police station is one of the events relied on by the applicants as demonstrating the lack of impartiality (both in fact and in appearance) in the investigation into Mulrunjis death.

Notification of next of kin

253    Shortly after DI Webber arrived on the island, he arranged to go to notify Mulrunjis next of kin that Mulrunji had died. The timing of this notification is impugned by the applicants as a contravention of s 9, and I return to it below. DI Webber took Mr Owen Marpoondin, who was at that time working for ATSILS, and Sergeant Leafe from the police station. Sergeant Leafe drove the police vehicle. They went first (at approximately 3.40 pm) to see Ms Twaddle to inform her of the death; then they went (at approximately 4 pm) to Mulrunjis mothers house to inform Mulrunji’s mother.

Interviews and re-enactments with witnesses

254    That same day, and while the next of kin were being notified, between approximately 4.04 pm and 4.36 pm DSS Kitching and DS Robinson interviewed SS Hurley. During the interview, SS Hurley gave an account of what had happened which included an allegation that Mulrunji had struck him in the face as SS Hurley was taking him out of the police van, and that SS Hurley had then grabbed hold of Mulrunji and a struggle had ensued, resulting in the two men falling through the door to the police station. SS Hurley told the investigators that he and Sergeant Leafe had then dragged Mulrunji into the cell and that he had noticed a small amount of blood coming from an injury above Mulrunjis right eye.

255    SS Hurley gave this description of the struggle and fall (H standing for SS Hurley and K standing for DSS Kitching):

H     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, Cameron DOOMADGEE 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 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 a 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

K    So you tripped over a step is that right

H    Over the step as we came in – there’s a step there

K    How did you manage to fall on the ground

H    I fell to the left of him and he was to the right of me

K    What caused you to fall

H    Just coming into the station I was trying to grab him and he was trying to get away

K    Oh OK

H    From there – ahh – Sergeant LEAFE had closed the back door of the ahh – wagon

K    Where was umm – Patrick BRAMWELL at that stage

H    I’m not sure – I’m not sure whether Sergeant LEAFE had brought him into the station or whether he was still outside

K    OK

H    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 – there was two mattresses there – he didn’t lie on any of the mattresses – he lay on the floor.

K    And when you said you got him out of the police vehicle – who assisted you [to] get him out of the police vehicle

H    Nobody

K    OK so you got him out by yourself

H    Yeah

K    OK and you said you had a struggle between the police vehicle and the wall of the police station

H    Yes

K    Ok umm – who assisted you to get him from the police vehicle to the police station

H    Nobody – I was the only one that was umm – wrestling with him

K    And you said as a result of the struggle you fell into the police station because of a step is that right

H    Yeah – I can only presume we fell over the step because when we were at the station I can remember that we were on the ground

K    OK – and who was assisting you then

H    Nobody – I stood up (ui) Michael LEAFE came and ahh – assisted me to drag him into the cell

K    When you fell to the ground inside the station there did you receive any injuries yourself

H    No – no but I had noticed his – you know that, I’ve been over that – just a tiny scratch on my arm there on the left hand arm there – probably from the ahh – the little wrestle that we had – that’s the only thing I can see

K    And you didn’t land on top of him

H    No I landed beside him on the ahh – on the ahh – what do you call it – the ahh lino

K    Did he ever complain of any medical injuries or

H    No

K    That he was aware of any injuries

H    I wasn’t, I wasn’t, I wasn’t able to ask him the questions because of his aggression and because of the fact we took him straight to the cell

256    SS Hurley said nothing about falling on top of Mulrunji, instead stating that he landed beside him. Nor did SS Hurley say anything about any heavy contact between himself and Mulrunji during the fall, nor anything about hitting Mulrunji himself.

257    After interviewing SS Hurley, over the next two and a half hours or so (between approximately 4.50 pm and 7.10 pm) DSS Kitching and DS Robinson interviewed a number of other people, in the following order: PLO Bengaroo; Gladys Nugent; and Patrick Bramwell.

258    Later that night (between approximately 7.50 pm and 8.12 pm) they interviewed Sergeant Leafe. He told them that, as SS Hurley was removing Mulrunji from the police vehicle, he had heard SS Hurley cry out that Mulrunji had hit him; that he had then seen SS Hurley scuffling with Mulrunji; and that a few seconds later, Mulrunji had been lying limp on the ground of the police station and had felt like a dead weight as Sergeant Leafe and SS Hurley dragged him into the cell.

259    A little later that evening (between approximately 8.22 pm and 8.35 pm) DSS Kitching and DS Robinson conducted a recorded interview with Edna Coolburra, who was a resident of Dee Street and saw Mulrunji being arrested by SS Hurley.

260    After the interviews had been completed for the evening, DI Webber, DSS Kitching and DS Robinson ate a meal with SS Hurley at SS Hurleys residence. The meal was prepared by DS Robinson. The men consumed a modest amount of beer. Sergeant Leafe and his wife (who was also a police officer) were present for part of this time. This event is another of the examples relied on by the applicants as demonstrating that the investigation lacked impartiality, both in fact and in appearance.

261    The next morning (20 November 2004), interviews began again. At approximately 8.15 am, DSS Kitching and DS Robinson conducted an interview with Roy Bramwell, an Aboriginal man who lived on Palm Island. DSS Kitching and DS Robinson had driven to Roy Bramwells house at approximately 8 am that morning to bring him to the station for an interview, having received information the previous day that he had been inside the police station when SS Hurley brought Mulrunji into the station. During his interview, Mr Bramwell alleged that he saw SS Hurley assault Mulrunji, including while Mulrunji was lying on the floor after SS Hurley knocked him down. Mr Bramwell is recorded (at p 7 of his record of interview) as saying:

They dragged him in Chris started punchin’ him just in the hall there, Chris started punchin’ him, you want more Mr Doomadgee, (ui). You want more Mr Doomadgee hey that’s enough for ya, just kept on going like that, Chris (ui) sat down and (ui) I seen Mr Doomadgee legs sticking up.

262    Shortly after the interview, DS Robinson prepared a typed statement for Mr Bramwell, which he subsequently signed. DS Robinson had been typing up statements for the other witness interviews as well, although there is no evidence before the Court that he prepared witness statements recording what SS Hurley and PLO Bengaroo said in their interviews. Transcripts of the interviews with SS Hurley and PLO Bengaroo were in evidence, however.

263    A little later in the morning (between 9.16 am and 9.25 am) DSS Kitching also interviewed Gerald Kidner, who stated that he had seen SS Hurley arrest Mulrunji in Dee Street the previous morning.

264    Inspector Williams arrived on Palm Island by plane about mid-morning on Saturday, 20 November 2004. The parties agreed a fact that it was Inspector Williams role to overview the investigation, as required by s 1.17 of the OPM and cl 7.2 of the Coroners Guidelines, although DI Webber retained responsibility for the investigation as regional crime coordinator, and DSS Kitching remained the principal investigator. It is correct that the OPM and the Coroners Guidelines use the verb overview but there was no real evidence or explanation before the Court about what this meant in practice. As I set out elsewhere in these reasons, it was the case that Inspector Williams took an active part in the interviews and re-enactments, and certainly did more than simply supervise or have other officers report to him.

265    DI Webber gave Inspector Williams a briefing, together with DSS Kitching and DS Robinson. Inspector Williams reviewed the interviews and witness statements which were then in existence.

266    At approximately 10.52 am on 20 November 2004, Inspector Williams and DI Webber conducted a video re-enactment with Roy Bramwell of the events surrounding Mulrunjis death, during which Mr Bramwell repeated his allegation that SS Hurley assaulted Mulrunji. This video re-enactment was in evidence before me, and was the best evidence before the Court of what the inside of the police station looked like at the time.

267    The same officers, together with DSS Kitching and Constable Tibbey, then visited the site of Mulrunjis arrest in Dee Street. SS Hurley drove the officers to and from Dee Street. Whilst at Dee Street, SS Hurley gave an account of what had occurred when he arrested Mulrunji. What occurred during this event was said by the applicants to contravene s 9 of the RDA in several ways, and I return to this in the Resolution section of these reasons. The officers did not take PLO Bengaroo with them, and so did not ask him to re-enact anything that happened during the arrest at Dee Street.

268    After the visit to Dee Street, Inspector Williams and DI Webber conducted video re-enactments with SS Hurley, PLO Bengaroo and Sergeant Leafe, between approximately 11.53 am and 1.12 pm. These re-enactments were in evidence before me.

269    It will be recalled that PLO Bengaroo had been with SS Hurley when Mulrunji was arrested in Dee Street and had travelled with SS Hurley in the police van to the police station. He had been present when SS Hurley took Mulrunji out of the van and brought him into the police station. In his re-enactment, PLO Bengaroo described seeing SS Hurley and Mulrunji go both together through the doorway of the police station. He was asked what was happening as they both went through the doorway and replied that they were both still struggling. When asked what happened then, PLO Bengaroo repeated that the men were struggling and then said they went down the hallway. Inspector Williams then asked whether anything had happened here (indicating an area just inside the doorway where SS Hurley had said the men fell). I infer that, given PLO Bengaroo had said nothing about any fall, Inspector Williams asked this because of what SS Hurley had said.

270    PLO Bengaroo did not answer Inspector Williams directly. He shifted around, looking downwards and, I find, appearing uncomfortable. He looked at the other officers and then said cant recall, no. Inspector Williams then tried again, asking if the men walked down the hallway. PLO Bengaroo repeated that they were struggling. After a little more hesitation, PLO Bengaroo then said Mulrunji flopped against the floor and that SS Hurley fell down on him”. He then said that “Chris was trying to pick him up. DI Webber reassured PLO Bengaroo that he should take his time. Inspector Williams asked if he was saying Cameron fell down. DI Webber then asked or did they both fall down. PLO Bengaroo replied that they both fell down. PLO Bengaroo then described, with some prompting from the officers, how SS Hurley tried to pick up Mulrunji from behind. PLO Bengaroo then confirmed that he did not go inside. He concluded this part of the re-enactment by saying he saw SS Hurley and Sergeant Leafe dragging Mulrunji down the hallway.

271    PLO Bengaroo was asked by Inspector Williams whether, after the fall, he was watching as SS Hurley and Sergeant Leafe dragged Mulrunji down the hallway in the police station leading to the cells. PLO Bengaroo replied, No I wasnt. Inspector Williams asked What were you doing? What, how come you were standing there?. PLO Bengaroo replied I cant 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. Inspector Williams responded, Oh, OK.

272    After that exchange, DI Webber and Inspector Williams asked PLO Bengaroo about whether he saw SS Hurley do anything while Mulrunji was on the ground and whether he saw SS Hurley punch Mulrunji. PLO Bengaroo replied that SS Hurley scruffed Mulrunji. As he said this PLO Bengaroo raised his left arm, with his elbow at right angles, apparently indicating how he recalled SS Hurley scruffed Mulrunji. PLO Bengaroo was then asked whether he saw SS Hurley punch Mulrunji and he replied I didnt, nah.

273    The applicants case included allegations that the failure by DI Webber and Inspector Williams to follow through with PLO Bengaroo about what he had said (and not said) during this re-enactment was a key failure of the investigation. The implication the applicants sought to draw was that PLO Bengaroo had seen things he did not wish to volunteer or talk about and this would have been obvious to any objective investigator. They allege that this failure occurred because PLO Bengaroo was an Aboriginal man and therefore what he said was not taken seriously, or that the investigators were not keen to focus on matters which might impugn SS Hurley.

274    At approximately 1.10 pm on Saturday, 20 November 2004, DSS Kitching and Inspector Williams undertook a re-enactment with SS Hurley. This was the second time SS Hurley gave an account of what occurred. During the re-enactment SS Hurley described what occurred in the following terms (MW standing for Inspector Williams, WW standing for DI Webber, and CH standing for SS Hurley):

MW     Chris what wed 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 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

CH    Yep, that’s fine

MW    Beautiful

CH    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 Cameron DOOMADGEE 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 DOOMADGEE 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

WW    Backhand

CH    It was a type of backhand closed fist punch

MW    Okay

CH    Um, that ah that struck me like that anyway I

MW    So it struck your right jaw

CH    It struck my right jaw chin area

MW    Yep

CH    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

MW    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

CH    Well when ...

WW    Mate, if I play the part ...

WW    Yep

CH    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

WW    Did he have hold of you

CH    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.

MW    Yep

CH    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 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 DOOMADGEE he was low I’ve stepped like this and he’s gone like that like that and we’re both gone like like that.

[I interpolate here that the video of the re-enactment shows SS Hurley demonstrating that he and Mulrunji fell through the door together with SS Hurley falling to the left and Mulrunji falling to the right. In the demonstration, SS Hurley and DI Webber (who was playing the part of Mulrunji in the re-enactment) are in contact during and immediately after the fall but they fall side by side rather than SS Hurley on top of DI Webber.]

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 l 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

WW    You trying to lift him

CH    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 tried to lift him a couple of, sorry I tried to left him a couple of occasions.

MW    Just take your time mate

CH    I tried to lift him a couple of occasions. Like this I’m going get up Mr Doomadgee get up

[I interpolate here that in the video of the re-enactment SS Hurley grabs DI Webber by the shirt and tugs at it several times to indicate an attempt to lift him up from the ground.]

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 DOOMADGEE 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

WW    When you say dragged, what with your arms under each armpit or

CH    No, dragged like he was laying on the ground and he just he was dragged backwards

WW    With his legs dragging

CH    With his legs dragging

MW    When you had Mr DOOMADGEE 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.

CH    I picked him up like to a certain but his shirt kept ripping I picked him a couple of times.

MW    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.

CH    Yeah well at the time I had him like this I was trying to pick him up like that.

MW    Yes

CH    Well you can hear that it just kept on ripping.

MW    What happens to your hand when it ripped.

CH    When it ripped it it went like that.

MW    Yep

CH    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

MW    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 DOOMADGEE was at this time.

CH    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 whatever things on so I was trying to grab him up by the things and get him onto the feet and then to walk him into the cell.

MW    We might just go through and show us how you put into the cell please.

CH    We won’t um actually put him in the cell because we haven’t cleaned it out

MW    No that’s fine

WW    Cell door open or shut

CH    That was open

WW    It was open

CH    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

WW    Backwards

CH    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

WW    Alright I notice here a couple of steps right did was at any stage did anyone fall on the ground, or anything here

CH     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

WW    Head

CH    No

WW    Never struck the ground

CH    No the head never struck the ground no

MW    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 DOOMADGEE’s head strike the ground anywhere in this area.

CH    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

MW    You more or less said you tripped as you come through the door

CH    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

MW    Okay you described Mr DOOMADGEE 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.

CH    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.

MW    Okay, but when you were on the ground who could you see around at that point.

CH    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 was more concerned about what you know having the tussle with DOOMADGEE.

WW    In physical stature how would you describe the deceased more like myself or more like Inspector WILLIAMS

CH    More like the Inspector here um he had a bit of strength about him

WW    Well putting on a struggle

CH    Well the thing that surprised me is I when he hit me out the back of the um van, I said he hit me, he punched me. Because that’s not normal here, you know and ah it shocked me basically. Um, so yeah that’s when I grabbed him and I knew there’d be a tussle on to get him inside if he is going to hit the copper

MW    Did he make any complaint to you at all as he was going through about anything.

CH    He was objecting about being in custody. Like I can’t recall what he was saying but I remember him objecting about you know getting locked up

MW    Anything else Inspector

WW    Not that I can.

MW    Just cover one more small thing when he was lying on the ground, what position, what side, back, front how was he lying on the ground just here

CH    Initially I remember when we both came in, I was down, he was he had his right side that way. And then ah, that was when we first came in. And then when we ended up dragging him into the cell he was on his back.

MW    So basically laying on his right side when he was here

CH    On his right side initially when he came in I can remember

MW    Yeah and then onto his back

CH    And then onto his back yeah.

MW    Okay. Was he still ah, conscious

CH    Yes

MW    At this time. Was he still moving at this time, as you were dragging him, was he still what was he doing as you were dragging him in was he still talking ah or wasn’t he talking.

CH    No he wasn’t particularly talking

MW    Was, was he moving

CH    Yes, yes

WW    Did he was he trying to get say when he was moving, what what were his actions.

CH    Oh he was moving his legs and whatever but he wasn’t ah, I think he was resound [sic; resigned] to the fact that he was going in there and

WW    Was he trying to stand was he trying to move forward

CH    No, he didn’t stand he, he refused to stand when I tried to get him up on a number of occasions. So listen I just said to Mick lets drag him in

275    The applicants made allegations about how SS Hurley changed the account he gave in this second interview from the one given on the Friday. The applicants attributed the changes to SS Hurley being permitted to remain in the police station and (they alleged) overhear what others were saying, as well as SS Hurley being permitted to talk to other officers.

276    The final interview conducted by DSS Kitching during this period was an interview with Ms Florence Penny Sibley conducted in Ingham (which is on the mainland, approximately 45 km west of Palm Island) between 7.50 am and 8.05 am on 21 November 2004. Ms Sibley is an Aboriginal woman. On her account of what she saw outside the police station on 19 November 2004, after Mulrunji had been taken out of the police van, he punched SS Hurley and Ms Sibley then saw SS Hurley hit Mulrunji.

277    By this stage all relevant officers had been interviewed except Constable Steadman. Constable Steadman had been sent to Palm Island only a couple of days before Mulrunjis death. Nevertheless, he was present at many critical events, including checking on Mulrunji in the cell. In the watchhouse cell video which is in evidence, Constable Steadman is the person in plain clothes, as he was off duty at this time. He was not interviewed by the investigating officers before the CMC took over the investigation on 24 November 2004. Instead, he was interviewed by CMC investigators on 8 December 2004. The applicants make allegations concerning the failure to interview Constable Steadman in a timely fashion, and I deal with these below.

278    Whether one speaks of a fall (on SS Hurleys account), a scruffing (on PLO Bengaroos account) a hit (on Ms Sibleys account) or repeated punches (on Mr Bramwells account), on any view the investigating officers knew it was SS Hurley who was the person with Mulrunji in the events leading up to him being dragged, limp, into the cell and dying there. Despite this, SS Hurley was not suspended from duty on 19 or 20 November 2004. He was on duty for the remainder of 19 November and was also on duty on 20 November. He was not asked to stay at home. Nor was he asked to leave the island. On Sunday, 21 November 2004, SS Hurley had a rostered day off. There is no evidence about what he did during this day. He resumed duty on the morning of Monday, 22 November 2004.

279    On the Saturday (20 November 2004), the original investigation team left the island: namely, DI Webber, DSS Kitching and Inspector Williams. DI Webbers explanation was that they had completed all necessary interviews, apart from that of Penny Sibley, and that there were no other lines of inquiry to follow on the island at that point in time.

Police conduct in relation to the first autopsy

280    Sometime in the afternoon of Friday, 19 November 2004, Mulrunjis body had been taken from the police station to the Palm Island hospital, which is located a short distance away, no more than a few hundred metres. From there, his body was taken off Palm Island for the purpose of an autopsy being conducted in Cairns. The autopsy occurred on Tuesday, 23 November 2004. A second autopsy was conducted on 30 November 2004, and thereafter Mulrunjis body was returned to Palm Island. He was buried on Palm Island on 11 December 2004. The police logs suggest the State Coroner may have delayed releasing Mulrunjis body back to his family pending advice in relation to the second autopsy. What this advice might have been is not revealed on the evidence.

281    In order for an autopsy to be conducted, the police officers on Palm Island had to first complete what is known as a Form 1 certificate for the pathologist who was to conduct the autopsy. In November 2004, this form was required pursuant to s 7(3) of the Coroners Act 2003 (Qld) and constituted formal notification to a coroner of a reportable death, which included deaths in custody. The Form 1 was also required under s 8.4.8 of the OPM. The version of the form that is relevant to this case was entitled Police Notification of Death to Coroner and was published in the Queensland Gazette on 21 November 2003 pursuant to the Coroners Act. The applicants case included allegations that critical information from two Aboriginal witnesses (Mr Bramwell and Ms Sibley) was left out of the Form 1 by DSS Kitching. They also alleged that unsubstantiated information, adverse to Mulrunji, was given to the coroner. I deal with these matters below.

282    DSS Kitching prepared a Form 1 on the night of Friday, 19 November 2004 at approximately 8.58 pm, and forwarded it to DI Webber that night. DI Webber examined the Form 1 on the same evening and did not make any amendments to it, nor did he instruct DSS Kitching to forward the Form 1 to any person. The Form 1 was not sent to the State Coroner, the Government Pathologist, the State Coroners Police Support Unit or the local coroner on 19 November 2004. Indeed, it was not sent until Monday, 22 November 2004. On the morning of 22 November 2004, the Form 1 was emailed to the State Coroner at 7.43 am and then also sent by facsimile to the State Coroner at 10.40 am. The Form 1 remained as it had been filled out by DSS Kitching on the evening of 19 November 2004, despite further information coming to light during the interviews over the weekend.

283    Under the heading Summary of Incident on the Form 1, DSS Kitching wrote:

The deceased was arrested by Senior Sergeant HURLEY of Palm Island Police at approximately 10.15am on the morning of the 19th November 2004 in Dee Street Palm Island for an offence of Breaching of the peace. At that time the decease [sic] was aggressive and was restrained and placed in the rear of a caged police vehicle. The deceased was then transported to the Palm Island Police Station where he again became aggressive when police attmepted [sic] to remove him from the rear of the police vehicle. At that time the deceased is alleged to have assaulted Senior Sergeant HURLEY. The deceased was then physically restrained and placed in Cell 2 of the Palm Island Police Watchhouse and charged at 10.26am. At that time the deceased laid on the floor of the cell and went to sleep immediately. A physical inspection was conducted of the deceased at 10.55am and he was asleep and breathing at that time. A further physical inspection of the deceased was conducted at 11.23 am. At that time police could not see the deceased breathing and could find no pulse. Queensland Ambulance Service was contacted immediately and attended the Palm Island Watchhouse and resusicitation [sic] was not possible.

284    Any person familiar with the information available at the time the Form 1 was sent on Monday, 22 November 2004 would be able to see this account is inaccurate and incomplete in several key respects.

285    Both DI Webber and DSS Kitching had watched the cell video on 19 November 2004 before interviewing SS Hurley, although the entire video up to the point that Mulrunji is discovered not to be breathing goes for 44 minutes and it is unclear on the evidence whether either or both of them watched all of it at this stage, or subsequently. It is also not clear whether they watched it together or separately. There are some discrepancies in specified times as between the cell video and the Form 1, but these appear explicable at least in part by the technical issues with the time stamp on the video. It appears the check of Mulrunji occurred closer to 10.45 am than 10.55 am; and that Mulrunji was found not to be breathing by Sergeant Leafe at just after 11.15 am, rather than 11.23 am. Nothing turns on these discrepancies. The key timing fact for the purposes of the investigation was that there is only just under an hour between when Mulrunji was dragged into the cell by SS Hurley and Sergeant Leafe, and when he was found by Sergeant Leafe not to be breathing.

286    More critically, and contrary to the impression created by the Form 1, the cell video shows clearly that Mulrunji was not asleep during the period before he was found dead. What the cell video shows is Mulrunji rolling slowly from side to side, and moving his limbs from time to time, while lying down. He calls out from the start of the tape at 10:18:52 (by the time stamp on the video). There is a brief check at 10:30:35 by SS Hurley, it would appear in response to a loud call from Mulrunji at 10:30:00. SS Hurley is only there for a few seconds and does not bend down. Mulrunji is still while SS Hurley is in the room, but then continues to move after SS Hurley leaves.

287    What is said in the Form 1 is however more consistent with what SS Hurley said in his record of interview. In that interview, he stated that when he checked the prisoners both were asleep and both were snoring. Having now watched the cell video many times, I am unable to see how any objective investigator could have accepted SS Hurleys description if the investigator watched (and listened to) the cell video.

288    The cell video then shows Sergeant Leafe checking Mulrunji and Patrick Bramwell at 11:02:53. Sergeant Leafe checks Mulrunji for some time and pats him, apparently trying to wake him up, before leaving at 11:04 and returning briefly a few seconds later. SS Hurley then enters the cell and crouches over Mulrunji for several seconds, apparently checking for signs of life. He leaves, but returns and repeats that process at 11:05:50, staying for more than a minute. At 11:09, Sergeant Leafe and Constable Steadman enter the cell again, followed by SS Hurley. By this time it is clear Mulrunji is dead.

289    The Form 1 is also inaccurate and incomplete in other key respects. It says nothing about PLO Bengaroo’s statement that SS Hurley fell on Mulrunji when the two men entered the police station. It says nothing about Mulrunji being dragged limp and a dead weight (according to Sergeant Leafe) into the watchhouse cell, after having been vigorously struggling from the point at which he was taken out of the police van and brought inside until the point at which he ended up on the floor of the police station. It says nothing about Mr Roy Bramwells allegations, nor those of Ms Sibley. It suggests Mulrunji laid himself down on the floor of the cell, which is patently wrong. As I have said above, it suggests Mulrunji went to sleep in the cell, when it is clear from the cell video that he was rolling and moving around, making audible noises.

290    Under the heading Précis of Statements DSS Kitching wrote in the Form 1:

Senior Sergeant Christopher James HURLEY has been interviewed by Detective Senior Sergeant KITCHING of the Townsville CIB. HURLEY stated that he arrested the deceased in Dee Street, Palm Island. At that time the deceased was aggressive and abusive towards police and was physically placed in the rear of a caged police vehicle. HURLEY states that upon arrival at the police station he opened the door on the cage of the police vehicle and at that time the deceased became aggressive and punched HURLEY in the side of the face. 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. Another police officer Sergeant Michael LEAFE then assisted Senior Sergeant HURLEY place [sic] the deceased into the watchhouse cell by dragging him with both arms. He was charged at 10.26am. HURLEY then conducted a physical inspection of the deceased at 10.55am and he was asleep and breathing. A further inspection was conducted by Sergeant LEAFE at 11.23am and the deceased was not breathing and had no pulse. HURLEY states that QAS attended the watchhouse and resusicitation [sic] was not possible. Dr IBE of the Palm Island Hospital later attended the watchhouse and pronounced life extinct. HURLEY noticed a small abrasion to the right eye of the deceasedafter [sic] he was found to be deceased. This injury was brought to the attention of HURLEY by the QAS. This was the only injury identified on the deceased.

291    It can be seen that this summary is more consistent with the account given by SS Hurley to DSS Kitching. It does mention the fall. Somewhat extraordinarily, it records Mulrunji being charged after he was dragged into the cell, in a condition the parties agreed could be described as limp and unresponsive. However, again, there is no reference to the statements of Mr Roy Bramwell and Ms Sibley. There is also no reference at all in the original Form 1 to how Mulrunji appeared in the cell video, which I have described at [286] above.

292    Thus, for the purposes of the chronology, the steps necessary for the autopsy to be undertaken and a report given by the coroner did not occur until Monday, 22 November 2004. Further, although there were provisions in the OPM requiring a Supplementary Form 1 to be filled in and sent to the coroner where new or different information arose after the completion of the original Form 1, no such form was prepared or submitted by the investigating officers.

Police conduct and interactions with the Palm Island community between 22 and 25 November 2004

Events of Monday, 22 November 2004

293    SS Hurley returned to duty on the morning of 22 November 2004. By this stage Inspector Williams, DI Webber and DSS Kitching had left the island (having left on the Saturday), apparently content for SS Hurley to remain on the island, in charge and on duty. At some point shortly after mid-morning, a community meeting was held in the mall area not far from the police station. During this meeting, local people were calling for SS Hurley to be held accountable for what had happened and asking why he had not been arrested.

294    Subsequently, there was an exchange of words between SS Hurley and Lex Wotton in Police Lane, at the rear of the police station near where Mulrunji had been brought in the police van. SS Hurley was driving a police van with DS Robinson next to him. PLO Bengaroo, and another uniformed officer were in the back. A Palm Island resident, Tony Palmer, was in the locked part of the van. Mr Palmer yelled Get me out of here. Otherwise Im going to be the next one, and the considerable crowd of people around the police station, estimated by Mr Wotton to be between 150 to 200 people, began to get stirred up. They began to call out abuse to the officers. I return to these events in more detail in the Resolution section.

295    It appears that after this exchange, a decision was taken by the QPS that SS Hurley should leave the island. It is unsatisfactory that the respondents, who had knowledge of these matters, chose to lead no clear evidence about this significant event. SS Whyte could not recall anything much of what occurred on that day (he had just arrived on Palm Island), and no other QPS officer who was present was called as a witness. I deal at [389] with the failure of the respondents to call a number of significant witnesses.

296    SS Hurley left Palm Island on the afternoon of Monday, 22 November 2004. There is no direct evidence in this proceeding whether he was ordered to leave, or left voluntarily. In my opinion, the evidence favours a finding that he was directed to leave: see [1035] below. On that same day, SS Whyte arrived on the island with Inspector Richardson and SS Whyte replaced SS Hurley as the Officer in Charge of the police station.

297    By Monday, 22 November 2004, tensions were still high in the Palm Island community. There was no news available about how Mulrunji had died, as the autopsy had not yet been conducted. At this time, the Palm Island Council included the Mayor, Ms Erykah Kyle, the Deputy Mayor, Mr Zacchias Sam, the CEO, Mr Barry Moyle, and Ms Denise Geia, an employee of the Council who later in the week became acting CEO. The Council were involved in trying to gather and convey information to the community about the autopsy process and the investigation. They were also attempting to provide representation of the community to the police and to other government agencies, as well as attempting to quell tensions within the community. It is clear from the contemporaneous video footage that different views where held within the community about how well the Council performed these roles. On any view however, Mayor Kyle was a constant and highly visible presence in the contemporaneous video footage.

298    There was a debate between the parties about how much interaction there was between the QPS and the Palm Island Council members, how much consultation occurred, and how much assistance the QPS sought from the Council. I deal with these matters in the Resolution section. Although the QPS had members identified as Cross Cultural Liaison Officers (CCLOs), it does not appear that such an officer was sent to Palm Island until SS Dini arrived on 26 November 2004. CCLOs have specific roles, including to improve relations and provide effective liaison between members of the QPS and Aboriginal and Torres Strait Islander community groups; to identify the needs of those communities; to enable appropriate policies and strategies to be developed; and to ensure that the police deliver an equitable service within the region. This is a different role from the role performed by the QPS Cultural Advisory Unit which was based in Brisbane and reported to and advised the Police Commissioner. That unit had a broader policy role. CCLOs were avowedly intended to be used in everyday policing situations, and to provide assistance in that context.

299    SS Dini was a CCLO based in Townsville, who was familiar with Palm Island. He was on holidays at the time of the death of Mulrunji and did not return to work until 26 November 2004. There was no acting CCLO while he was away. On the morning of his return to work, he was sent to Palm Island. I return to the role he played in the Resolution section.

300    At 2.30 pm on 22 November 2004, a second public meeting occurred in the mall area next to the Palm Island Council Chambers. Estimates in the evidence of how many people were at that meeting varied, but I accept Mr Wottons evidence that it was in the region of 150 people. DS Robinson, Inspector Richardson and SS Whyte also attended the meeting. During the meeting, some community members expressed their dissatisfaction to Inspector Richardson, SS Whyte and DS Robinson about Mulrunjis death. It seems that little, if any, information about progress in the investigation was passed to the community at the meeting, nor was any information passed on about the progress of the autopsy. From the footage it appears community members believed SS Hurley was still the Officer in Charge of Palm Island Police Station, and still on the island. Perhaps for that reason, the evidence shows that Inspector Richardson addressed the meeting and told the community SS Hurley was no longer the officer in charge of policing on Palm Island and that he and SS Whyte were now the officers in charge. Mr Wotton made demands at this meeting that SS Hurley should be arrested and in custody. I return to what was said in the meeting in more detail in the Resolution section of these reasons.

301    There were incidents demonstrating that tensions remained, at least in relation to some Palm Island residents. For example, the police running log records that, during the Monday night and the following night, rocks were thrown at police vehicles and at the police station, causing damage to the vehicles that included a broken windscreen and a dented door.

302    It appears that sometime after the community meeting on the Monday afternoon, police reinforcements were flown to the island, increasing the police numbers on the island from seven officers on 19 November 2004 to 20 officers on 22 November 2004. That is, more than one police officer for every 100 residents, if one includes the elderly and children.

Events of Tuesday, 23 November 2004

303    The next day (23 November 2004) there was another meeting in the mall, at approximately 10.30 am. SS Whyte did not attend this meeting, but sent a Senior Sergeant Bennett to observe it. Approximately 150 Palm Island community members were present at the meeting. From the video footage it appears many were deliberately there for the meeting, but many were also there because they were at the island shop, or passing through and stopped to listen. The evidence shows that Mr Wotton spoke at this meeting, as did Mr Roy Bramwell. Mr Wottons evidence (which I accept) was that he and Mr Bulsey picked up Mr Bramwell and took him to the meeting. They explained to Mr Bramwell that the meeting was an opportunity to inform the community about what Mr Bramwell said he saw, because there were rumours in the community. Mr Wotton said this was an opportunity for Roy to say things. Mr Bramwell did speak to the assembled crowd, as did Mayor Kyle.

304    When he spoke to the meeting, Mr Bramwell gave an account of what he had seen in the police station on Friday, 19 November 2004. It was a relatively matter of fact account that reflected what he had told the police on 20 November 2004, including that SS Hurley struck Mulrunji several times while Mulrunji was on the ground while saying words to the effect of Do you want more, Mr Doomadgee? Have you had enough?. Towards the end of the meeting, Mr Wotton spoke about his understanding of what was in the report of the RIADIC. In the video footage, there is a visible level of agitation, concern and anxiety apparent in many of the community members, including those who spoke, but there is no sign of violence or unrest beyond this.

305    At approximately 2.30 pm on 23 November 2004, DS Robinson received a report from a person described in the evidence as a confidential informant that certain persons were going to fire bomb the police station and barracks. DS Robinson subsequently spoke with a couple of residents of the island, Dwayne Blanket and Frank Conway, about these threats. The police log records that they told DS Robinson they had no intention to fire bomb the police station or the barracks. However, there was clearly some heightened concern amongst QPS officers and, approximately an hour after the information was reported to DS Robinson, A/AC Wall directed that police officers on Palm Island take their weapons to their sleeping quarters with them. How many officers complied with this direction was, again, not the subject of any evidence. Later that afternoon, police officers arranged for units of the rural fire brigade to be on standby to attend the police station compound if required. SS Whyte drew up a fire evacuation plan for the police station.

306    Also on 23 November 2004, and apparently before the meeting at 10.30 am, Inspector Richardson gave what I consider to be an ill-judged and somewhat inflammatory media interview which was dismissive of the concerns of Palm Island residents, despite those concerns being in my opinion both understandable and justified. In his comments, Inspector Richardson engaged in the kind of stereotyping of Palm Islanders, and Aboriginal communities, which I find was a consistent feature of the attitudes of QPS officers during these events on Palm Island. The video of the media interview was in evidence before me. The relevant part of what Inspector Richardson said was as follows:

On Friday, the investigation team, as I said, have arrived here and conducted the investigation through to Saturday, and I understand the island was very quiet, the people were, there wasn’t any real concerns at that time. All of a sudden, yesterday, there was concerns raised in relation to his death. A lot of questions are being asked. From what I can make of it a lot of the questions they’re asking are based on rumours. They’re not factual. It’s what people are saying. We had a meeting with them yesterday – a public meeting yesterday and I explained to the people that they need to sit back and wait and let us put the investigation together, to tie it together, wait for the post-mortem to take place and then let’s see what happens from there. Then they can ask their questions once they get all the facts.

These community problems frequently arise when there’s been a death in custody. The Aboriginal communities, the people in there tend to, they are emotional about the deaths of course – especially when there’s police involved – and quite often they become very personal against the officers. There’s attacks made and allegations made. The majority of it is unfounded but it’s developed through rumours which are spreading throughout the community.

The investigations at this stage have shown no improper police practice. We’ll just have to wait and see now what happens with the post-mortem, which is being conducted in Cairns today.

Yes, we did [bring reinforcements to the island] yesterday as a result of, I think there was about 200 to 300 people outside the Police Station here demanding a meeting and asking questions with the officer in charge at the time, it had become very uncomfortable here on the island and, when you take into consideration the history of the island, we have to take all measures to ensure everyone is safe.

307    What Inspector Richardson meant by “when you take into consideration the history of the island” was not explained in the evidence. On any view, it characterised all Palm Islanders, as a group, in a negative way. There were, on the evidence, no measures taken to ensure Palm Islanders were safe.

308    At 1 pm on Tuesday, 23 November 2004, an autopsy of Mulrunjis body was conducted by pathologist Dr Guy Lampe in Cairns. DSS Kitching attended the autopsy. At some point during the conduct of the autopsy DSS Kitching told Dr Lampe that Mulrunji may have been sniffing petrol or drinking bleach prior to his arrest by SS Hurley. In oral evidence, Inspector Kitching claimed he received this information from DS Robinson. He was not able adequately to explain why he passed on this information, which he characterised as unconfirmed stories, to the coroner but did not pass on the allegations made by Ms Sibley and Mr Bramwell.

Events of Wednesday, 24 November 2004

309    During the autopsy on 23 November 2004, Dr Lampe told DSS Kitching that the cause of death was intra-abdominal hemorrhage due to ruptured liver and portal vein. In his Preliminary Autopsy Report dated 24 November 2004, Dr Lampe found that Mulrunjis death was as a result of haemorrhage into his abdominal cavity, which occurred secondary to a rupture of the liver (which virtually cleaved the liver in two), as well as from a hole in the portal vein. Dr Lampe further found that the degree of liver rupture and injury to soft tissues was indicative of a moderate to severe compressive force applied to the upper abdomen and that there is nothing to suggest that this man has drunk any bleach or other caustic substance. During the autopsy, Dr Lampe had made it clear to DSS Kitching that Mulrunjis death was not from natural causes and that, in addition to the intra-abdominal haemorrhage due to ruptured liver and portal vein, Mulrunji had four broken ribs.

310    Although this was not an agreed fact, DI Webber accepted in cross-examination that on Wednesday, 24 November 2004, Dr Lampe informed him that the State Coroner, Michael Barnes, had requested the word fall be removed from Mulrunjis autopsy certificate so that it did not appear that the pathologist was assisting the police in a cover-up.

311    Notwithstanding this comment, and despite the completion of the autopsy on 23 November 2004 with DSS Kitching in attendance, it seems that on 24 November 2004, neither Inspector Richardson nor SS Whyte were informed about the injuries Mulrunji had sustained prior to his death whilst in police custody, nor were they informed of the cause of death, including the fact that Mulrunjis liver had been ruptured. Nor were they told of the fact that Mulrunji had sustained four broken ribs whilst in QPS custody. In his evidence DI Webber said that DSS Kitching had telephoned him on the afternoon of Tuesday, 23 November 2004 and outlined the findings of the autopsy. He also stated that he informed the Assistant Commissioner immediately afterwards, whom he understood then made a number of telephone calls to other officers. DI Webber agreed that, during the telephone call with DSS Kitching, it became clear that Mulrunji had not died from natural causes. He agreed that DSS Kitching had informed him that Mulrunji had died as a result of haemorrhaging in his abdominal cavity that was secondary to a rupture of the liver. He also agreed that DSS Kitching told him about the four broken ribs. By this time, DI Webber had not been on Palm Island for several days, having considered the investigation on the island complete by Saturday, 20 November 2004.

312    There continued to be unrest on the island. Although the QPS had the autopsy results by the afternoon of 23 November 2004, no-one had communicated those results to Mulrunjis family, nor to the Palm Island community. The police log records that, on the evening of 24 November 2004, rocks and bricks were thrown at the police station and the adjacent police barracks. The log records that the windows of the barracks were smashed by a large gathering of persons outside and that 991 [a police car] moved to intercept [but was] forced back by [the] mob. However, the log also records that there was Nil damage to vehicles or injuries to officers at this time.

313    The State Coroners office gave the preliminary autopsy report dated 24 November 2004 to the CMC, which had, on that date, assumed responsibility for the investigation. It is unclear, on the evidence before this Court, how the report was transmitted, to whom, and when. That the CMC had taken over the investigation into Mulrunjis death appears to have occurred as a result of a request from the QPS. However, what that request was, who made it, and how the decision was made for the CMC to take over the investigation were also not the subject of evidence before me. Inspector Ken Bemi from the CMC formally took over responsibility for the conduct of the investigation, assisted by Inspector Williams from the Ethical Standards Command. It will be recalled that Inspector Williams had been on Palm Island over the weekend, conducting interviews with the QPS, in his capacity as the officer representing the Internal Investigation Branch, Ethical Standards Command for the purposes of s 1.17 of the OPM.

Events of Thursday, 25 November 2004

314    On Thursday, 25 November 2004, in the early evening near 6 pm, SS Whyte spoke to Ms Denise Geia, who was by then the acting CEO of the Palm Island Council. Ms Geia told SS Whyte that Mayor Kyle was inside the Palm Island Council Chambers with members of Mulrunjis family, speaking with the family about the autopsy report. It would seem that by this time, the Mayor and the family had some information about the autopsy report, but what they had and how they received it is not revealed by the evidence. The only evidence I have been able to find is what was said by Mayor Kyle at the public meeting the following day (Friday, 26 November 2004), where she spoke of a phone call to the State Coroner regarding what information could be released to the community.

315    After speaking with Ms Geia, SS Whyte reported to Inspector Richardson the information Ms Geia had provided to him. It appears from the evidence that SS Whyte understood that there was argument about whether the full or partial results of the autopsy (were to be) released in the public meeting on the Friday. It does not appear that either Inspector Richardson or SS Whyte took any steps to inform themselves about what the autopsy report said.

316    Shortly after this, A/AC Wall called Inspector Richardson and told him that the results of the autopsy upon Mulrunji had either been delivered to the family of Mulrunji or were about to be delivered to the family. This led Inspector Richardson to warn the QPS members on the island to be on your toes and be on the look out, you know things could turn a bit hostile.

317    Notwithstanding these events, the evidence does not suggest anything untoward occurred on the evening of 25 November 2004.

The protests and fires on 26 November 2004

318    The next morning, on 26 November 2004, another community meeting was held in the mall area. At approximately 12.30 pm Mayor Kyle spoke to the people there, who numbered approximately 150 to 200. There is video footage in evidence of Mayor Kyle speaking to the assembled community members. Mayor Kyle said that the report revealed that there had been an accident somewhere around the cell and that Mulrunji had sustained injuries from a fall. She also told the crowd that the doctor explained that there was a compressive force on Mulrunjis body where four ribs were broken and that caused a rupture to his liver, which caused heavy internal bleeding. However, what she said omitted several important elements of the preliminary autopsy report, including that the pathologist also said SS Hurley’s added weight might provide “a satisfactory explanation” for the injuries Mulrunji sustained if SS Hurley had fallen on top of him, and that while there was no evidence to suggest the use of direct force it also could not be excluded. Mayor Kyle’s comments may also have conveyed the impression that the conclusions in the report were final and that no further inquiries would be made by either the State Coroner or the QPS. I return below to why Mayor Kyle’s comments may not have conveyed a correct impression of the autopsy results to those listening.

319    The video footage shows the distress Mayor Kyle felt at what she was conveying and the distress in those listening can also be heard. People made comments about SS Hurleys responsibility for Mulrunjis death. There is no evidence that any police officer or other official representative attended or addressed the crowd during the meeting. Inspector Whytes evidence was that he thought even his attendance may have incited problems because if they wanted us at the meeting they would have invited us to the meeting.

320    After Mayor Kyle finished speaking, a series of other individuals spoke, including David Bulsey and Mr Wotton. They, and others in the crowd, expressed disbelief that Mulrunji could have died from a fall and anger at the police for failing to arrest SS Hurley. I describe what was said more fully at [774] below. Not long after the meeting, just outside the police station, SS Whyte encountered Mr Wotton, who was with some other local people. They had a heated and somewhat aggressive conversation, the details of which were contested and about which I make findings below.

321    At approximately 1 pm, the crowds unrest increased and a number of people moved from the mall area to the police station, including Mr Wotton. Rocks were thrown at the police station; the courthouse, the police station and the police residence of SS Hurley were set on fire; a police vehicle was set on fire; and some members of the community yelled threats and obscenities.

322    The police left the police station and went to the police barracks across Police Lane. As locals saw the police moving, a crowd of locals followed the police to the barracks, a distance of approximately 50 metres, and still close to the mall. The distances between these places, it must be recalled, are quite small.

323    As the crowd arrived at the barracks, SS Whyte, who was outside the barracks (but behind the fenced area fronting onto Mango Avenue) called out to speak to Mr Wotton. Mr Wotton told him the community had heard the results of the autopsy report and wanted the police to leave the island within an hour and that he would escort the police so that they were not harmed. There is a dispute on the evidence of the two men about who said what, and about the outcome of the conversation. I deal with this below. What was not contested by Inspector Whyte was that, at some time after their conversation, Mr Wotton told the crowd to stop throwing rocks, and the crowd dispersed soon after.

324    After the crowd dispersed, the police then moved, as a group, from the barracks to the hospital. The evidence suggests this was done in the belief there would be greater safety for the officers at the hospital. Some video footage of the officers moving along Mango Avenue is in evidence. There are few if any local people visible, and not much noise can be heard. However, at this stage, the police station and SS Hurleys home were still burning. The evidence suggests the fire brigade arrived at approximately 1.34 pm, approximately 43 minutes before the police left the barracks for the hospital at 2.21 pm. The fire brigade officers do not appear to have had any difficulty moving through the groups of local people to put out the fires.

325    Once at the hospital, the police lined up outside the front of the hospital, facing the sea. There is video footage of this event in evidence. There was a line of approximately 20 police officers, mostly in uniform. One officer had a large police dog, which was barking at the crowd. Several officers had firearms in their holsters. The crowd of locals gathered in front of the hospital may have numbered 100. They were seated or standing in small groups at various points in front of the hospital. There were a number of older people, women and children present. A few people were calling out. No local people appear to be carrying anything, despite DI Webbers evidence that he saw locals carrying sticks and spears. Inspector Whytes evidence was that he did not see anyone carrying sticks or spears. Again, the evidence is somewhat sparse regarding how this situation was resolved, but it appears that after some discussions which seemed to have involved, at least, Mayor Kyle, Mr Wotton and several officers, the local people simply dispersed and went about their business at some point after 3 pm. It thus appears the standoff outside the hospital may have lasted an hour or so.

326    On the evidence, the whole sequence of events from the announcement by Mayor Kyle of the autopsy results, to the confrontation at the police compound, to the fires, to the arrival of the fire brigade (who then had the fire promptly under control), to the police lining up outside the hospital took place over the course of approximately three hours.

327    The police station and SS Hurleys house were destroyed in the fire.

The emergency declaration and the arrival of police reinforcements, including SERT and PSRT

328    Exactly how and when the QPS on the mainland were informed about the events on the island was not the subject of much evidence. However, it is clear from a combination of the police logs and DI Webbers evidence that A/AC Wall advised DI Webber of the fires and the general situation on the island more or less as those events occurred. At that point, A/AC Wall and DI Webber were both at the Mundingburra Police Station in Townsville. DI Webber then made a number of telephone calls to arrange for officers to go to Townsville Airport in order to fly to Palm Island. Having done so, DI Webber went to the airport himself in order to fly to the island with the other officers.

329    While he was at the airport, and at approximately 1.45 pm, DI Webber made a declaration of an emergency situation under s 5(1) of the PSP Act (the emergency declaration). The effects of such a declaration were, in summary, to enable the use by police (and special police operations teams such as SERT) of a variety of coercive powers, and powers of entry, search and seizure, which otherwise would not be available to them without warrant. Those powers were purportedly exercised throughout Friday evening, Saturday and Sunday morning. It was common ground that no Certificate relating to the Declaration of an Emergency Situation under s 5(2) of the PSP Act was issued or caused to be issued on 26 November 2004. Rather, the evidence is that the Emergency Declaration Certificate was not completed by DI Webber until two days later, at around 8.50 am on Sunday, 28 November 2004.

330    DI Webber revoked the emergency declaration at 8.10 am on Sunday, 28 November 2004. Thus, the Emergency Declaration Certificate was completed more or less contemporaneously with the revocation by DI Webber of the emergency declaration. A certificate concerning the revocation (and noting the time of revocation as 8.10 am) was faxed to the QPS in Townsville at approximately 9.15 am on 28 November 2004.

331    No attempt was made by QPS officers to inform the local community on Palm Island about the making of the emergency declaration on 26 November 2004. Nor is there any evidence the community was informed when it was revoked.

332    Whether because of the emergency declaration, or because of the events that occurred on the afternoon of 26 November 2004 (including the burning down of the police station and SS Hurleys house), or both, a large contingent of police officers was despatched from Townsville to Palm Island. This included, during the afternoon and evening of 26 November 2004: 11 QPS officers and one police dog at approximately 2.15 pm via Police Airwing; four QPS officers at approximately 3 pm via an unknown aircraft; one QPS officer at approximately 3.20 pm via Queensland Emergency Services helicopter; 13 QPS officers and one police dog at approximately 3.37 pm via an unknown aircraft; six QPS officers at approximately 4 pm via an unknown aircraft; 10 QPS officers at approximately 4.40 pm via Police Airwing; one QPS officer between 5.30 pm and 6 pm via Queensland Emergency Services helicopter; and approximately seven QPS officers at unknown times via unknown aircraft. The next day (Saturday, 27 November 2004) another seven officers arrived during the morning by Police Airwing. It was an agreed fact that over the course of the period covered by the emergency declaration there were between approximately 59 and 82 QPS officers (non-SERT or PSRT) on Palm Island.

333    The situation on Friday, 26 November 2004, and the emergency declaration, also resulted in a decision to send specialist police officers to Palm Island. These officers were drawn from two specialist teams within the QPS: SERT and PSRT. The role of SERT, as set out in s 2.26 of the OPM, was to operate as a specialist support unit, established to provide the QPS with the ability to respond to terrorist incidents across Queensland, whose primary functions were: to respond to terrorist incidents within the arrangements agreed to under the State Antiterrorist Plan; to provide specialist police capability to resolve high risk situations and incidents that were potentially violent and exceeded normal capabilities of the QPS; to provide assistance to all officers of the QPS with low risk tasks which required specialist equipment, skills or tactics; and to provide a rescue function in incidents which required specialised recovery techniques. The role of PSRT, as set out in 2.24 of the OPM, was to provide a unit of specially trained, centralised QPS officers who were equipped to respond in the interest of public safety to instances of confrontation, violence and other specialist duties which exceeded normal police capabilities.

334    It is not entirely clear from the evidence when the SERT and PSRT officers arrived on Palm Island, nor who decided they should be sent and why. There was an unsatisfactory gap in the evidence on these issues. Inspector McKays evidence was that SERT could be deployed verbally in an urgent-response capability. He described his understanding of how that verbal communication occurs through the QPS chain of command but his evidence was not specific to the deployment of SERT and PSRT to Palm Island. When asked whether he had any role in organising the attendance on Palm Island of SERT or PSRT officers, DI Webber answered:

Well, when I declared the emergency situation to exist, I suppose that initiated an activation plan for them - for them to actually attend to assist other officers. At the actual determination of what involvement I suppose they have, it has to be I suppose agreed to by one of the deputy commissioners.

335    DI Webber confirmed that he had signed a written request for SERT assistance, but that he had done so after he returned from Palm Island on the afternoon of Monday, 29 November 2004, not on 26 November 2004 when it appears the decision to deploy SERT was made. The written request was in evidence and is titled Special Emergency Response Team Request for Assistance Form (Section 2.26 of the Operational Procedures Manual). Despite DI Webbers evidence that it was not filled out until 29 November 2004, the form is dated 26 November 2004 and states that DI Webber was the officer making the request. In it, DI Webber outlined the situation on Palm Island as follows:

1.    Outline Situation or Incident:

At approximately 12 midday on Friday the 26th of November 2004 a large crowd of approximately 200 people gathered in the Mall area on Palm Island to discuss the findings of the post mortem report into the death of in custody [sic] of Cameron DOOMADGEE. After the results were publicised a male person using a public address system addressed the crowd, and in an emotionally charged speech accused the Police of ‘cold blooded murder. This male person went on and said, “They’re inciting a riot them cops. They’re inciting. The want it to happen.Why should he get away with fucking murder and walk around free. If you don’t stand up, it’ll happen again, maybe to one of your children. It’s cold blooded murder and this man is still free.” The crowd responded with applause and clapping after this person had finished.

At the conclusion of this address, the large crowd moved to the Palm Island Police Station. Emotions remained strained at the Police Station with people calling to kill police and burn the station. The crowd then reputed [“erupted”] into a violent frenzy that saw the Police Station being pelted with rocks, bricks and other objects, police being threatened and damaged [sic] caused.

As the situation escalated, Police Officers were in grave fear of their safety and were present in the police station when it was being doused with petrol and set alight. Police officers have then fled and came under further rock throwing attacks prior to barricading themselves in the Police barracks. They were again targeted [by] a large crowd who continued to throw rocks and other objects at them as the crowd attempted to gain access into the barrack compound. Another Police residence was then set alight and was totally destroyed by fire. The remaining police residences were then looted by the crowd and property was destroyed and stolen.

Police later sought refuge in the local hospital until re-enforcements from Townsville arrived. The crowd then followed police to the hospital and again confronted them and demanded officers leave the Island. Upon the arrival of re-enforcements the crowd dispersed and left the area.

An Emergency Situation was declared at 1345hrs on 26/11/04 for the entire Palm Island.

Urgent assistance from S.E.R.T. members is required to provide protection for policing operations on the island. Assistance is likely to be required for some time until normal policing operations can be restored.

Persons on the island are capable of using lethal force including rocks, molotov cocktails and have access to other weapons including knives, machetes, spears and possibly stolen police firearms. A number of armed offenders will need to be apprehended as part of the investigations into the civil disorder. These offenders will pose a serious threat to police officers and good order on the island.

2.    Who or what is the subject of the request?

2.1    Offender/Suspect(s) details:

The subject of the request is to assist conventionally equipped police officers to maintain a policing presence on Palm Island and the secure the safety of all Palm Island residents. Assistance is also sought to search for and apprehend persons who took part in the riot and arson of Police property. These persons may be armed with weapons and pose a serious threat to the life and safety of police members.

The identity of individual offenders will be provided on an ongoing basis for operational planning.

2.2    Other possible occupants and their relevant criminal histories? (including women and children.):

Actions by SERT and other members will be assessed on an individual basis subject to individual collection plans.

2.3    Particulars of Vehicles used:

N/A

2.4    Particulars of weapons the offender may be in possession of or have access to:

It is suspected a QPS Mini-14 rifle may have been looted from the Police Barracks prior to it being burnt down. Offenders have shown a propensity to use rocks, molotov cocktails and iron bars as weapons. Offenders have ready access to other weapons including knives, machetes, and spears.

3.    SERT is requested to:

X    Provide a specialist police capability to resolve a high risk situation which is potentially violent and exceed normal police capabilities; (i.e. defeat fortification, detain armed high risk offenders).

MISSION

4.    SERT is requested to:

SERT to travel to Palm Island and undertake the following tasks:

a)    To provide security to police members on Palm Island and regain control of public order on the Island.

b)    To assist investigators to locate and detain wanted persons and associates by tactical methods.

c)    To assist in provision of ongoing policing of Palm Island and to provide security and protection of QPS employees and property on Palm Island.

5.    Legislative Authority

Is there a warrant in existence: Yes -    No X    Pending -

Warrant type: P.S.P.A. Declaration

7.    Intelligence

The intelligence for this application is accurate as at 1400 on 26/11/2004.

How has the intelligence been verified?

Intelligence will be collected and provided as it becomes available.

336    In addition to the date of 26 November 2004 given on the front page, the form is signed by DI Webber with a time and date of 2 pm on 26 November 2004 written next to his signature. Beneath DI Webbers signature is a signed statement from Superintendent Casey of the Specialist Services Branch, Operations Support Command recommending to Chief Superintendent Henderson of Operations Support Command that the request be granted. Beneath that recommendation is a second signed statement from CS Henderson to Deputy Commissioner Conder, which again recommends that the request be granted and states:

Members of the BNE + FNR SERT to support PSRT in a crowd management role. To have less lethal capabilities i.e. taser, OC spray + bean bag rounds. Propensity for violence exhibited - police rifle missing.

337    Beneath CS Hendersons recommendation is an authorisation for the deployment of SERT signed by DC Conder. The recommendation from Superintendent Casey to CS Henderson, the recommendation from CS Henderson to DC Conder, and DC Conders authorisation for the deployment of SERT are each dated 14 December 2004.

338    In cross-examination, DI Webber accepted that an uninitiated reader would mistakenly think, based on the dates on the form, that he had requested the deployment of SERT in writing on 26 November 2004 when this was not the case. He also gave evidence that he typed the document himself. He could not recall exactly when he signed it, but when shown a memorandum dated 9 December 2004 that he wrote recommending that the form be forwarded to the Assistant Commissioner, Operations Support Command, he agreed that he must have signed it at some point between 29 November and 9 December 2004. When asked why he had completed the form quite some time after the events referred to in it, and why he had backdated the form to 26 November 2004, DI Webbers evidence was that the form was for record purposes. It was for filing purposes. It wasnt an action document. He also agreed that by the time he completed the form he knew that no armed offenders had been arrested on Palm Island, despite the statement on the form that A number of armed offenders will need to be apprehended.

339    There are a number of inaccuracies in what DI Webber wrote on this form, some serious. There is no evidence before the Court of many of the assertions he makes in it, including no evidence from him about those matters. The document contains matters that DI Webber clearly did not know on Friday afternoon when a decision was made to deploy SERT to the island.

340    There is little if any evidence to support the proposition that the document completed by DI Webber reflects the process by which the request to deploy SERT was made and the decision to deploy SERT was taken. Indeed it is unclear whether there even was a request or whether one or more QPS officers simply decided SERT would be deployed. The evidence of the SERT operatives who were witnesses in the proceeding does not shed any further light on the question, although they did make clear that they were mobilised to travel to Palm Island on the afternoon or early evening of Friday, 26 November 2004. Again, this is an area of evidence about which the respondents appear to have consciously decided to remain silent. The fact that the deployment of SERT is not specifically pleaded as a contravention of s 9 of the RDA is no explanation: SERTs actions while on Palm Island were the subject of detailed pleading and I infer that the absence of evidence from the respondents about how SERT came to be on the island is the result of a forensic choice.

341    By the time SERT commenced its operation early on the morning of Saturday, 27 November 2004, there were 14 SERT officers and seven PSRT officers on Palm Island, and another four from each team arrived during the day, making a total of 18 SERT officers and 11 PSRT officers who were sent to Palm Island over the 24-hour period.

342    Other police actions were also quickly implemented. A police headquarters was established at the local high school, Bwgcolman Community School. Classrooms were used for various planning and interview purposes, and QPS officers also slept in them. Communications to and from Palm Island came through this headquarters by telephone and fax, although at least initially there was no police computer system in operation there.

343    The local school bus from St Michaels Catholic Primary School was commandeered for police use. This was the subject of specific allegations by the applicants, to which I return in the Resolution section. On the Friday (26 November 2004), despite the emergency declaration, the QPS arranged for a ferry to be available from Palm Island to Townsville. Some teachers and service providers on the island left Palm Island on this ferry. There was an issue in this proceeding about who was able to leave the island, and whether only non-Aboriginal people were able to leave, or were informed there was a way they could get off the island if they were fearful for their safety. The QPS also arranged for the evacuation of some patients (including some Indigenous patients) from the Palm Island hospital to Townsville by Queensland Emergency Services helicopter. The evacuation of some patients can be seen on the video footage in evidence.

344    Between 1.45 pm on 26 November 2004 and 1.30 pm on 27 November 2004, all commercial flights to and from Palm Island were suspended. During that period, all persons on Palm Island were unable to leave the island on commercial flights. In that respect, the arrangements by the QPS for the special ferry departure assumed particular significance. It does not appear to have been considered whether there would be Palm Islanders in Townsville who might, on hearing of the situation, have wanted to return to their families on Palm Island. In any event, no arrangements were made for them to do so and, as I have noted, in fact the opposite occurred and the island was shut down.

345    Mr Campbell gave evidence that, on the evening of 26 November 2004, he and DS Robinson started formulating, like, a master list of persons of interest or suspects in relation to the protests and fires. This led, it appears, on the evening of Friday, 26 November 2004, to the formulation of an action plan about how those suspected of involvement in the protests and fires would be identified and apprehended. DI Webber was one of the officers responsible for formulating this plan, together with Inspector Underwood and Inspector Kachel.

346    The plan was as follows. It does not appear to have been committed to writing other than on a whiteboard at the school, where (as I have noted above) the QPS operations were based. Photos of the suspects, their addresses and their names, were put up on the boards. DS Robinson was to identify the addresses of interest and provide them to the SERT and PSRT officers; SERT and PSRT officers were to go to each address of interest with DS Robinson; DS Robinson was to enter each residence and identify persons of interest; and DS Robinson and the SERT and PSRT officers would apprehend the person or persons of interest with the minimum force necessary, secure the person or persons, and then take them from the residence. The action plan noted that, if doors were locked and secured, SERT would use force to gain entry. Other occupants within the dwellings were not to be disturbed, if possible. The team would then move on to the next address. I note that the evidence of the plan left it unclear as to who would be the arresting officer. The identity of the arresting officer is a matter I deal with in the Resolution section below.

347    DSS David Miles, a QPS officer stationed in Townsville, was responsible for compiling a list of persons to be arrested. A/AC Wall, also in Townsville, approved the list. How closely A/AC Wall was involved in formulating the whole action plan is unclear, and it is unclear whether he approved the whole plan.

The arrests, searches and entries on 27 and 28 November 2004

348    The arrests, searches and entries began at 5 am on the morning of 27 November 2004. The evidence showed that SERT teams would usually operate earlier in the morning than 5 am often more like 3 am in order to optimise the chances of suspects being asleep. The evidence was that, because it was clear some or all of the houses would be occupied by other people, including women and children, it was decided that these entries and searches would start somewhat later in the morning.

349    In any event, at least some of those whose houses were to be entered and searched were expecting to be arrested. That was certainly the case with Mr Wotton. He had told his partner and family the night before that he expected to be arrested on the Saturday, and that the police would come for him. There is no evidence he realised a SERT team would be sent to apprehend him, nor that he anticipated being apprehended in the way he was.

350    The arrests, entries and searches were conducted between approximately 5 am and 8.10 am on 27 November 2004; between approximately 12 pm and 12.15 pm on 27 November 2004; between approximately 6.15 pm and 6.35 pm on 27 November 2004; and periodically during the morning of 28 November 2004.

351    The following properties were entered and searched:

(1)    The Wotton house, in the Farm area of Palm Island, at around 5 am on 27 November 2004. Mr Wotton was apprehended there. A/S Kruger tasered Mr Wotton in the course of the arrest.

(2)    The Clay house, also in the Farm area, at 5.10 am. The police were looking for Shane Robertson but he was not apprehended there.

(3)    The Norman house, also in the Farm area, at 5.15 am. The police were looking for a juvenile offender (whose identity is protected). The juvenile offender was not apprehended but another target, Garrison Sibley, was apprehended.

(4)    The Parker house, also in the Farm area, at 5.25 am. The police were looking for Russell Wayne Parker (Russell Parker Senior) and he was apprehended there.

(5)    The Bulsey house, at 5.45 am. The police were looking for David Bulsey and he was apprehended there. Mr Bulsey was not fully clothed when he was apprehended.

(6)    The Poynter house, in the Top End area, at 6 am. The police were looking for Lincoln Poynter and Jason Poynter, but neither was apprehended there. The evidence does not reveal when Lincoln Poynter was arrested, but he was subsequently charged with and pleaded guilty to rioting.

(7)    Berna Poynters house, also in the Top End area, at 6.02 am. The police were looking for Jason Poynter, but he was not apprehended there.

(8)    The Walsh house, in the Butler Bay area, at 6.05 am. The police were looking for Jason Poynter, but he was not apprehended there.

(9)    The Clumpoint house, also in the Butler Bay area, at 6.15 am. The police were looking for John Clumpoint and he was apprehended there.

(10)    The Obah unit, also in the Butler Bay area, at 6.25 am. The police were looking for Jason Poynter, but he was not apprehended there. Mr Poynter was proving somewhat elusive.

(11)    The Barry House, in the Top End area, at 6.35 am. The police were looking for Jason Poynter, but he was not apprehended there. The police apprehended Solomon Nona on an outstanding warrant that was unrelated to the events of 26 November 2004. Mr Nona was not on the QPS list of targets.

(12)    Alberta Poynters house, also in the Top End area, at 6.40 am. The police were looking for Jason Poynter. Jason Poynter was not apprehended but another target, Lance Poynter, was apprehended there.

(13)    The Sibley house, in the Bottom End area, at 8 am. The police were looking for Shane Robertson and he was apprehended there.

(14)    The Nugent house, in Dee Street, at 12 pm. The police were looking for a Ruger Mini-14 rifle that was believed to be missing from the police barracks. The rifle was not found at the house, and in fact it was still locked in a cupboard in the police barracks, where it was found on or about 8 December 2004.

(15)    Agnes Wottons house at 6.15 pm. The police were looking for Richard Poynter and he was apprehended there. Mr Poynter was in the shower at the time he was apprehended.

(16)    The Blackman/Oui house, in the Butler Bay area, at 6.30 pm. The police were looking for William Blackman Senior but he was not apprehended there. Mr Blackman saw the police coming and ran from his house in an attempt to lead them away from his family. He escaped, but he subsequently turned himself in later that night at the school, where he was arrested.

(17)    The Biara house, in the Cooktown area, at 5.20 am on 28 November 2004 and again at 4.45 am on 29 November 2004 (although there was very little evidence about the latter). The police were looking for Russell Edward Elias Parker (Russell Parker Junior) but he was not apprehended during either search.

(18)    The Pearson house, at 5.36 am on 28 November 2004. The police were looking for Russell Parker Junior but he was not apprehended there.

352    The final operation was conducted at Wallaby Point at 6.20 am on 29 November 2004. The police were looking for Russell Parker Junior and Robert Nugent and both were apprehended there.

353    The applicants make a series of allegations about the conduct of the entries and searches, and I make findings on those allegations in the Resolution section. Several matters should be noted here.

354    First, none of the arrests (with the exception of the arrest of Mr Nona) were made with a warrant. Nor were warrants obtained for the entries and searches of the houses.

355    Second, the evidence is that the two primary suspects after the protests and fires were Lex Wotton and Erykah Kyle. Ms Kyles name was later removed from the list of wanted persons and she was not arrested or charged at all in the course of the police operation. There is no explanation in the evidence for why that occurred, or what grounded the original suspicion of her as a prime suspect.

356    Third, one of the targets was a 13-year-old boy. SS McKays evidence was that in his career of some 24 years he could not recall ever being sent as a SERT team member to apprehend a 13-year-old. I return to this below.

357    Fourth, women, children, and men who were not suspects were present in many of the homes that were entered and searched. Evidence was given by nine of them. There is no doubt those who gave evidence were terrorised and permanently scarred by what happened to them. I accept that similar effects are likely to have been suffered by some who did not give evidence. The disproportionate nature of the police response, and the manner in which the entries and searches were inevitably conducted once it had been decided that SERT would be used to conduct them, has had long lasting consequences for many members of the Palm Island community.

358    Fifth, there is some disputed evidence about other conduct engaged in by SERT and, or alternatively, PSRT while on the island, such as marching in groups down residential streets. These matters are contested and I deal with them below.

359    Finally, the manner in which the SERT and PSRT officers were armed and dressed should be noted. It was a key feature of the evidence of group members who were terrified by the entries and searches. Each SERT officer was wearing a dark blue police uniform with a ballistic vest and a load-bearing over-vest. Each officer wore a ballistic helmet and a fire retardant balaclava (which covered his face), as well as goggles. The SERT officers were equipped with gas masks and sound and flash distraction devices. As their primary weapon they were armed with assault rifles with light sources and they had as secondary weapons a pistol also with a light source. Officers also carried oleoresin capsicum (OC) spray, a baton and handcuffs. Some SERT officers were further equipped with tasers (the model of which has since been superseded) and what was described as method of entry equipment for breaking down doors and the like if necessary, together with a less lethal shotgun and extended range impact munitions. Inspector McKay gave the following evidence about extended range impact munitions and the use of a less lethal shotgun:

An extended range impact weapon gives you that ability from an extended range. For example, if someone is armed with an edged weapon like a knife, they’re – initially – the initial teaching was that it was – you had to be 21 feet away from the person. Then it was 10 metres, and now the – the teaching is there’s no safe distance being away from someone armed with an edged weapon. So obviously, inappropriate for you to move close enough to be able to strike someone with a baton if someone is armed with an edged weapon, but with an extent – but if you had that ability to strike them in the same way as you would with a baton from an extended range using extended range impact weapons, then that’s where the benefit of that capability comes in. So, currently within the service we have that ability in a 12 gauge capacity which is a shotgun round. Now, the munitions come in a variety of manners. Some of them are a canvas sack that is filled with lead shot that fires from the weapon, strikes the person and causes pain and incapacitation, hopefully, and getting them to stop what they’re doing.

360    The PSRT officers each had a dark blue police uniform, with a public order vest with (non-ballistic) arm and leg protection, a public order helmet with visor and flash hood, and cut resistant gloves. The PSRT officers were equipped with riot shields and pistols, as well as OC spray, baton and handcuffs. One of the key differences between PSRT and SERT was that the former did not wear balaclavas.

361    After the arrests were complete (except for those at Wallaby Point), at 8.10 am on Sunday, 28 November 2004 DI Webber revoked the emergency declaration in relation to Palm Island. The length of time during which the Palm Island community was subject to the emergency declaration is also a matter challenged by the applicants as unlawful race discrimination. The revocation meant that ordinary travel between the island and the mainland could resume, and it also led to the departure of most of the additional police officers then on Palm Island. Inspector Dinis evidence was: that there was still a command post on 29 November 2004 and that on that day the command group was doing rosters, organising resources, getting, you know, supplies to the island, flying police over, taking police out and that the police were [m]aintaining a presence at four or five other sites around the island. He also said that he himself left the island on 30 November 2004 for a debrief and returned to the island on 1 December 2004, staying for approximately a week. On any view, there appeared to be greatly reduced concerns on behalf of the QPS about the need for extra policing in the Palm Island community, or about police safety.

362    The evidence does not disclose when those non-Aboriginal people (for example, teaching staff from the schools) who left the island on the specially arranged ferry returned to the island. The evidence shows St Michaels did not get its school bus back for approximately a week: why it took that long is not explained in the evidence.

Subsequent events, including court proceedings and inquiries

363    The applicants RDA case substantially ends at this point in the chronology, and accordingly, there was very little evidence about the aftermath on Palm Island after the SERT and PSRT teams left. Some of the applicants witnesses gave evidence about the charges against various individuals and their outcomes. Ultimately, those matters were agreed between the parties and I set them out below.

364    There was, however, evidence about the aftermath of these events insofar as official investigations and inquiries were concerned, of which there were several.

365    On 27 September 2006, Acting State Coroner Christine Clements delivered her report in her inquest into the death of Mulrunji. Acting State Coroner Clements was appointed to continue the inquest after the first coroner – State Coroner Barnes – recused himself. In her report, Acting State Coroner Clements concluded that the actions of SS Hurley caused Mulrunjis fatal injuries. However, the whole of Acting State Coroner Clements finding as to how Mulrunji died was set aside on 16 June 2009 by the Queensland Court of Appeal on the basis that her finding was not reasonably open on the evidence: Hurley v Clements [2009] QCA 167; [2010] 1 Qd R 215 at [48] (the Court). The Court ordered that the inquest be re-opened by another coroner: at [57].

366    On 19 December 2006, in response to comments made by Acting State Coroner Clements in her finding (and before the finding was set aside), the Commissioner of Police formed an Investigation Review Team (IRT) to examine in detail any criticisms of the QPS and its members arising from the inquest and the Acting State Coroners finding. The Commissioner also requested the CMC to review the internal investigation. In November 2008, the IRT delivered the three-volume report of its internal investigation, entitled Palm Island Review, to the CMC.

367    On 5 February 2007, SS Hurley was charged with manslaughter and common assault. By this time, the charges against some of the persons arrested for offences relating to the protests and fires on 26 November 2004 had been discontinued or finalised, while the charges against others were still ongoing.

368    In June 2007, SS Hurley was acquitted by a jury of the charges against him.

369    On 29 May 2006 (that is, before any inquest findings had been delivered and before SS Hurley was charged), Chief Superintendent Wall (who had been Acting Assistant Commissioner in November 2004) recommended that a number of officers involved in the events on Palm Island should receive awards ranging from a Commissioners Certificate or higher award to an Assistant Commissioners Certificate or Letter of Appreciation. Those recommended for awards included: all 19 of the officers who were in the police station when the protests and fires began, with Inspector Richardson, SS Whyte and DS Robinson identified as deserving particular praise; five officers who were involved in the subsequent identification of suspects, including DI Webber; eight officers who were in the Major Incident Room in Townsville, including DSS Kitching; and several officers involved in the overall strategic management of the events, including CS Wall himself. In cross-examination, each of DI Webber, Inspector Kitching and Inspector Whyte confirmed that he received a framed award as a result of those recommendations, with Inspector Kitching and Inspector Whyte stating that their awards were conferred at a formal ceremony. Mr Campbells evidence was that he did not receive an award despite being recommended for one. On 3 November 2008, DS Robinson was awarded the Queensland Police Service Valour Award, for his conduct in responding to the events of 26 November 2004. This award is the highest commendation the QPS can bestow on an officer, for acts of bravery in hazardous circumstances. QPS officers who had been involved in the events on the island, including some of those called as witnesses, also subsequently received promotions. The applicants rely on those facts as part of their damages case and I address them in the damages section of these reasons.

370    In total, 27 people were charged with offences in connection with the events of 26 November 2004. Of those, 16 people were convicted of at least one offence and the remaining 11 were either acquitted or had their charges withdrawn.

371    The agreed facts concerning the charges laid against individuals who were eventually convicted of at least one offence were as follows:

(1)    Cedric Barry was charged with: (i) entering a dwelling and committing an indictable offence; (ii) stealing by looting in civil unrest; and (iii) entering a dwelling with intent. The first charge was withdrawn and Mr Barry pleaded guilty to the latter two charges. On 9 December 2004, he was sentenced to 15 months imprisonment on the second charge and 6 months imprisonment on the third charge.

(2)    George Coolwell was charged with: (i) entering a dwelling and committing an indictable offence; (ii) stealing by looting in civil unrest; and (iii) entering a dwelling with intent. The first charge was withdrawn and Mr Coolwell pleaded guilty to the latter two charges. On 1 December 2004, he was sentenced to 2 months imprisonment on the second charge and 6 months imprisonment on the third charge, suspended for 2 years after 4 months.

(3)    Terrence Kidner was charged with three counts of rioting with damage and two counts of arson of a structure or building. A nolle prosequi was entered for two of the rioting with damage counts and both of the arson counts. Mr Kidner pleaded guilty to the third rioting with damage count and on 8 May 2007 he was sentenced to 4 years imprisonment suspended for 4 years after 16 months (with 166 days of pre-sentence custody).

(4)    Alissa Norman was charged with rioting with damage. She pleaded guilty and on 28 July 2006 she was sentenced to 12 months on an intensive correction order, but on appeal this was increased on 8 December 2006 to 18 months imprisonment with a parole release date of 8 April 2007.

(5)    A juvenile whose identity is protected under the Youth Justice Act 1992 (Qld) was charged with three counts of rioting with damage. A nolle prosequi was entered for two of the counts and the juvenile pleaded guilty to the third count. On 28 July 2006, the juvenile was sentenced to 150 hours of community service.

(6)    Robert Nugent was charged with: (i) rioting with damage; (ii) arson of a structure or building; and (iii) stealing by looting in civil unrest. A nolle prosequi was entered for each of the first two charges and Mr Nugent pleaded guilty to the third charge. On 1 March 2007, he was sentenced to 6 months imprisonment with 125 days of pre-sentence custody and a parole release date of 1 March 2007.

(7)    Russell Parker Junior was charged with: (i) two counts of arson of a structure or building; (ii) one count of rioting with damage; and (iii) one count of stealing by looting in civil unrest. A nolle prosequi was entered for each of the arson charges and for the rioting with damage charge. Mr Parker pleaded guilty to the looting charge and on 28 July 2006 he was sentenced to 6 months imprisonment (with 9 days of pre-sentence custody).

(8)    Russell Parker Senior was charged with two counts of rioting with damage. A nolle prosequi was entered for the first count and he pleaded guilty to the second count. On 28 July 2006, he was sentenced to 18 months imprisonment suspended for 3 years after 6 months (with 9 days of pre-sentence custody), but on appeal this was increased on 8 December 2006 to 2 years imprisonment with a parole release date of 8 April 2007.

(9)    Jason Poynter was charged with two counts of rioting. A nolle prosequi was entered for one count and he pleaded guilty to the other count. On 28 July 2006, he was sentenced to 12 months on an intensive correction order (with 8 days of pre-sentence custody), but on appeal this was increased on 8 December 2006 to 15 months imprisonment with a parole release date of 8 May 2007.

(10)    Lincoln Poynter was charged with two counts of rioting. A nolle prosequi was entered for one count and he pleaded guilty to the other count. On 24 August 2006, he was sentenced to 4 months imprisonment suspended for 1 year after 10 days (having already served 10 days of pre-sentence custody).

(11)    David Shepherd was charged with rioting with damage. He pleaded guilty and on 1 March 2007 he was sentenced to 18 months imprisonment with a parole release dated of 1 July 2007 (with 6 days of pre-sentence custody).

(12)    Garrison Sibley was charged with: (i) rioting with damage; (ii) arson of an aircraft or motor vehicle; and (iii) stealing by looting in civil unrest. A nolle prosequi was entered for each of the first two charges and Mr Sibley pleaded guilty to the third charge. On 28 July 2006, he was sentenced to 6 months imprisonment (with 88 days of pre-sentence custody).

(13)    Anthony Thompson was charged with wilful damage and pleaded guilty. On 21 June 2006 he was sentenced to 80 hours of community service.

(14)    Joseph Watson was charged with: (i) entering a dwelling and committing an indictable offence; (ii) stealing by looting in civil unrest; and (iii) entering a dwelling with intent. The first charge was withdrawn and Mr Watson pleaded guilty to the latter two charges. On 1 December 2004, he was sentenced to 2 months imprisonment on the looting charge and 6 months imprisonment suspended for 2 years after 4 months on the enter dwelling with intent charge.

(15)    Thomas Wilson was charged with wilful damage and pleaded guilty. On 21 June 2006, he was sentenced to 80 hours of community service.

(16)    It was agreed that Lex Wotton was charged with: (i) one count of wilful damage; (i) four counts of rioting with damage; (ii) three counts of arson of a structure or building; (iii) two counts of rioting; and (iv) one count of arson of an aircraft or motor vehicle. It was agreed that the prosecution offered no evidence on the wilful damage count and a nolle prosequi was entered for each of the other counts except for one count of rioting with damage, to which Mr Wotton pleaded not guilty. After a trial, Mr Wotton was found guilty by a jury. On 7 November 2008, he was sentenced to 6 years imprisonment with 110 days of pre-sentence custody and a parole eligibility date of 18 July 2010.

372    The provisions of the Criminal Code relevant to the charges laid are set out at [195] above. When a comparison is undertaken between these provisions and the agreed facts, some difficulties emerge. The words “injuring” and “damage” appear in s 66, while s 65 deals with rioting that “demolishes” or “destroys” the things to which it refers. It is the latter provision which carries life imprisonment. The agreed facts use the words “injuring” and “damaging” when referring to various charges. They do not use “demolish” or “destroy”. The charge with which Mr Wotton was convicted is described in the agreed facts as “Rioters Injuring Building or Machinery etc”, which can only be a reference to rioting with damage. However, having regard to both the sentencing remarks for Mr Wotton (which were in evidence) and the High Court’s decision in Wotton v Queensland [2012] HCA 2; 246 CLR 1 at [4], it seems clear that Mr Wotton was charged with and convicted of rioting with destruction under s 65 of the Criminal Code, not the lesser offence of rioting with damage under s 66. Further, it is clear from Bulsey v State of Queensland (unreported, Sup Ct, Qld, North J, 20 February 2015) at [48] (Bulsey trial judgment) that David Bulsey was also charged with rioting with destruction contrary to s 65, although the agreed facts do not reflect this. Notwithstanding these discrepancies, I have inferred that, where the agreed facts use the word “damaging or “injuring” they refer to the lesser offence of rioting with damage under s 66. I have therefore taken it that it was this offence with which persons were charged in connection with the protests and fires, except for the charge with which Mr Wotton was convicted and which was laid against Mr Bulsey, about which there is other and, I find, better evidence.

373    The charges that were laid against individuals who were ultimately not convicted of any offence were as follows:

(1)    William Blackman was charged with three counts of rioting with damage. A nolle prosequi was entered for two of the counts and on 5 March 2007 he was found not guilty of the third count.

(2)    Dwayne Blanket was charged with three counts of rioting with damage. A nolle prosequi was entered for two of the counts and on 5 March 2007 he was found not guilty of the third count.

(3)    John Clumpoint was charged with three counts of rioting with damage. A nolle prosequi was entered for two of the counts and he pleaded not guilty to the third count. On 5 March 2007, he was found not guilty of the third count.

(4)    A juvenile offender whose identity is protected under the Youth Justice Act was charged with rioting with damage and with arson of a structure or building. On 28 July 2006, a nolle prosequi was entered for each charge.

(5)    Lester Parkinson was charged with rioting with damage and with arson of a structure or building. On 28 July 2006, a nolle prosequi was entered for each charge.

(6)    Lance Poynter was charged with three counts of rioting with damage. A nolle prosequi was entered for two of the counts and he pleaded not guilty to the third count. On 5 March 2007, he was found not guilty of the third count.

(7)    Richard Poynter was charged with rioting with damage. On 28 July 2006, a nolle prosequi was entered for the charge.

(8)    Shane Robertson was charged with rioting with damage and two counts of arson of a structure or building. On 28 July 2006, a nolle prosequi was entered for each charge.

(9)    Fleur Wotton was charged with rioting with damage and with arson of a structure or building. On 28 July 2006, a nolle prosequi was entered for each charge.

(10)    Agnes Wotton was charged with rioting with damage and with arson of a structure or building. On 28 July 2006, a nolle prosequi was entered for the charge.

(11)    As set out by North J in the Bulsey trial judgment at [48], David Bulsey was initially charged with unlawful assembly contrary to s 62 of the Criminal Code, but that charge was withdrawn and he was charged instead with rioting with destruction under s 65 of the Criminal Code, which carried a maximum sentence of life imprisonment. The prosecution subsequently conceded in committal proceedings that it did not have a case against Mr Bulsey and he was discharged: see Bulsey trial judgment at [16].

374    Mr Wotton brought a constitutional challenge to the bail conditions imposed on him, which required him not to attend public meetings on Palm Island without the prior approval of a corrective services officer, not to speak to or have any interaction whatsoever with the media, and not to receive any direct or indirect payment or benefit from the media: see Wotton v Queensland [2012] HCA 2; 246 CLR 1. That challenge was unsuccessful, although the Parole Board removed the condition about speaking with the media during the currency of Mr Wottons action in the High Court.

375    No member of the QPS, other than SS Hurley, was charged with a criminal offence in relation to Mulrunjis injuries or death, the subsequent investigation, the entries and searches of the houses or the property damage arising from them.

376    On 14 May 2010, some three years after SS Hurleys acquittal, the Coroner (Deputy Chief Magistrate Hine) found that Mulrunji died of fatal injuries which resulted from some force to his abdomen. Deputy Chief Magistrate Hine found that these injuries occurred either accidentally as Mulrunji and SS Hurley fell into the police station, or by deliberate action of SS Hurley in the few seconds after they landed. He concluded that it was not possible to ascertain whether the force was deliberately inflicted or accidentally applied.

377    In reaching those conclusions, Deputy Chief Magistrate Hine made the following findings. First, that Mulrunji was not suffering from any injury when the police van arrived at the station (at [95] of the findings). Second, that Mulrunji was seriously intoxicated at that time, with a blood alcohol level of 292mg/100mL (0.292), and therefore his co-ordination would have been significantly affected such that he would have been less able to protect himself in a fall (at [104]). Third, that the medical evidence established that Mulrunjis internal injuries were likely to have been caused by a single blow involving the application of a very considerable force to the torso while the torso was otherwise immobilised against an object or surface such as the floor, rather than being caused by several blows (at [110]). Fourth, that on the medical evidence alone (before taking other evidence into account) it could not be excluded that the single blow might have been accidentally inflicted: (at [110], [132]). Fifth, that Mulrunji struck SS Hurley while SS Hurley was attempting to remove him from the police van (at [124]) and that SS Hurley responded by striking Mulrunji (at [179]). Sixth, that SS Hurley fell onto Mulrunji as they came through the door of the police station (at [354]). Seventh, that Mulrunjis internal injuries could have been caused by the application of direct crushing pressure by SS Hurleys elbow, shoulder or hip during the fall and were not necessarily caused by SS Hurleys knee (at [358]-[359]). Eighth, that there was no medical evidence to suggest that the internal injuries were caused by punching, kicking or stomping (at [360]). Ninth, that it could not positively be concluded that SS Hurley deliberately applied the force that caused the internal injuries (at [363]). Tenth, that it also could not positively be concluded that the force that caused the internal injuries was applied accidentally (at [367]). Eleventh, that after the fall SS Hurley punched Mulrunji three times to the face before dragging him limp into the cells (at [365]).

378    Deputy Chief Magistrate Hine summarised his finding about how Mulrunji died as follows:

The deceased died of fatal injuries which resulted from some force to the abdomen of the deceased either accidentally as the deceased and Christopher Hurley fell into the Palm Island watchhouse or by deliberate actions of Hurley in the few seconds after they landed, but it is not possible to ascertain whether the force was deliberately inflicted or accidentally suffered. The four fractured ribs, liver laceration and portal vein rupture occurred as a result of this single injury.

379    In June 2010, shortly after the Deputy Chief Magistrate handed down his finding, the CMC handed down a report entitled CMC Review of the Queensland Police Services Palm Island Review. It was critical of the QPS. It found the evidence was insufficient to support consideration of any criminal prosecution proceedings, but it recommended disciplinary proceedings against a number of individual officers: DI Webber; DSS Kitching; DS Robinson; and Inspector Williams. None of these officers were disciplined.

380    On 19 August 2010, the Supreme Court of Queensland declared that the Commissioner of Police was disqualified from giving any personal consideration to commencing disciplinary proceedings but was not prevented from delegating the consideration of the commencement of disciplinary proceedings to a prescribed officer as defined in s 7.4 of the PSA Act: see Kitching v Queensland Commissioner of Police [2010] QSC 303. As the title of this proceeding suggests, it was commenced by Inspector Kitching. DS Robinson was the second applicant.

381    The Commissioner delegated to Deputy Commissioner Rynders as a prescribed officer the task of considering the recommendations in the CMC Report and determining any disciplinary issues.

382    The CMC, by letter dated 10 September 2010 to the Commissioner, advised that the matter was considered appropriate for consideration at the Deputy Commissioner level.

383    On 7 January 2011, DC Rynders handed down a 405-page report entitled Report in Response to the CMC Review of the Queensland Police Services Palm Island Review”’. In her report, DC Rynders decided that the key officers involved should not face disciplinary proceedings, but should be given what was called managerial guidance in relation to some (but not all) of their conduct on Palm Island during the period 19 to 28 November 2004. That finding applied to Inspector Williams, DI Webber and DSS Kitching. It appears DC Rynders concluded that not even managerial guidance should be given to any other officers, including, somewhat remarkably it might be thought, SS Hurley. This might be explained on the basis that the scope of DC Rynders report was determined by the CMC review, which focused on certain officers and limited its examination of SS Hurleys conduct pending legal proceedings which included the third inquest, as the IRT had done before it in the Palm Island Review. Nevertheless, given SS Hurleys acquittal some four years earlier, I remain of the view that the failure of DC Rynders report to deal with SS Hurleys conduct is something of a glaring omission.

384    Copies of the documents directed towards these three officers were in evidence, although not copies which had any responses from those officers filled in at points in the document where a response was suggested. Aside from reciting the sequence of events leading up to the giving of managerial guidance, the actual managerial guidance appears to be contained in several paragraphs in each document. I shall take the document directed at DI Webber as an example (at paragraphs 9 to 15 of the document):

By statute, the Commissioner has the prescribed responsibility to ensure the Service is managed efficiently and effectively in accordance with law and there are expectations by the broader community that police officers undertake their official duties with due diligence having regard to legislation, hence the promulgation of Service policy and procedures.

You have an obligation to the Service and wider Queensland community to perform your official duties ethically and professionally at all times. There is no room for complacency. Service policy and procedures exist to enhance public confidence in our day-to-day official duties. Police officers must perform their duties with a high degree transparency and be accountable for their actions. In your case, and despite this incident having occurred some time ago, still leaves some questions concerning the integrity of the initial investigation on Palm Island in November 2004 at the expense of the reputation of the Service, its broader membership and community confidence.

You hold the rank of Inspector and obviously have a supervisory role within your work environment. I have no doubt that you have learnt from your failings and the perceptions it has created; I sincerely hope that you will take positive steps in the future to avoid any similar adverse perceptions. As a supervisor, your reputation is at stake, you have the responsibility to ensure your subordinates conduct their official duties appropriately and comply with Service directions and guidelines. Should there be a further or similar occurrence of the kind particularised in the Direction Notice, you render yourself liable to disciplinary action.

Do you fully understand the significance of your failings and the likely consequences that may follow?

RESPONSE

Before I conclude, is there anything you wish to say?

RESPONSE

You have been given managerial guidance and I will notify the Commissioner and the Assistant Commissioner, Ethical Standards Command accordingly. I consider the matters against you arising from the Review of the Queensland Police Service’s Palm Island Review now finalised.

385    The CMC could have, but did not, appeal against or seek review of the findings of DC Rynders in her report.

386    The evidence revealed, and many of the parties witnesses accepted, that there have been some positive changes on Palm Island since the events of November 2004, due to increased focus on education, social and cultural needs, and building a stronger community. Nevertheless, as Professor Altmans evidence demonstrated, it remains one of the most disadvantaged communities in Queensland. It seems an obvious but necessary observation that the amount of public legal, financial and human resources which have been spent on the investigations and inquiries I have recounted – if applied instead to Palm Island itself – could have fundamentally and permanently transformed the lives of the entire Palm Island community.

387    In 2007, David Bulsey and his partner, Yvette Lenoy, commenced a proceeding in the Supreme Court of Queensland claiming damages (including aggravated and exemplary damages) for the tort of trespass to the person (assault and false imprisonment, and in Mr Bulseys case also battery) in connection with Mr Bulseys arrest and detention on 27 November 2004. Their claims were dismissed at first instance (see Bulsey trial judgment), but succeeded on appeal: see Bulsey v State of Queensland [2015] QCA 187 (Bulsey). The evidence at trial was that it was DSS Miles in the Major Incident Room in Townsville who had ultimately decided which persons should be arrested: Bulsey trial judgment at [46]. The evidence in this proceeding was less clear about precisely who made those decisions and I return to those matters below. In his leading judgment on the appeal in Bulsey, Fraser JA held (at [19]-[22]) that Mr Bulseys arrest was unlawful because the officers who apprehended Mr Bulsey did not reasonably suspect that he had committed an offence. His Honour held it was irrelevant whether DSS Miles in Townsville held such a suspicion. Mr Bulsey was awarded $165,000 in damages, including aggravated damages, comprising $60,000 for assault, battery and false imprisonment, $100,000 for false imprisonment after the wrongful arrest, and general damages of $5,000 for personal injury. Ms Lenoy was awarded damages of $70,000 for assault and false imprisonment. Interest was payable on both awards. I return to the Court of Appeal decision in more detail at [1305] below, as it is directly relevant to the applicants claims in this proceeding.

388    While the inquiries and investigations into the events of November 2004 continued over these seven or so years (if one excludes the Bulsey appeal – otherwise, the period is 11 years), other litigation was brought about the treatment of Aboriginal people on Palm Island. In May 2008, Ms Joan Maloney, another Palm Island resident, was found in possession of a bottle of bourbon and a bottle of rum in a car in a public place on Palm Island. She was charged and convicted in the Queensland Magistrates Court of an offence under s 168B of the Liquor Act 1992 (Qld). At the time of the offence, just as at the time of the events in November 2004, there were restrictions on possession of alcohol in public places on Palm Island (and in other Aboriginal communities in Queensland) imposed by the Liquor Act and its associated regulations. Ms Maloney sought to have her conviction set aside on the basis that the relevant legislative and regulatory provisions were invalid under s 109 of the Commonwealth Constitution by reason of inconsistency with s 10 of the RDA. The High Court in Maloney [2013] HCA 28; 252 CLR 168 found that the legislative and regulatory provisions were a “special measure” within the meaning of that term in s 8(1) of the RDA, but a majority of the Court (French CJ, Hayne, Crennan, Bell and Gageler JJ, Kiefel J contra) found that if they had not been a special measure they would have been inconsistent with s 10 of the RDA for the reason that they had discriminatory effects on Ms Maloneys right to own property (that is, in substance, to possess liquor she had purchased). Maloney is an important decision in the consideration of some of the legal principles that are applicable to the applicants claims in this proceeding.

EVIDENCE ON CONTESTED ISSUES

Key participants in the events of November 2004 who were not called to give evidence

389    Some of the key people who feature in the narrative I have set out above were not called as witnesses in this proceeding. They include SS Hurley, DS Robinson, Inspector Williams, Inspector Richardson, Inspector Underwood, Inspector Kachel, Constable Steadman, Sergeant Leafe, PLO Bengaroo, the other SERT team members, Erykah Kyle, and David Bulsey. There were also people such as Constable Craig Robertson, who took video of the protests and fires that occurred on 26 November 2004, who were absent. I found it somewhat remarkable that neither DSS Miles nor A/AC Wall were called as witnesses. DSS Miles was the QPS officer who was responsible for identifying the suspects to be arrested. A/AC Wall had an overall command role and made such decisions as the one on Monday, 22 November 2004 to remove SS Hurley from the island. He was also the author of the 2006 memorandum in which a long list of QPS officers were recommended of a range of bravery, valour and service awards. This conduct, and the memorandum, were significant aspects of the applicants’ case and yet the author and apparent decision-maker was not called. There was no evidence adduced to explain his absence.

390    The applicants submit that in drawing inferences about whether the conduct was based on race, the Court can and should consider what they describe as the respondentselection not to call evidence that could potentially be relied upon to resist the drawing of adverse inferences about the racial basis for QPS conduct. The applicants rely on the following passage from the judgment of Menzies J in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 312:

where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

391    The respondents submit this rule does not operate to require a party to give cumulative evidence. Referring to JD Heydon, Cross on Evidence (9th Australian ed, LexisNexis Butterworths, 2013) at p 40, they submit that they were not required to explain or contradict any of the matters on which the applicants invite the Court to draw inferences, so the rule has no operation. Referring again to Cross on Evidence at p 38, the respondents submit the rule cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference.

392    I accept the respondents’ submissions in general. The applicants bear the onus of proof in this proceeding. How that burden was to be discharged was a matter for the applicants, and the respondents were not obliged to assist the applicants by providing witnesses whose evidence might fill any gaps in the applicants’ case. The “true complexion on the facts relied on as the ground for” an inference (see Jones v Dunkel at 308 (Kitto J)) may, or may not, have been revealed by the calling of one or more of the many QPS officers not called. In a case with as broad a factual base as this, where witnesses’ evidence ranged over so many events, a broad-based submission invoking Jones v Dunkel cannot succeed.

393    The Court takes the evidence before it and makes findings on the balance of probabilities accordingly. There may have been evidence before other courts, persons and entities examining these events which was not before this Court. There may have been evidence before this Court that was not before those other courts, persons and entities. The state of the evidence is the result of the parties’ forensic choices. The correct approach is set out in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 at [165] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led.

394    The respondents’ forensic choices about which individuals they chose to call as witnesses have had some consequences for my fact finding, but not as a result of the application of Jones v Dunkel. Rather, they have meant there is, in relation to some aspects of my fact finding, no countervailing evidence to be considered other than that upon which the applicants rely. The contemporaneous video evidence is one example: although the respondents tendered one piece of video footage, they led almost no evidence seeking to give any context to what could be seen in the video evidence, to contradict it, or to qualify it. That is true even of the video taken by Constable Robertson.

395    A similar observation can be made about the applicants’ forensic choices: on some matters there is insufficient evidence for the Court to be satisfied the applicants have discharged their burden of proof. For example, they alleged that QPS officers behaved in a ‘militaristic’ manner in the course of their activities on Palm Island following the protests and fires. While a substantial amount of evidence was led about the arrests, entries and searches that occurred in the course of the SERT operations, it was insufficient to prove on the balance of probabilities that the general behaviour of the police on Palm Island could be described as ‘militaristic’ (see [1267] below).

396    Ms Andrea Sailor gave a short explanation regarding why her mother, Erykah Kyle, did not give evidence in this proceeding. I need not set out that explanation: the respondents accepted that Ms Kyle was unable to give evidence. The Court has the benefit of contemporaneous video evidence of her speaking on many occasions, including an interview with her. Ms Kyle had a pivotal leadership role in the Palm Island community during these events. While it was also clear, from some of what can be heard in the contemporaneous video evidence, that some members of the Palm Island community were dissatisfied with the leadership she provided, for my own part I was impressed by how she worked to hold her community together at such a difficult time. The circumstances were especially difficult because Ms Kyle had lost a son in a death in custody situation. The video evidence also makes clear that Ms Kyle sought to engage with QPS officers on the island, albeit relatively unsuccessfully.

The documentary evidence

397    A wide range of documents, photographs, videos and audio recordings were in evidence, tendered principally by the applicants but also by the respondents. The documentary evidence includes:

(a)    video footage of Mulrunji in the watchhouse cell of the Palm Island Police Station on 19 November 2004, and the response of QPS officers when he was found dead;

(b)    transcripts, video recordings and witness statements from the interviews and re-enactments conducted by the QPS investigating officers on Palm Island on 19 and 20 November 2004 (and in Ingham on 21 November 2004);

(c)    documents relating to the coronial functions following Mulrunji’s death, including the Form 1 and preliminary autopsy report, as well as the final autopsy report dated 21 January 2005 and the findings of the coronial inquests which followed in 2006 and 2010;

(d)    videos depicting various public meetings held on Palm Island during the week of 22 November 2004;

(e)    videos depicting the protests and fires that occurred on Palm Island on 26 November 2004;

(f)    videos depicting media interviews with QPS officers from the week of 22 November 2004;

(g)    QPS media releases and news reports about the events on Palm Island in November 2004;

(h)    QPS executive and ministerial briefing notes about the situation on Palm Island in November 2004;

(i)    QPS logs and running sheets recording events on Palm Island between 19 November 2004 and 13 December 2004, including what was referred to in the running sheets as Operation CHARLIE CLOVER – ‘State of Emergency Palm Island’;

(j)    photographs depicting the planning and aftermath of the arrests, entries and searches, and depicting SERT and PSRT officers during the period of the entries and searches;

(k)    the OPM and related documents, such as the applicable versions of the Queensland Police Service Code of Conduct and the National Guidelines for the Police Use of Lethal Force and Deployment of Police in High Risk Situations;

(l)    documents relating to Managerial Guidance given to various QPS officers involved in the events on Palm Island;

(m)    reports of various bodies about the events on Palm Island, including the QPS’s November 2008 Palm Island Review and the CMC’s June 2010 CMC Review of the Queensland Police Service’s Palm Island Review;

(n)    various reports on policing in Aboriginal and Torres Strait Islander communities generally, including the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the regional report of that Royal Commission regarding Queensland;

(o)    witness statements of QPS officers involved in the events of November 2004, some taken at the time of the events and some taken afterwards;

(p)    sentencing remarks of the District Court of Queensland in relation to those persons who were charged with offences arising from the protests and fires that took place on Palm Island on 26 November 2004; and

(q)    audio of interviews conducted by DS Robinson on 28 and 29 November 2004 with persons affected by the arrests, entries and searches.

398    The video footage of witness interviews which were taken at the time (that is, on or around 19 November 2004) were taken largely by Constable Tibbey, who accompanied DI Webber to Palm Island on the afternoon of 19 November 2004. The witness statement made by Constable Tibbey for the purposes of the criminal trial of SS Hurley was in evidence in this proceeding. Constable Tibbey refers also to photographs he took, but they were not in evidence in this proceeding. No objection was taken to that statement and I am satisfied it provides the necessary proof of the authenticity and contemporaneity of the video footage and photographs taken by Constable Tibbey.

The witnesses called by the parties in this proceeding

399    My assessment of the witnesses in this proceeding is critical for some issues that must be determined and less critical for others. Much of the sequence of events that forms the basis of the applicants’ claims is not disputed, so that individual differences in accounts of those events are not, in my opinion, critical to the findings to be made. That is especially so when Palm Island community members and police officers were clearly approaching the sequence of events from such different perspectives, differently informed, with different priorities and concerns, and with different sets of assumptions. Generally, although their different perspectives informed their evidence, I did not see the differences as affecting the views I formed about the factual findings necessary for the purposes of s 9(1).

400    The issues where the witness evidence really matters were the following. First, my impression of the police officers did inform my findings about whether the pleaded conduct was based on race. That is not so much because individual officers exhibited behaviour, opinions or language which could be described as racist (although a few did). Rather it was because their oral evidence provided a clear picture of the perspective they brought to the discharge of their policing role and responsibilities on Palm Island during the claim period.

401    Second, the evidence of the witnesses from the Palm Island community had two particular impacts on my findings. The first is that their evidence, including how they presented as witnesses, assisted me to understand what it was like to be living on Palm Island during these events, and what the Palm Island community was like. It bore little resemblance to the perceptions exhibited by members of the QPS about the Palm Island community. The second is that the evidence of those witnesses who were still children during the entries and searches was profoundly affecting. I describe my impressions in more detail as I deal with each witness. The terror instilled in those witnesses who were children at the time of these events was palpable and continuing during their evidence in this proceeding.

402    I deal with the witnesses in the order in which they were called. Where I describe relationships between individuals, I use familial descriptors without distinguishing between biological and non-biological relationships. It seems to me this is consistent with how the Aboriginal witnesses described their relationships and, for the purposes of this proceeding, whether a relationship was biological or not was of no consequence. What matters was the existence of family, and extended family, relationships and living arrangements.

403    Although the respondents did test the accounts given by the applicants’ witnesses about the arrests, entries and searches, in my opinion the vast bulk of the eyewitness evidence should be treated as reliable. These individuals experienced something that was out of their normal range of experiences, and which terrified them. They have lived with those experiences ever since and in my opinion their recollections have remained good because of the heightened states induced by what they saw and experienced. I did not detect any particular exaggerations or reconstructions.

404    In contrast, the respondents either called no eyewitnesses, or they called officers who were physically distant from many of the events although present in the vicinity. An example is Inspector McKay, who was present during the arrests, entries and searches but did not go up to or into the houses. Of the SERT officers called (Superintendent Kruger and Sergeant Folpp), these men were giving evidence about events that occurred a long time ago, in circumstances where each of them had attended many other SERT callouts both before and after those events. In terms of detail, I am not satisfied their recollections would be as reliable as the applicants’ eyewitnesses. It did not strike me that either of these witnesses had found their task on Palm Island anything much out of the ordinary, and they did not appear to have any special recollections of it. They were able accurately to describe what they were trained to do in such situations, how they were trained to think, and therefore gave evidence about how they were likely to have behaved. That kind of evidence, as given by them, can be accepted. However where there is a direct conflict with the applicants’ eyewitnesses who were, so to speak, on the receiving end of the SERT conduct, I prefer the evidence of the applicants’ witnesses because in my opinion the uniqueness of those experiences for them means they are more likely to recall the events rather than reconstruct them. As I have said, it is my firm impression that what they experienced has stayed with them and has had lasting adverse effects on them.

405    There were, I regret to say, many leading questions asked of the applicants’ witnesses. The irony of that occurring in a trial where the applicants led expert evidence about the susceptibility of Aboriginal people to gratuitous concurrence should not be overlooked. Where I considered a witness’s evidence was affected by the leading nature of a question or questions, I have not given any weight to that evidence. The result is that the evidence of some witnesses, such as Mr Clumpoint, is not of high probative value. Nevertheless, there were large and important parts of much of the witness evidence for the applicants that were not affected by this problem.

The applicants’ witnesses

Tuesday, 22 September 2015

Ms Andrea Sailor

406    Ms Sailor has lived on Palm Island all of her life. She is the daughter of Ms Erykah Kyle, the former mayor of Palm Island, who features in much of the witness evidence and the video evidence from November 2004. At the time of giving her evidence, Ms Sailor was employed as a field officer for the Department of Corrective Services on Palm Island. Between 2002 and 2005, Ms Sailor was employed as a field officer with ATSILS on Palm Island. Her role at ATSILS included attending court, attending the watchhouse when a person was taken into custody, and sitting in on police interviews with clients in custody.

407    Ms Sailor was a careful and measured witness. She was clear in what she could recall and what she could not. Of the matters she did recall, I am satisfied her evidence is reliable and accurate, in particular her evidence about what she observed from her home in Butler Bay on 27 November 2004, when the SERT teams arrived in that area looking for the suspects they had been instructed to apprehend.

Mr Owen Marpoondin    

408    Mr Marpoondin has lived on Palm Island since he was four years old. He was a board member of ATSILS on Palm Island from 2002-2006. As part of his duties as a board member of ATSILS, he transported people to court in the ATSILS car and assisted the legal and field officers to provide other services to the community. During this time, he worked with Ms Sailor. Mr Marpoondin had known Mulrunji since they were children, as they both grew up on Palm Island. His evidence related to his attendance at the police station with Ms Sailor after they found out about Mulrunji’s death and his attendance at the houses of Mulrunji’s partner, Ms Tracy Twaddle, and mother, Ms Doris Doomadgee, with DI Webber and other police officers for the purpose of informing the family of Mulrunji’s death.

409    I found Mr Marpoondin gave fairly straightforward answers to the questions he was asked. Although his answers were often brief, I am satisfied his evidence was reliable.

Mr Albert Wotton

410    Mr Albert Wotton is the son of Mr Lex Wotton and Ms Cecilia Wotton. He has lived on Palm Island all of his life. At the time of giving his evidence, he was a trainee health worker at the Joyce Palmer Medical Centre on Palm Island. His evidence primarily related to the entry and search of his home by police on 27 November 2004. He was 12 years old at the time of the entry and search.

411    Mr Albert Wotton was a quietly spoken witness, but I found his evidence sincere and carefully given. I accept that he remains afraid of the police, and this came through very much in his oral evidence. Although his evidence about the precise sequence of events when the SERT officers came to the Wotton house was challenged in cross-examination, on the whole I found his evidence reliable. If there were some small inaccuracies in his recollection of the sequence of events, this did not affect the reliability of his key evidence.

Ms Krysten Harvey

412    Ms Harvey is the niece of Mr Lex Wotton and the granddaughter of Mrs Agnes Wotton. She has also lived on Palm Island all of her life. Until around September 2014, when she gave birth to her son, Ms Harvey was employed as a teacher’s aide at St Michael’s Primary School on Palm Island. At the time of the events in issue in this proceeding, Ms Harvey was sixteen years old. She was at Mrs Agnes Wotton’s house on the day of the arrests, entries and searches and her evidence relates predominantly to her experiences during the entry and search of Mrs Agnes Wotton’s house.

413    I found Ms Harvey to be a most straightforward witness, with a good recollection of the events she recounted. Reliving those events prompted some distress in her, which was obviously genuine. Where her evidence differs from the evidence or submissions put by the respondents about what happened inside Mrs Agnes Wotton’s house, I prefer her evidence. I am satisfied what happened in Agnes Wottons house was a singular and terrifying experience for Ms Harvey, and she has neither forgotten what occurred, nor mistakenly reconstructed aspects of it.

Wednesday, 23 September 2015

Mrs Agnes Wotton

414    Mrs Agnes Wotton is the second applicant in this matter and the mother of the first applicant, Lex Wotton. Mrs Wotton is a resident of Palm Island and has lived there since approximately 1957, when she was forcibly relocated to the island at the age of around 13 years. She lived in one of the dormitories in the ‘Mission’ area of the island between the age of 13 until her marriage at the age of 17 years. I set out the evidence about the dormitories at [33] to [39] above. Mrs Wotton became a Palm Island Councillor in the 1970s and was a member of the Aboriginal and Torres Strait Islander Commission in the early 1980s. She became a land rights activist in the mid-1980s and an advocate for the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody after the Commission handed down its final report in 1991. It is clear she has been a prominent member of the Palm Island community for many years. Her evidence related to her personal experiences growing up on Palm Island, what she observed and heard at community meetings after Mulrunji’s death, and the events surrounding the arrest of Mr Lex Wotton.

415    Although she is now in her seventies and not in the best of health, I accept Mrs Wotton is a senior and respected member of the Palm Island community. Her personal story of how she came to Palm Island is a sadly typical example of the removal of young Aboriginal children from their families and communities in the mid-20th century. Her evidence was carefully given, and I accept her as an honest witness, although there were parts of her evidence when her memory failed her. She gave sincere evidence about the impact of being prevented from attending Mulrunji’s funeral. She was prevented from attending the funeral because she was required to stay in Townsville for six to eight weeks after she was charged with rioting with damage in connection with the events on Palm Island. The charges against her were later dropped.

Ms Schanara Bulsey

416    Ms Bulsey is the daughter of Mr Lex Wotton and Ms Cecilia Wotton. She has lived on Palm Island most of her life. Ms Bulsey recently spent eight years living in Townsville, before returning to Palm Island. Ms Bulsey’s grandfather is Mr David Bulsey. When she gave her evidence in September 2015, Ms Bulsey had been employed as an administrative officer at the Joyce Palmer Hospital on Palm Island for five months. Ms Bulsey was at the home of Mr Lex Wotton and Ms Cecilia Wotton on the night of the police entry and search of their house, when her father was arrested.

417    I am satisfied Ms Bulsey gave honest evidence about what she could recollect. In parts, she was able to provide considerable detail, which I accept was from genuine recollection. In other parts, her recollection was less clear. Given the events she described were traumatic for her, it is unsurprising her recollection of detail is varied. Her distress, more than a decade later, was obvious and still raw. In cross-examination she made appropriate concessions, but in general I accept her evidence, including where it differs from, or conflicts with, the evidence given on behalf of the respondents.

Mr William Neville Blackman (Mr Blackman Senior)

418    Mr Blackman Senior has lived on Palm Island since he was 16 or 17 years of age. At the time of giving his evidence, Mr Blackman Senior was working in a diversion program funded by the Palm Island Community Company. Mr Blackman Senior stated that he was a close friend of Mulrunji. He gave evidence that he became friends with Mulrunji when they were both children and they grew up together. Mr Blackman Senior’s grandfather arrived on Palm Island in 1918. His grandmother was brought to Palm Island as a child, where she resided in the girls’ dormitory on Palm Island. Mr Blackman Senior was arrested and charged with rioting with damage in connection with the events of 26 November 2004. As part of his bail conditions, he was prohibited from staying on Palm Island in the time leading up to the hearing of his charges. Consequently, he stayed in Townsville for a period of around six months and like Mrs Wotton was unable to attend Mulrunji’s funeral. Two of the charges against him were subsequently dropped and he was found not guilty of a third.

419    Having described himself as a close mate of Mulrunji, a decade later his anger and frustration about Mulrunji’s death was still evident. His evidence about the sequence of events when police came to his house and his subsequent surrender to police was given in a straightforward manner. The impact of not attending Mulrunji’s funeral was clear in his evidence. In cross-examination, he made appropriate concessions about factual issues. Despite being challenged in cross-examination, he was firm in his evidence that his mother came with him when he gave himself up to police. I found his evidence reliable.

Ms Mersane Oui

420    Ms Oui is the de facto partner of Mr Blackman Senior. This was also the case in November 2004. She gave evidence about the evening the SERT teams came to their home.

421    Ms Oui appeared to me to have a good recollection of the entry and search of her house by police. Although she was not as emotional during her evidence as some of the witnesses (albeit that she was visibly upset), it was apparent the incident was frightening and distressing for her. Like the other witnesses called by the applicants, my impression is that the entry and search was a singular event in her life that has had lasting consequences.

Mr William Lloyd Blackman (Mr Blackman Junior)

422    Mr Blackman Junior is the son of Mr Blackman Senior. Mr Blackman Junior was born on Palm Island and has spent all of his life on Palm Island. He gave evidence about the police entries and searches and their effect on him. He was about 12 years old at the time.

423    I found Mr Blackman Junior to be quite a reticent witness, who gave what I consider to be reasonably reliable evidence about the SERT entry and search of his family home and its effect on him. Given his age at the time, his evidence was unsurprisingly limited to a few critical aspects of that event as it directly related to him. On occasions, he showed something of a steady resolve under questioning, especially in cross-examination. For example, when pressed about the use of alcohol, he responded “everybody drinks, not just on Palm Island”. I accept his evidence.

Thursday, 24 September 2015

Mr John Clumpoint

424    Mr Clumpoint has lived on Palm Island since he was 10 years old. He is a carpenter by trade and has four children. In his evidence, Mr Clumpoint said that he was related to Mulrunji and knew him very well. He referred to Mulrunji as his “little brother”. Mr Clumpoint was told about Mulrunji’s death by Mulrunji’s partner, Tracey Twaddle. He gave evidence about, among other things, how Mulrunji’s death affected him and the events on the day of the entry and search. He was one of the suspects arrested on 27 November 2004, and spent time in custody as a result although two of the charges against him were dropped and he was acquitted of a third.

425    Mr Clumpoint presented as something of a broken man. The causes of this could be many and varied. There were some real difficulties in the way his evidence was adduced, because leading questions were regularly employed. In a general sense, it may be accepted that the way he was treated in his sudden arrest and his inability to return to live and work on Palm Island had a material effect on the breakdown of his family relationships. Under cross-examination he became stronger in his answers and he adhered quite adamantly to his account of events when challenged. Ultimately, I am satisfied he attempted to give honest evidence, but he was somewhat confused about what happened on the day of the entry and search.

Mr Chevez Morton

426    Mr Morton has lived on Palm Island all of his life. He has previously been employed as a painter with the local Council although he was not employed at the time of giving evidence. Mrs Agnes Wotton is Mr Morton’s great aunt. He was at Mrs Agnes Wotton’s house, playing hide and seek, at the time of the SERT entry and search. He was nine years old at the time.

427    When he came to give evidence, Mr Morton was tense and appeared extremely nervous. He took deep breaths from time to time and tended to stare straight ahead of him, rather than look at anybody in the room. He appeared frightened – his hands were visibly shaking. A considerable part of his obvious fear related to the events he was being asked to recall and relate. I found his evidence vivid and compelling, and I accept he was relating genuine recollections of what happened to him. His evidence about his ongoing fear of police was poignant. He withstood challenges to his version of events under cross-examination.

Ms Collette Wotton

428    Ms Collette Wotton is the daughter of Mrs Agnes Wotton and the sister of Mr Lex Wotton. She has lived on Palm Island her whole life. She has three other siblings: Gerald, Lance and Anthony. She has four children of her own and five grandchildren. Ms Wotton had previously worked at St Michael’s Primary School for 20 years in administration, as a parent liaison and as a community Indigenous support worker. That is where she was employed in November 2004. She gave evidence about the community meetings after Mulrunji’s death, her conversation with her niece Ms Krysten Harvey after Ms Harvey’s experiences with the SERT entry and search at Mrs Agnes Wotton’s house, and the entry and search of her own house.

429    Ms Wotton presented as a very sincere person dedicated to her family but also to the Palm Island community. Her roots in this community are clearly deep: for example, her evidence about hearing of Mulrunji’s death while on an overnight stay in Townsville and that she could not wait to get back home to her family. It was plain she still feels considerable resentment towards the police and the way they conducted themselves in the days after Mulrunji’s death. She was able to give her own narrative of the events of 19 to 24 November 2004, but her evidence had an air of generality about it which led me to place less weight on her narrative than on some of the other witnesses. It appeared to me that some of that narrative may not have been actual recollections of what she saw and what she heard, but could well have been based on what she has subsequently learned. She became somewhat combative under cross-examination, but I find that is explicable by the degree of anger she still has towards the QPS. Nevertheless, her evidence conveyed a strong sense of injustice about how the QPS dealt with the investigation into Mulrunji’s death, their failure to work closely with the community in the days and weeks following that event, and what she saw as heavy-handed policing.

Mr Zacchias Sam

430    Mr Sam is a pensioner and has lived on Palm Island all of his life. In 2004, he was the CEO and then Deputy Mayor of the Council. He said he saw Mulrunji grow up as he used to visit Mulrunji’s parents’ house regularly. He gave evidence about the community and Council meetings he attended after Mulrunji’s death.

431    He exhibited a genuine focus on community welfare, but Mr Sam’s recollection of specific events was not strong and I am unable to place much weight on his evidence.

Ms Cecilia Wotton

432    Ms Cecilia Wotton is married to Mr Lex Wotton and gave her evidence over 24, 25 and 28 September 2015. She and Mr Wotton have been in a relationship for 20 years. At the time of giving her evidence, she was working as a cleaner at the Joyce Palmer Health Service on Palm Island. Her family has a significant history on Palm Island: her grandfather was a Palm Islander and her uncle was involved in the 1957 strike. Ms Wotton had a close relationship with Mulrunji’s elder sister, Claudelle, who lived with Ms Wotton and her family for a period of time. While Claudelle was living with Ms Wotton, Mulrunji would often visit Ms Wotton’s family house and spend time with Ms Wotton’s family. In November 2004, Lex Wotton and Ms Wotton had a number of children living with them, including their own. Ms Wotton gave evidence about, among other things, the police entries and searches after the protests and fires, and the effects that Mr Wotton’s arrest and imprisonment had on her and her family.

433    Ms Wotton was a fragile witness. Recalling the events of the entries and searches was distressing for her. My impression was she was reluctant to say out loud too much of what she remembered. Her evidence about the effects and aftermath of Mr Wotton’s arrest was circumscribed, although in part this was due to the manner of examination in chief, which was again peppered with leading questions. Her answers in cross-examination disclosed a firmness about her recollection which I found reliable. She was honest in answering questions in cross-examination about her struggles in day-to-day life, while accepting in what I found to be a stoic way that she could get through the day. She is obviously a self-reliant kind of person. Her quiet nature and her tendency for stoicism led, in my opinion, to something of an under-emphasis in her descriptions of how traumatic the events of November 2004 and their aftermath had been for her and her family.

Monday, 28 September 2015

Mr Anthony Koch

434    Mr Koch is a retired journalist. His experience ranged from working in the Queensland Justice Department in Brisbane for 10 years as a shorthand court reporter, to working for the Courier Mail for 22 years first as a political reporter and later an associate editor. He was also a chief reporter with The Australian newspaper for 10 years, where he focused on Indigenous affairs. Mr Koch has been awarded a Walkley award for journalism five times, along with numerous other local and international awards.

435    While he was with The Australian, he described working hard to obtain the trust of the Palm Island community, so that he was able to report on various stories from the island. On 26 November 2004, Mr Koch received a telephone call from a Palm Island community member, who told him about the fires and the protests. He travelled to Palm Island the next day. His evidence related to his experiences and observations reporting on Palm Island and talking to community members in the days after his arrival.

436    I found Mr Koch to be a down to earth kind of man, with a wide range of life experience. He is clearly an experienced and distinguished journalist. As chief reporter for The Australian, I accept he had a leading role in reporting on Indigenous affairs. He had been to Palm Island at least 12 times prior to November 2004 and his particular interests in, and familiarity with, Palm Island gave him a perspective of, and level of experience about, the island which was well beyond any other non-Aboriginal witness in this proceeding. He exhibited a clear independent streak, evident in his account of how he chose to go to Palm Island during the unrest. This was his evidence:

Yes. Yes. I decided to – I spoke to ..... and I got on a plane and came to Townsville that night. I had – I was then contacted by Murandoo Yanner, who’s a very outspoken Aboriginal activist, if you like, from Burketown. But he had very strong connections with Palm Island. He –and people were in touch with him, and he said that I should meet up in the morning with a local man called Brad Foster – I didn’t know Brad – and that he would, you know, introduce me to people and look after me on the island, and – and so I did. I met Foster the next morning, and we or I hired a helicopter and – and we went over to the island, because I had been told then – by that time, I had been told that any planes that were leaving on the island with journalists on that police were meeting them and then shepherding them into the school there, where they were – well, the term used was “embedded”, but where they were to stay, but they were under the eye of the police. I mean, they weren’t held there against their will or anything, but they didn’t have free access to the island.

And what was your view about that?---Well, that wouldn’t have suited me, so the arrangement was that we fly to the island and – and hopefully get – and stay in the Foster home, out – just up from the general store there.

So in the central part of - - -?---Yes, so I would have free access, yes, to island to speak to people. Yes.

And is that what happened?---Yes. That’s what happened.

And you stayed in the Foster home, it sounds like - - -?---I did for the whole period. I think I was there for eight or 10 days. Yes.

437    I consider Mr Koch was conscientiously recalling what he could from 27 November 2004 onwards and was attempting to be accurate, although in cross-examination some assumptions and glosses on his evidence were exposed. There were some aspects of his evidence that disclosed a sense of the legacy of Palm Island’s history on the community in November 2004. Two examples will suffice.

438    First, Mr Koch gave evidence that at about 2 am on 28 November 2004, while he was driving around the island and talking to people, he was approached by Mrs Renata Pryor (whose name was also sometimes spelled “Prior” in the materials in evidence), the mother of William Blackman Senior. Mrs Pryor recognised Mr Koch because five years earlier he had interviewed Mrs Pryor’s father, Peter Prior. Peter Prior was the man who had shot Superintendent Robert Curry in 1930 in the incident I describe at [36] above and was about 90 years old at the time of the interview with Mr Koch. During the interview, Mr Prior had told Mr Koch that, immediately after the murder charge against him in relation to Mr Curry’s death was dropped and Mr Prior was released from prison, the police arrested and imprisoned him again, without charge, on the pretext that it was for his own protection because Superintendent Curry’s brother wanted to kill him. Against the background of that experience, Mrs Pryor was extremely worried for her son, Mr Blackman, who at that time was hiding from the police. Mr Koch and Mrs Pryor drove around and eventually found Mr Blackman. At Mrs Pryor’s request, Mr Koch photographed Mr Blackman’s body in an attempt to record that he did not have any bruises or bullet holes in him because Mrs Pryor and Mr Blackman were afraid that he would be injured by the police.

439    Second, Mr Koch gave evidence indicating that, as in other Aboriginal communities, the Palm Island Council was very influential on Palm Island and could have assisted the QPS with apprehending people in a less confrontational manner. His evidence was that Mr Robert Blackley, who had previously been Mayor of Palm Island, had told him that if the police wanted to arrest people all they had to do was go to the Council and ask that those people make themselves available and the Council could make that happen. Mr Koch’s evidence was that he found Mr Blackley’s opinion to be reasonable based on his own observations about the power and influence of elected councils in Aboriginal communities.

440    By reason of the perspective he brought, I found Mr Koch’s evidence to be more balanced than that of many of the respondents’ witnesses, which I found defensive and without appreciation of the history and nature of the Palm Island community. Therefore, I gave considerable weight to his evidence about what he saw in the time after 26 November 2004.

Dr Rosalind Kidd

441    Dr Kidd gave evidence via video link. She is an academic historian who graduated with a Doctor of Philosophy from Griffith University, Brisbane in 1995. She specialises in Indigenous affairs and, throughout her career, has submitted reports to numerous inquiries and committees relating to Indigenous affairs. Dr Kidd was retained by the applicants to provide a historical report on Palm Island including an overview of how the settlement on Palm Island came to be established, the strike of 1957 and historical policing on Palm Island. Her report was an annexure to her affidavit sworn on 16 June 2015.

442    Dr Kidd began her oral evidence as a careful witness making appropriate concessions and qualifications. But as her cross-examination tended to show, her method was not as rigorous as it should have been. For example, at [3.2.26] of Dr Kidd’s report, she states that: “reports during 1970 showed only 165 houses for 1300 people on the island, resulting in gross overcrowding and unhealthy home conditions caused by the impossibility of keeping the houses clean. In the footnote to this statement, Dr Kidd cites a document at pages 118-119 of the extracts to her report headed “Training officer’s comments on L/O’s reports” and dated November 1969 to March 1970. However, that particular source document does not support a statement that the conditions of homes on Palm Island were “unhealthy”. The only negative statements about the conditions of homes on Palm Island in that document are that there was an overcrowding problem (and the population statistics and the number of homes Dr Kidd uses are stated) and that “[i]n several homes, the wives have done their best to keep their homes clean, but due to the lack of room, it has been impossible for them to keep their homes as we expect them to.”

443    This statement at [3.2.29] of Dr Kidd’s report was also challenged during cross-examination:

Yet another gastroenteritis epidemic struck, killing one child and hospitalising a further 55. Ten of the most critically ill children were sent to Townsville Hospital where the medical superintendent said chronic severe malnutrition on the Island left many children looking like ‘starved Biafrans’.

444    The source Dr Kidd cites to support this statement, a newspaper article titled “Gastro Victims Like Biafrans’” – which appears to be from the Townsville Daily Bulletin on 21 September 1973 – actually states:

Many of the Palm Island children who were admitted to hospital with gastro-enteritis were like “newspaper photographs we have seen of starving Biafran children,” the Medical Superintendent of the Townsville General Hospital, Dr. D. Bowler, said yesterday.

“The extreme undernourishment of many of the children made them especially susceptible to the many bugs on the island which could have caused the epidemic,” he said.

445    I agree with senior counsel for the respondents that Dr Kidd did not accurately summarise the medical superintendent’s statement¸ in that his statement was about the appearance of children admitted to hospital with gastroenteritis rather than children on the island generally.

446    I consider that at various points in her report, Dr Kidd was given to imposing some glosses and exaggeration on the historical record. That is not to diminish the underlying subject matter of her report, which disclosed terrible conditions on Palm Island and the attitude of state and federal authorities in forcibly removing individuals, families, and parts of families to Palm Island and then virtually imprisoning them there.

447    However, none of the broad opinions she expressed were subject to any challenge under cross-examination. The historical material attached and referred to in her report, which was not challenged, provides insight into the historical conditions on Palm Island and the attitude of the authorities to Aboriginal people living there. I have relied on this material at [23] to [59] above, and on some of Dr Kidd’s opinions, where I found them to be well-founded in the historical material to which she referred.

Ms Jacinta Barry

448    Ms Barry came forward during the hearings on Palm Island. Leave was granted to the applicants to add her as a witness and she was called on 28 and 29 September 2015. Ms Barry has lived on Palm Island all of her life. She is mother to seven children and Mulrunji was her first cousin. It was Ms Barry’s evidence that she knew Mulrunji very well and that she spent considerable time with him when she was younger. Ms Barry’s house was entered and searched by SERT officers on 27 November 2004 and her evidence related mostly to that incident.

449    Ms Barry’s position as, in substance, a “volunteer” witness who put herself forward is of some significance. Her evidence of the entry and search of her house by SERT officers was vivid and believable. She spoke about the impact of the entry and search, in terms of her fear of the police. I accept her fear is genuine, although I consider Mrs Barry may have exaggerated it a little in her evidence. There is no doubt she is focused on the entries and searches as the source of her anxiety and difficulties in life. The evidence was insufficient to reach any conclusion on that issue, nor is any such conclusion necessary because these reasons do not address relief in relation to members of the subgroup.

Tuesday, 29 September 2015

Emeritus Professor Jon Altman

450    Professor Altman, who is an economist and anthropologist, gave evidence via video link from the Court’s Sydney Registry. He is an Emeritus Professor and Visiting Fellow at the Australian National University’s Regulatory Institution Network, a Fellow of the Academy of the Social Sciences in Australia and an adjunct Professorial Fellow at the Research Institute for the Environment and Livelihoods at Charles Darwin University in Darwin. The respondents did not challenge his qualifications or his experience in working with Indigenous people, and in working on a variety of Indigenous policy issues with federal and state governments, Aboriginal and Torre Strait Islander organisations and communities, and non-government organisations.

451    Professor Altman was engaged by the applicant’s solicitors to provide information on the extent of the socio-economic deprivation on Palm Island. Professor Altman produced a report with his colleague Dr Nicholas Biddle, which was annexed to his affidavit dated 3 September 2015. There was also no challenge by the respondents to Dr Biddle’s expertise.

452    Professor Altman was a measured and impressive witness. His explanations for the use of the 2006 census data in relation to the circumstances on Palm Island in 2004 were persuasive, even though the data post-dates those circumstances, and I had no difficulty in relying on that material. His evidence was of limited relevance to the issues I have to decide, but it was of high quality.

Mr Lex Wotton

453    Mr Wotton is the lead applicant in this proceeding. He gave oral evidence on 29 and 30 September and 1 October 2015. He has lived his whole life on Palm Island, aside from a year at Townsville while in high school, and time he was forced to spend away from Palm Island as a result of the charges and subsequent conviction arising out of the events of 26 November 2004. His partner is Ms Cecilia Wotton and, as I have indicated, they have a number of children. He is a plumber by trade and, at the time of giving his evidence, was employed by the Palm Island Council. Mr Wotton was convicted of rioting with destruction and was sentenced to a term of six years’ imprisonment with a non-parole period of two years, and allowance of 110 days for time served. After his conviction he spent 20 months in custody.

454    In some respects, I found Mr Wotton a difficult witness to assess. He initially gave his evidence in monotone, seeming to have something of a forced calmness of attitude about him. His evidence in chief tended to be somewhat rambling and lacked focus. I do not wish to be unduly critical of him, because I accept this was a testing experience for him and it is the case that little control was exercised over his evidence in chief. At various times, his evidence tended to be irrelevant to the issues in the proceeding. An example of this was how he interrupted his own narrative of the events that took place on Palm Island on Tuesday, 23 November 2004 to commence a long discourse about the Royal Commission into Aboriginal Deaths in Custody. On occasion, he seemed determined to say what he wanted to say, irrespective of the questions asked by his counsel. In cross-examination, Mr Wotton also seemed determined at times not to answer a question unless it was completely non-controversial. He asked for clarification of questions that were straightforward, including where the answers he may have had to give were not necessarily going to reflect well on him. Thus, I find there was some evasiveness in his evidence.

455    However, when he started describing what happened at the community meetings that took place on Monday, 22 November 2004 and thereafter, his account became more animated and appeared to be more composed of actual recollection. That said, it is my opinion he sought to downplay his role at the meetings and protests, and he certainly downplayed matters such as the kind of language used. I prefer to rely on the contemporaneous video footage for my conclusions about these events, as I also found Inspector Whyte’s evidence exaggerated, one-sided, unduly emotive and unreliable.

456    How Mr Wotton presented in the witness box was in stark contrast to the angry, confrontational man who can be seen in the video footage. My sense was he was working hard to be measured and controlled in his evidence. That does not mean I found his emotions when speaking about the arrests, entries and searches not to be genuine, but I am not confident that his evidence disclosed the whole of his personality, and therefore I am not confident about how reliable his evidence is in terms of the level of impact he contends these events had on him. The significant contrast between how he appears in the video footage and his demeanour and attitude in this proceeding must be taken into account, allowing of course for the fact that no individual is one-dimensional. That said, I did find Mr Wotton’s account of how he was tasered and arrested, how he heard his children ‘singing’ out, and how frightened he observed them to be, to be a genuine account.

457    I have made almost all my findings in this proceeding without needing to rely heavily on Mr Wotton’s evidence. That is because, where possible, I have preferred to rely on the contemporaneous documentary and video evidence. However, I found his evidence about the sizes of the crowds on various occasions, and the general sequence of events, to be reliable. I also found his account of what occurred at his home when he was arrested to be reliable.

458    Where his evidence must be squarely confronted is in his damages claim. It is in this aspect of the proceeding that I have been unable to give full force and effect to all he said in oral evidence. In contrast to his partner, Ms Cecilia Wotton, I simply did not find his evidence wholly persuasive. I have no doubt that his arrest and imprisonment have occasioned significant hardship for him, as well as for his family. However, I also consider that Mr Wotton is a particularly tough and resilient individual, and an individual who is capable of being highly assertive and confrontational. Therefore, I cannot wholly accept the picture of a highly controlled, softly spoken, measured individual that he presented in this proceeding. I consider there are other, tougher, dimensions to his personality which were apparent on 26 November 2004, and which reduce the likelihood that he suffered the same kind of debilitating, long term impact from the arrests, entries and searches and his arrest that Ms Cecilia Wotton suffered, to take one example.

Wednesday, 30 September 2015

Dr Diana Eades

459    At the time of giving her evidence, Dr Eades was a consultant sociolinguist and Adjunct Professor in the School of Behavioural, Cognitive and Social Sciences at the University of New England. In 2010, Dr Eades was elected as a Fellow to the Australian Academy of the Humanities and, at the time of giving her evidence, was head of Section of Linguistics Fellows. Dr Eades was retained by the applicants to review the interviews conducted by non-Indigenous police officers with Aboriginal witnesses. Her brief included, amongst other things, providing an expert opinion on the issues of language and culture that arise when interviewing or taking evidence from Aboriginal witnesses, the circumstances in which a support person would be required to attend an interview with an Aboriginal witness, and whether there were any issues or difficulties with the way interviews with certain Aboriginal witnesses were conducted in this case. In answering the latter question, Dr Eades was asked to provide her opinion on specific excerpts from the interview transcripts, which she did.

460    Dr Eades was an impressive witness. I found her thorough and measured in her evidence, which was also objective and well-balanced. The respondents did not challenge her expertise or experience, which were impeccable. Overall, she was a knowledgeable and helpful witness.

Mr Stephen Ralph

461    At the time of giving his evidence, Mr Ralph was a consultant Forensic Psychologist. He has a Master of Arts (Hons) in Psychology from the University of Sydney. Mr Ralph was retained by the applicants to provide an assessment of whether Lex Wotton, Cecilia Wotton and Agnes Wotton suffered any psychological harm as a result of the conduct of the police in relation to the Palm Island riots and their aftermath. Mr Ralph’s report includes details on each individual’s history, any treatment or counselling received, the individual’s condition and any associated disabilities, the likely cause of that condition, the prognosis (including the likely duration of the condition) and any further treatment or rehabilitation the individual might benefit from. Although he produced a single report, each of the three individuals he reported on were separately interviewed, and did not see those parts of his report relating to the others.

462    I found Mr Ralph to be a careful witness, who moderated what he said in an appropriate way. I found his evidence insightful. The weight of his evidence, however, may be affected by inaccuracies and inconsistencies in some of the history given to him by Ms Cecilia Wotton, as well as (he frankly conceded) matters that Ms Wotton apparently chose not to tell him. The respondents’ challenge in cross-examinationnamely, that his focus was rather narrowhas force. Mr Ralph took no substantial medical history and obtained no medical records for any of the three individuals. He did not consider or examine events in their lives prior to Mulrunji’s death in custody and he did not much examine the possible effects of events after November 2004. It does seem, for example, that Mr Ralph may have paid insufficient regard to the 18 months the Wottons spent in Townsville while Mr Wotton’s criminal process was underway. Nevertheless, I consider his opinions about Ms Cecilia Wotton and Mr Wotton should be given some weight. I also consider there was force in his reasoning about the effects of an apology for each of the applicants. I return to these issues in more detail in the Relief section of these reasons.

The respondents’ witnesses

Friday, 2 October 2015

Inspector David Dini

463    At the time of giving his evidence, Inspector Dini was the Officer in Charge of the QPS Far North District Cross-Cultural Liaison Patrol Group based in Cairns. In November 2004, Inspector Dini was a Senior Sergeant employed by the QPS performing the role of Officer in Charge of the Townsville Cross-Cultural Liaison Unit. His evidence relates to his experiences on Palm Island after his arrival there on 26 November 2004.

464    Inspector Dini began as a relatively straightforward witness. However, there were some aspects of his recollection which were puzzling – such as that he was unable to recall a group of children around where he and other officers were standing on Reservoir Ridge when he arrived on Palm Island, looking down toward the fires at the Police Station. In the video evidence, these children are visible and noisy. While I accept his focus at the time was on the fires and what was happening at the police barracks, as his evidence went on, it had something of a rehearsed quality to it and it seemed to me he was unprepared for questions about matters he had not anticipated.

465    In common with several QPS witnesses, I found his descriptions of events tended to be self-serving, particularly in the way he described the level of risk and threat on Palm Island during this time. For example, his evidence concerning what was happening when QPS officers were lined up outside the hospital involved a description by him of “missiles” being thrown at police officers. The lengthy videos of that event that were in evidence do not show any local people throwing anything. An express question was put to Mr Wotton in cross-examination whether he saw rocks being thrown at police officers outside the hospital, to which he gave a firm ‘no’. In contrast, Mr Wotton admitted he saw people throwing rocks outside the barracks. There was nothing visible in the video evidence that would fit the description of a “missile”, and no more precise evidence was adduced by the respondents to support assertions of this kind. When he was pressed in cross-examination, some of Inspector Dini’s answers tended to be less clear and he tended to answer with denials. For example, he was cross-examined about a conversation it was alleged he had with Ms Sailor, which he firmly denied. As I have set out, I found Ms Sailor a reliable witness: in my opinion, it is more likely Inspector Dini has forgotten this conversation. My impression is that he was not focused at all on the local residents; he was focused on the police operations. I gave his evidence limited weight.

Monday, 7 March 2016

Dr Jill Reddan

466    Dr Reddan is a Consultant Psychiatrist who currently practices privately from consultancy suites in Brisbane, as well as at the Prison Mental Health Service at West Moreton Hospital and Health Service in Wacol, Queensland. Dr Reddan was retained by the solicitors for the respondents to provide a medico-legal report in relation to Ms Cecilia Wotton “on the papers” – that is, without any examination of Ms Wotton. The respondents’ solicitors also requested that Dr Reddan assess Mr Ralph’s Forensic Psychological Report on Ms Wotton.

467    Dr Reddan produced a report dated 21 July 2015, which was limited to an assessment of Mr Ralph’s report; she did not provide an assessment of Ms Wotton on the papers. Dr Reddan’s report highlights a number of weaknesses of Mr Ralph’s assessment process and report. In evidence in chief, Dr Reddan’s affidavit dated 4 August 2015 was tendered, attaching her report. In cross-examination, Dr Reddan accepted that specialised skills are required to work in Aboriginal and Torres Strait Islander mental health and admitted that she has never worked in Aboriginal communities. She has only been to Palm Island once, in 1988 or 1989, and only for a couple of days. She pointed out, however, that she spends 60% of her working time in prisons and sees many Aboriginal and Torres Strait Islander clients in that capacity.

468    I found Dr Reddan to be quite a defensive witness, and some of her opinions seemed rather too absolute. I did not find her evidence particularly helpful, and I found her criticisms of Mr Ralph to be somewhat technical. Even putting these reservations to one side, what she did was conduct a ‘desktop’ review of Mr Ralph’s reports, having never met the Wottons herself. In assessing damages, I am not inclined to give much weight to expert medical evidence of that kind.

Detective Inspector Warren Webber

469    DI Webber gave evidence on 7, 8 and 9 March 2016. At the time of giving his evidence, he had approximately 40 years policing experience and was working in the state intelligence unit at QPS police headquarters in Brisbane, holding the positions of Inspector and Operations Manager. At the time of Mulrunji’s death in November 2004, he was the regional crime coordinator for the Northern Region, which included Palm Island. As regional crime coordinator, his duties and responsibilities included the investigation of police-related incidents and the oversight of major criminal investigations in the Northern Region. He told the Court that the position of regional crime coordinator was independent of the Criminal Investigation Branch, or CIB.

470    After being informed of Mulrunji’s death in custody on 19 November 2004, it was DI Webber’s task to assemble a team of people to travel with him to Palm Island to carry out an investigation. His evidence related to the nature and process of this investigation and the people involved, up until 24 November 2004, when the CMC took over responsibility for the investigation.

471    DI Webber presented with a matter of fact demeanour, giving quite formal and brief answers to questions. I found in his evidence he tended to emphasise the possibility of unrest in the community, rather than exhibit any understanding about the effect of Mulrunji’s death on local people. I also found that, in common with other police witnesses, he sought to emphasise ‘weapons’ that local residents had. For example, in answer to a question from the Court, he replied that he saw some local people with spears when they were gathered in front of the line of police outside the hospital. He also gave some rather vague evidence about having seen Mr Wotton on a verandah of a house in between the hospital and the school with spears. It appears this information also made its way into an executive briefing note drafted that day, which stated that Mr Wotton had “encircled himself with supporters armed with spears, chains and other make shift weapons”. Contrary to this kind of evidence, there was no cross-examination of the applicants’ witnesses to confirm such views. There was, in contrast, ample evidence about how local people used spears for fishing.

472    There is no contemporaneous video evidence showing any indication that any local people had spears. It was not put to Mr Wotton in cross-examination that he or anyone he was with at any material time before or during 26 November 2004 were carrying spears. Both Mr Wotton and Mr Marpoondin gave evidence about local men (including Mulrunji) going spear fishing, but that was the extent of the evidence. I do not accept DI Webber’s evidence, or the evidence of any other police witness, about local people carrying spears at the meetings or gatherings during the week after Mulrunji’s death. Whether officers such as DI Webber mistook what they saw, I do not know. In contrast, during events such as the line-up at the hospital, the police were fully armed and had police dogs.

473    DI Webber was quite frank in accepting the criticisms that have been made of his conduct in the investigation by other bodies such as the CMC and in coronial findings. From time to time in his evidence he accepted that some conduct was inappropriate – for example, he made this concession about his decision to have a meal and beer with SS Hurley on the night of 19 November 2004. At other times, he qualified his concession with an acknowledgement that, with the benefit of hindsight, he could have done things differently. Overall, however, of all the respondents’ witnesses, he was the officer most prepared to make reasonable concessions about the clear failures in aspects of QPS conduct during the events with which this proceeding is concerned.

474    I found DI Webber to be a more reliable witness than Inspector Whyte, in terms of his account of what happened on and after 26 November 2004. That said, his evidence was to my mind still carefully expressed so as to emphasise a level of threat supporting the views of QPS officers at the time, and (so far as I can ascertain) the consistent position of the QPS since 2004 in every inquiry or proceeding concerning the level of threat to the physical safety of QPS officers. I set out my findings about that at various points below, including at [792]-[815].

Wednesday, 9 March 2016

Inspector Joe Kitching

475    Inspector Kitching gave his evidence on 9, 10 and 11 March 2016. At this time, he held the rank of Inspector of Operations (Northern Region) in the QPS. In November 2004, he held the rank of Detective Senior Sergeant, Officer in Charge of the Townsville CIB. He has approximately 30 years policing experience and, in November 2004, had been a detective for approximately 16 years. He was the most senior officer at the Townsville CIB at that time.

476    Inspector Kitching was appointed by DI Webber as the primary investigator into Mulrunji’s death. His evidence related to his role as primary investigator and the conduct of the investigations. He was the officer primarily responsible for recording events in the police logs. These logs were more or less contemporaneous records kept by the QPS and they assume some significance in aspects of the applicants’ claims.

477    Inspector Kitching gave quite matter of fact answers in his oral evidence. He presented as efficient, and sure of what he had and had not done. However, he also appeared quite agitated throughout his evidence and was often anxious to defend himself. That is to some extent understandable as he (like other officers such as DI Webber) has been through a series of inquiries and proceedings about these events on Palm Island, often aimed at scrutinising police conduct. He emphasised in his answers that whatever criticisms might be made of his conduct, or QPS conduct more generally, those criticisms could only be made with the benefit of hindsight. He was persistently reluctant to express any agreement with criticism of his conduct. For example the following finding of Deputy Chief Magistrate Hine (at [8] of the coronial report) was put to Inspector Kitching:

The investigation of the death of Mulrunji by officers who knew Senior Sergeant Hurley and/or were from within Townsville District Command was, in my view, unsatisfactory and inappropriate. The involvement of such officers undermined the credibility of the investigation and its appearance of independence and impartiality. The conduct of investigating officers and of Senior Sergeant Hurley during the first day of the investigation exacerbated this problem, in particular the perception of collusion.

478    Inspector Kitching’s response to this was:

I suggest to you that that’s an accurate representation of the position, isn’t it?---That’s what was found, yes.

It’s a fair reading of the facts?---That’s what was found, yes.

No. Listen to the question: it’s a fair reading of the facts, would you agree?---That’s what was commented on, yes, that’s correct. I understand. That’s right.

It’s a fair reading of the facts, isn’t it?---That’s correct. That’s how it was reported by Coroner Hine.

479    In this sense, I found him a more defensive witness than DI Webber – at times, disproportionately defensive. There were aspects of his conduct which, even putting to one side whether they contravened s 9 of the RDA, were plainly open to legitimate criticism. These include his failure to include a range of critical information on the Form 1 for the autopsy and his repeated failure to bring a number of allegations and circumstances about Mulrunji’s death to the attention of the pathologist in any other way. However, Inspector Kitching was, unlike DI Webber, unprepared to make any concessions about how his conduct might have been less than adequate. To that extent I am not prepared to place great reliance on his evidence where it was in conflict with, or different from, other witnesses, or different from the contemporaneous evidence.

Friday, 11 March 2016

Mr Gary Campbell

480    At the time he gave his evidence, Mr Gary Campbell was a senior investigator with the Australian Commission for Law Enforcement Integrity. He was formerly employed by the QPS as a Detective Senior Sergeant until March 2015. In November and December 2004, he was a Detective Sergeant employed by the QPS at the Townsville CIB. Mr Campbell was not on Palm Island, and had no involvement in any events occurring there, during the period of 19 to 26 November 2004. Mr Campbell was directed to attend Palm Island after the protests and fires and was in charge, jointly with DS Robinson, of the on-island investigations into possible offences committed during the riot, under the oversight of the Townsville Major Incident Room (MIR). He gave evidence about how he came to assume this role, how he and DS Robinson conducted their investigations, how they developed the list of persons of interest to the criminal investigation into the protests and fires, their provision of this list to SERT, and the instructions he gave to investigators once the persons of interest were apprehended.

481    Mr Campbell was a straightforward witness who spoke frankly about his role in the events on Palm Island in November 2004. He staunchly defended the use of SERT teams. His response to a suggestion in cross-examination that calling in SERT was “overkill”, and was done because it was an Aboriginal community was:

I believe it was entirely appropriate on the back of the acts of extreme violence and property destruction that had occurred.

482    He referred again to extreme violence when describing the events of 26 November 2004.

483    Consistently with the findings I have made at [792]-[815], Mr Campbell’s descriptions of the level of violence is not borne out by the contemporaneous evidence. In his case, he was not on the island at the time of these events and so does not fall into the category of a QPS officer whom I accept may have had a subjective fear for her or his own safety, whether well-founded or not.

Monday, 14 March 2016

Inspector Donald McKay (SERT Operative 1)

484    Inspector McKay gave evidence on 14 and 15 March 2016. At that time, he was employed as an Inspector in the QPS, stationed in the Cairns SERT. He explained in his evidence that he now has a “commission rank” in SERT, so while he is still attached to SERT, he is no longer an operational member. In November 2004, he was a Senior Sergeant in the QPS, performing the role of Officer in Charge of the Far Northern Region SERT. He has been a member of SERT since 1992. In the documentary evidence about the entries and searches, Inspector McKay is often referred to as SERT Operative 1. During the entries and searches, Inspector McKay played an oversight and coordination role, which meant that he generally remained outside the residences attended by the SERT teams.

485    He gave evidence about the nature of SERT, how SERT operations are generally run, and the details of this particular SERT operation. In relation to the latter, he gave evidence about the information and directions that were provided to SERT in their briefing, the actions of SERT upon arrival at the residence of each person of interest, the equipment and weapons SERT officers carried, and SERT’s activities at the Wotton residence (including an account of the tasering of Mr Wotton).

486    Inspector MacKay’s evidence was couched in terms of ‘tasks’, and he presented himself very much as a functionary in that sense – doing the job he was ordered to do, so as to achieve ‘the outcome’ those orders were directed at achieving. His evidence about the tasering of Mr Wotton was given in a clinical and positive way, despite Mr Wotton being present in court. If Inspector Mackay had any insight into the effects of his actions, and the actions of the SERT team, on the individuals they interacted with on Palm Island, it was not at all apparent in the way in which he gave his evidence. That said, I found his evidence reasonably reliable in terms of the narrative of events.

Tuesday, 15 March 2016

Inspector Roger Whyte

487    Inspector Whyte gave his evidence on 15 and 16 March 2016. He has been employed by the QPS for approximately 32 years and, at the time of giving his evidence, was working as an Inspector in the Townsville Patrol Group. In and around November 2004, he was a Senior Sergeant in the QPS, performing the role of Officer in Charge of Deeragun Police Division, Townsville. He gave evidence that between 1987 and 1997, he worked in Aboriginal communities in the Cape York region, including communities in Weipa, Aurukun, Kowanyama, Lockhart River, Bamaga, Thursday Island and Pormpuraaw. He arrived on Palm Island on 22 November 2004 to act in SS Hurley’s position as Officer in Charge of the Palm Island Police Station until further notice. He remained in that position until 26 November 2004.

488    Inspector Whyte gave evidence about what occurred after he arrived on Palm Island, leading up to 26 November 2004, and then what occurred during the protests and fires. He described an encounter between himself and Mr Wotton at the police station before the protests and fires, his negotiations with Mr Wotton and his attempts to calm and talk to the crowd. He also gave evidence about the advice and instructions he gave to the QPS officers under his command during the protests and fires, and events at the QPS barracks and the hospital during the protests and fires.

489    Inspector Whyte presented as rather a nervous witness to begin with, but became more assertive, especially on the second day of his evidence. I accept Inspector Whyte seems to have been personally affected by what happened on 26 November 2004, and that therefore giving evidence in this proceeding was not easy for him. Those difficulties may account for some of his confrontational and exaggerated evidence. However, in my opinion, they do not account for all of it. From what I observed of him in the witness box and in the contemporaneous video evidence, Inspector Whyte’s personality was such that he was given to aggression and confrontation as his ‘default’ positions for managing conflict or tense situations. I found Inspector Whyte’s evidence to be the most exaggerated and defensive of all the respondents’ witnesses, and for those reasons also the most unreliable.

490    This was the submission made by the applicants about Inspector Whyte in their closing submissions, citing his evidence in this proceeding and a police interview with him that occurred on 26 November 2004, after the protests and fires:

[T]he Applicants note that SS Whyte was sent to Palm Island on 22 November 2004 to be the officer in charge of the station and Insp Richardson was sent in order to oversee the policing operations. In respect of SS Whyte, the Applicants submit that his training in culturally sensitive policing was wholly inadequate and rely on the following matters in that regard:

    his description in his interview of 26 November 2004 of Mr Wotton as “not blackie blackie half cast” and of David Bulsey as a “skinny fella, half caste fella”;

    his statements in that same interview that Aboriginal people “will turn on you when they’re drinking alcohol” and will “turn on you if they’ve got something that, ah, really makes them go off”;

    his attempt in his evidence to justify the remark that Aboriginal people will “turn on you when they’re drinking alcohol” on the basis that, after he was “promoted to the rank of sergeant to take charge of the Pormpuraaw Aboriginal community”, of the 600 Aboriginal people in the Pormpuraaw community, there were “two people that didn’t consume alcohol, to [his] knowledge”;

    his disrespectful remark in the 26 November 2004 interview that “this is obviously the death of Doomadgee person made them go off”;

    his description during his evidence to the committal hearing of Lance Poynter being an “ugly looking fellow”;

    the pride that he apparently took in having told Mr Wotton to “fuck off” outside the police barracks on 26 November 2004; and

    his remarks on 26 November 2004 in the police barracks to the other police officers that:

it may be the case that you have to discharge a few fuckin’ rounds in the air to scare the shit out of these cunts. I don’t know about you, but that’s fuckin’ it, that’s just ridiculous. There’s not one court in the land, not one cunt anywhere in Australia that’s gonna fuckin’ put up with all this.

(Footnotes omitted.)

491    The respondents accepted that Inspector Whyte could be described as having an “us-and-them mentality”, but submitted that his evidence was “coloured by his experiences during the riot” and that he was an “old-school policemanfrom a different era brought up in a different general milieu [or] approach to things”. In closing submissions, senior counsel for the respondents made the following submissions in response to questions from the Court:

HER HONOUR: - - - Mr Whyte, this us and them mentality. I mean, is the fear coming from the fact that they are facing a group of black people?

MR HINSON: We submit not. It’s a group of people, armed with rocks, making threats who set fire to the police station. It wouldn’t – that’s what happened. That’s what caused the fear. It’s, we would submit – well, one can’t really – one can’t think of a real life comparator and it’s difficult to think of a hypothetical – this is an actual situation that evolved and in terms of - - -

HER HONOUR: Well, there were some riots in the middle of Melbourne not very long ago down on the street at Federation Square and Flinders Street Station where, no doubt, there were lots of police and there were lots of things, as I understand the media reports, being thrown and there were ordinary policemen down there and women dealing with that situation. I don’t think it’s – I’m not sure why you say it’s something so far out of the ordinary experience of a police officer. They have a very dangerous job.

MR HINSON: They do. But it’s – an earlier version of the statement of claim described the riot as an “unprecedented event” which was - - -

HER HONOUR: Well, it was clearly unprecedented on Palm Island, wasn’t it?

MR HINSON: Well, we would submit it was unprecedented more broadly than that.

492    Senior counsel for the respondents also submitted that the language used by SS Whyte in his 26 November 2004 interview could be explained on the basis that “this was an interview given by Mr Whyte late at night – 9 o’clock – after a long day – a long and frightening day – and there’s no basis for treating what he said on that occasion in those circumstances has being his typical behaviour”.

493    In my opinion, the applicants’ submissions about Inspector Whyte are soundly based, although the difficulty in Inspector Whyte’s attitude went beyond a lack of training in “culturally sensitive policing”. There were so many examples through his evidence, and from evidence of what he said and did while he was on Palm Island in November 2004, that I am comfortable reaching a conclusion that Inspector Whyte brought a negative attitude to his interactions with Aboriginal people, and he had a clear and regular propensity to stereotype them, and to stereotype their lifestyles, attitudes and tendencies. Insofar as the respondents’ submissions sought to minimise or excuse that attitude, or to suggest that it was simply the result of the circumstances on Palm Island in November 2004, I do not accept them.

494    When Inspector Whyte was asked in cross-examination about the kind of language he can be heard using in a video from 26 November 2004, calling local people “cunts”, this was his response:

at the time it was language used to enhance morale of my people.

495    There is some truth in this answer, but not for the reason I consider Inspector Whyte intended to convey. When one watches and listens to the video in which these statements are made by Inspector Whyte, it is as if there is a battle in progress, between non-Aboriginal (and mostly, if not only, white) police officers, and those who are perceived as their enemies. This was the impression I had from a great deal of Inspector Whyte’s evidence – Aboriginal people were the enemies, the ‘other’, the ones who could not be trusted, who needed overt and forceful policing and controlling. When he spoke about his work in Aboriginal communities, as the applicants submitted, it had a controlling flavour to it: he gave no sense of co-operation or intention to work with communities he was policing. Indeed, as the applicants submitted, the way Inspector Whyte expressed his earlier work in communities was not without significance:

I was promoted to the rank of sergeant, to take charge of the Pormpuraaw Aboriginal community.

(Emphasis added.)

496    Language can tell us much about the attitudes of individuals. In my opinion, this language reflects Inspector Whyte’s attitudes to Aboriginal people. I have noted at [490] above his rather astonishing and sweeping assertion about the level of alcohol abuse in the Pormpuraaw Aboriginal community. How he came to give that evidence should be placed in its full context. Inspector Whyte was being cross-examined about the record of interview he gave shortly after the protests and fires on Palm Island. The interview was conducted by Detective Sergeant Michael Walker at the Palm Island school between 9.55 pm and 10.54 pm on 26 November 2004. It was during this interview that he made the “blackie blackie” and “half caste” comments to which I have referred above.

497    The cross-examination concerned another statement in that interview where Inspector Whyte had said:

look, I have no problems with the Aboriginal people at all – none whatsoever. You know, at the end of the day, um, they will turn on you when they’re drinking alcohol and they’ll turn on you if they’ve got something that ah really makes them go off and this is obviously the death of Doomadgee person made them go off.

498    It was in the context of being challenged about the reasons he made these remarks, that in this proceeding Inspector Whyte said:

When I was – when I was the officer in charge of Pormpuraaw police division there were 600 Aboriginal people. There were two people that didn’t consume alcohol, to my knowledge in that community. My wife and I and our two boys lived in that community for three years, so I have an idea about Indigenous communities. I have an idea – a very big idea – about the issues alcohol causes communities and people.

499    With further questioning, the exaggeration inherent in this statement became obvious – Inspector Whyte had swept into his generalisation all people living in that community, including children. That is, he had been prepared, in his sworn evidence, to speak about a community, whose entire population was 600, as all drinking alcohol except for two people. He did so in an attempt to defend his earlier comments (as I set them out at [497]) which were grossly stereotypical, and pejorative, of Aboriginal people. This is no overzealous scrutiny of his evidence. In my opinion, these aspects of his evidence are revealing. Inspector Whyte was well aware of the seriousness of these proceedings, and of the circumstances in which he was giving evidence. He is also an experienced and long-serving police officer. That he was prepared to generalise – so obviously incorrectly about an Aboriginal community as part of an attempt to justify his previous evidence about Aboriginal people and alcohol reveals the prejudices that he carries, consciously or unconsciously.

500    As I have said, language can be informative, especially unguarded language. Inspector Whyte’s language on 26 November 2004 as recorded in the video footage was unguarded. So was his language in his record of interview, where he felt, I find, comfortable and comforted in speaking to a fellow white police officer. He felt safe to use language that revealed his attitudes to Aboriginal people: “blackie blackie”, “half caste” and the like. Those attitudes are derogatory as well as being racially discriminatory. It is obvious that, if asked to describe an Anglo-Australian suspect, Inspector Whyte would not say “whitey whitey”.

501    I am unable to place weight on Inspector Whyte’s evidence in relation to any issues of substantial contest or controversy.

Wednesday, 16 March 2016

Superintendent Rodney Kruger (SERT Operative 3)

502    Superintendent Kruger gave evidence on 16 and 17 March 2016. At that time, he was employed as a Superintendent in the Australian Federal Police (AFP). Prior to his employment with the AFP, he was an Acting Sergeant in the QPS SERT unit based in Cairns. He was employed by the QPS from 1994 until he joined the AFP in 2005. In November 2004, he had been a SERT officer for approximately eight years and was in the position of Acting Sergeant and acting team leader. He is referred to in the documentary evidence by the codename SERT Operative 3. He was involved in the arrest of Mr Wotton and was the SERT officer who tasered Mr Wotton.

503    His evidence related to the training he received as a SERT officer and his experiences and actions as a SERT officer during the operation on Palm Island. He gave an account of what occurred at Mr Wotton’s residence, including the tasering incident. He also gave evidence about his role in the arrests, entries and searches on a number of the other houses.

504    Superintendent Kruger was a careful and measured witness. He had little recollection of the details of the entries and searches, which is unsurprising given his ongoing role in SERT and the passage of time since November 2004. He accepted, properly, that SERT officers would appear intimidating to lay people caught up in an entry and search. Beyond this kind of concession, his evidence reflected his professional role and experience as a SERT officer, which is understandable. This example from his cross-examination about the tasering of Mr Wotton provides an illustration:

He told you, yes, he was Lex Wotton?---Yes.

And he had asked you why you wanted him to go on his knees?---I think so, yes.

And you didn’t answer him, did you?---I again asked him to get on his knees and put his hands above his head.

You repeated it, in a very loud voice?---Yes.

“Get on your knees”?---Yes.

And he had asked you why. That’s a fair enough question, isn’t it? He has got people pointing guns at him. Fair enough question to know why you want him to go on his knees?--- ..... sorry, is that a question?

Yes. It’s a fair enough question for him to ask, isn’t it?---I don’t know. All I know is that I directed him on three separate occasions, at least, to get on his knees and put his hands above his head. He did neither.

And he asked you a perfectly reasonable question, and you didn’t answer him. That’s correct, isn’t it?---What would I – what would I have said?

He asked you a perfectly reasonable question, i.e. why did you want him to get on his knees, and you didn’t answer him. Your answer was to taser him. That’s correct, isn’t it?---No. My answer was to ask him again to get on his knees, and put his hands above his head, and again.

To shout at him?---To ask him in a loud voice.

Yes?---A clear, loud voice.

Yes. You agree that there’s no police power to direct people to lie down on private property?---I don’t know.

You don’t know?---No.

Well, you’re demanding someone does something, and tasering them for not doing it?---No. I tasered him because I formed the assumption that he was going to attempt to flee being arrested.

505    When giving this evidence, it was apparent to me that Superintendent Kruger did not really comprehend how it could be “reasonable” or “fair” for a suspect he had been instructed to arrest to ask any question. Superintendent Kruger plainly believed that the suspect was to comply with what the suspect was ordered to do, and would be forced to comply if he did not do so voluntarily. That was how Superintendent Kruger had been trained to approach these situations, and that is how he did approach them. There was no room for debate, or for nuance. Undefined notions of ‘fairness’ were simply not part of the performance of his professional task. As far as he was concerned, all control lay with him and he would do what was necessary to apprehend Mr Wotton in as short a time and in as effective a way as could be done. That was what he had been instructed to do. Contrary to the applicants’ submissions, I do not consider there is a basis for criticism of Superintendent Kruger in this regard: he cannot be criticised for acting in accordance with the way he had been trained as a SERT officer. The problem, as I have set out elsewhere in these reasons, was having SERT officers undertaking these arrests at all.

Thursday, 17 March 2016

Sergeant Wade Folpp (SERT Operative 4)

506    Sergeant Folpp was, at the time of giving evidence, a sergeant with the AFP. He has been employed by the AFP since 2005. In and around November 2004, he was an officer in the QPS Cairns SERT unit. He had been a SERT officer for approximately two and a half years at that time. His team leader in the unit was Acting Sergeant Kruger. Sergeant Folpp’s evidence related to the events of the SERT operation on Palm Island, including, notably, the tasering and arrest of Mr Wotton by Sergeant Kruger and Sergeant Folpp’s own interaction with Ms Krysten Harvey during the entries and searches.

507    Sergeant Folpp was a very clear witness, who seemed well experienced in giving evidence. I found him more forthcoming than Superintendent Kruger, and he seemed more relaxed, with an open demeanour. However, like Superintendent Kruger, his evidence was structured around what he was trained to do in the circumstances of the entries and searches. His account of what he did when inside Agnes Wotton’s house was given in a plausible way, and I accept that he may well have done things such as lower his weapon and remove his balaclava, as he related he did. As I set out elsewhere, even if that was the case I do not consider it materially reduced or altered the terror which was induced in Krysten Harvey.

THE RDA: RELEVANT LEGAL PRINCIPLES

508    It is as well to begin this section of these reasons by extracting the provisions of the RDA that are of principal relevance to the discussion that follows. The extracted provisions are the same today as they were in November 2004.

509    Sections 8, 9 and 10 of the RDA are contained in Pt II of the Act, which is headed “Prohibition of racial discrimination”. The term “Convention” is defined in the Act to mean the ICERD. By s 7, approval is given to ratification by Australia of the ICERD, the text of which is set out in a Schedule to the Act.

510    Section 9 provides, in full:

Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)    Where:

(a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

(2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3)    This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4)    The succeeding provisions of this Part do not limit the generality of this section.

511    The text of s 9(1) closely tracks the definition of “racial discrimination” in Art 1(1) of the ICERD, which provides:

In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

512    Article 2(1) then provides for a range of ways in which states parties to the ICERD undertake to eliminate racial discrimination:

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a)    Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b)    Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c)    Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d)    Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e)    Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

513    Section 10 of the RDA provides:

Rights to equality before the law

(1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)    A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3)    Where a law contains a provision that:

(a)    authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b)    prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

514    Section 8 relevantly provides:

Exceptions

(1)    This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

515    Article 1(4) of the ICERD deals with “special measures” and provides:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

516    More so than provisions in other federal anti-discrimination statutes, s 9 is textually based on human rights law. Together with ss 8 and 10, it is unique amongst federal anti-discrimination statutes in its fidelity – in text, purpose and structure – to the international instrument which it implements: the ICERD. That fidelity has, in my opinion, at least two consequences. First, its general language, apt for an agreement between nation states in the field of international law, must nevertheless be given meaning capable of clear application to the determination and enforcement of private rights between persons under domestic law. See similar observations by Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225 at 275; Gerhardy v Brown [1985] HCA 11; 159 CLR 70 at 86 (Gibbs CJ); and Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [15] (French CJ).

517    Second, ss 8, 9 and 10 attract the well-established principle that, to the extent their text, context and purpose permits, they should be construed consistently with the ICERD: see Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168 at 264-65 (Brennan J); Applicant A at 230-31 (Brennan CJ), 239-40 (Dawson J), 251-52 (McHugh J), 272 (Gummow J), 292 (Kirby J); Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; 231 CLR 1 at [34] (Gummow ACJ, Callinan, Heydon and Crennan JJ); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [27] (the Court); TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 at [8] (French CJ and Gageler J); Maloney at [14] (French CJ), [235] (Bell J).

518    This is a different point from the issue raised by Gleeson CJ in Coleman v Power [2004] HCA 39; 220 CLR 1 at [17]-[24], where his Honour exposed the difficulties in an argument which sought to have the 1931 Queensland legislation in issue in that proceeding interpreted consistently with the subsequent ICCPR. That issue does not arise in the present proceeding.

519    Rather, the question is, in giving effect to the constructional assumption to which I have referred at [517] above, what kinds of materials can inform a conclusion on the meaning of the international text, and thus inform the constructional choices available in the statutory text? Two particular limitations arising from Maloney should be mentioned. In Maloney, the application of these principles was important because submissions were made about the nature and operation of s 8 of the RDA – what constituted a special measure’ for the purposes of s 8, and whether conduct could not be a special measure unless there had been adequate consultation with the community affected by the conduct. The submissions of the appellant and one of the interveners supporting the appellant relied on General Recommendation 32 of the Committee on the Elimination of Racial Discrimination (2009) and an opinion issued by another body established by the United Nations Human Rights Council: the Expert Mechanism on the Rights of Indigenous Peoples.

520    Four justices (French CJ at [23]-[24]; Crennan J at [134]; Kiefel J at [175]-[176] and Bell J at [235]) did not favour reliance on materials of this kind when there was little or no support in the text of either the ICERD or, more importantly, in ss 8, 9 and 10, for the approach being advanced. The consultation argument in Maloney was characterised by the Court as seeking to import into the ICERD (and as a consequence, it was said, into s 8) requirements, limits, or other meanings that the text “will not bear”: see for example French CJ at [24].

521    The applicants in this proceeding made no arguments of that kind, nor did the respondents submit that the applicants had done so. That is, in relation to the construction of s 9, the applicants did not advance any construction of that provision dependent on decisions or opinions of international bodies which was said to be more than the ‘text of s 9 can bear’. The controversies between the parties about the construction of s 9, such as they are (and they are in reality quite nuanced), can be resolved by an orthodox approach to the construction of the provision, taking into account the constructional assumption to which I have referred at [517] above. By far the larger sphere of debate between the parties concerns the application of s 9 to the evidence.

522    The second, but connected, limitation concerns the manner in which the decisions of international bodies (and perhaps also domestic courts in other jurisdictions) postdating the enactment of the RDA – but dealing with its interpretation – can be used to inform constructional choices about ss 8, 9 and 10.

523    In Maloney at [61] Hayne J said:

The Convention to which these provisions refer is the International Convention on the Elimination of All Forms of Racial Discrimination, which was opened for signature on 21 December 1965 and entered into force on 2 January 1969 (the Convention). The preamble to the RDA recites that the RDA “make[s] provision for giving effect to the Convention” and this Court has held that the RDA is a valid enactment of the Parliament because it implements Australia’s obligations under the Convention. Of course, resort may be had to the Convention in interpreting provisions of the RDA. But, because an Act like the RDA is to be interpreted “by the application of ordinary principles of statutory interpretation”, the only extrinsic materials that may bear upon that task are materials of a relevant kind that existed at the time the RDA was enacted. Material published later, such as subsequent reports of United Nations Committees, may usefully direct attention to possible arguments about how the RDA should be construed but any debate about its construction is not concluded by reference to or reliance upon material of that kind.

(Footnotes omitted.)

524    His Honour then appears to apply this opinion by rejecting the consultation arguments at [91]. Paragraph [61] ends with a “cf.” footnote reference to Gleeson CJ’s remarks in Coleman v Power but, as I have noted, Gleeson CJ was dealing with a different aspect of the use of international and comparative decisions in statutory construction.

525    It would appear that a different approach was taken by Bell J (at [236]) and Gageler J (at [324]-[328]), each Justice indicating that in construing ss 8 and 10 it was appropriate to examine the contemporary international understanding of the ICERD.

526    I respectfully agree with the approaches of Bell and Gageler JJ in Maloney. No submission was made by the respondents relying on reasoning such as that of Hayne J. Again, it does not seem to me that the parties have raised competing constructional choices about s 9 which can only be solved by reference to international or comparative decisions which postdate the enactment of the RDA. It is true that in some of the submissions concerning the content of various human rights relied on by the applicants, resort needs to be had to international and comparative decisions. I see no difficulty in that occurring, because s 9 itself gives relevance in Australian law to the content of those human rights. Their nature and content has not been rewritten or codified into Australian law. Rather, the international human rights themselves are incorporated by reference. That being the case, it is not only appropriate but, in my opinion, necessary to have regard to international and comparative decisions concerning the content of those rights. In Maloney at [236] Bell J said that “in light of the RDA’s object … it is appropriate to give weight to the construction that the international community places upon the Convention”, referring to the statement in Queensland v Commonwealth [1989] HCA 36; 167 CLR 232 at 240 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) that:

The existence of an international duty depends upon the construction which the international community would attribute to the Convention and on the operation which the international community would accord to it in particular circumstances.

I respectfully agree with both observations and I consider they apply to s 9.

527    In final submissions, there was some attention paid to the series of recent cases in Queensland, and in the High Court, concerning the application of the RDA to Aboriginal communities in relation to the scope and operation of Queensland’s liquor legislation. These cases are Maloney, Morton v Queensland Police Service [2010] QCA 160; 240 FLR 269 and Aurukun Shire Council v Chief Executive Officer, Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37; 1 Qd R 1. These decisions are important to a proper understanding of the RDA and its application in this case, especially Maloney. That is so notwithstanding they are all cases concerning s 10 of the RDA, together with s 8, rather than s 9. Sections 8, 9 and 10 of the RDA together comprise the core of the Parliament’s implementation of the ICERD: although each has its sphere of operation, when one examines the purpose and construction of any of these three sections, the other two must be considered.

528    In Maloney at [278], Gageler J commenced his analysis of the RDA with the ICERD and two antecedents to the ICERD. The first antecedent is the Charter of the United Nations, which, in Art 1(3), contains express reference to the purpose of promoting and encouraging respect for human rights and fundamental freedoms “without distinction as to race”. The second antecedent is the Universal Declaration of Human Rights (UDHR), which also emphasises the entitlement of all people to enjoy the rights and freedoms set out in the UDHR “without distinction of any kind, such as race”. His Honour then noted (at [280]) that both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) did not open for signature until after the ICERD opened for signature, although they had each existed in draft form since 1954. Gageler J’s description of the United Nations General Assembly resolution which preceded the ICERD should, with respect, be noted (at [281]):

The Convention was preceded in 1963 by a resolution of the General Assembly of the United Nations known as the “United Nations Declaration on the Elimination of All Forms of Racial Discrimination” (the Racial Discrimination Declaration). The Racial Discrimination Declaration affirmed both “the necessity of speedily eliminating racial discrimination throughout the world, in all its forms and manifestations, and of securing understanding of and respect for the dignity of the human person” and “the necessity of adopting national and international measures to that end” in order to secure the universal and effective recognition and observance of principles it went on to proclaim (paras 1-2). At the forefront of those principles were that “[d]iscrimination between human beings on the ground of race ... is an offence to human dignity” (Art 1) and that “[n]o State ... shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons ... on the ground of race ...” (Art 2(1)).

(Footnotes omitted.)

529    In Koowarta at 260, Brennan J expressed the opinion that “I should think that the implementing of that Convention by Australia must be of the first importance to the conduct of Australia’s relations with its neighbours, if not indeed to Australia’s credibility as a member of the community of nations.”

530    It is critical, as Allsop J observed in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.

531    The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.

532    The breadth of s 9(1) is clear from its source in the ICERD and its text, and is recognised in the authorities. Some textual matters may be emphasised. The provision attaches to “any” act, which emphasises its breadth, as does the reference to “any” human right or fundamental freedom. In examining the outcome or consequences of the impugned act, the text of s 9(1) requires a qualitative assessment of the impact of conduct because it deals not only with human rights which have been nullified, but human rights which are “impaired”. The provision is not confined to facilitating the exercise of human rights; it is protective of the rights themselves. Like the international instruments to which it owes its origins, s 9 is concerned with the inherent dignity and equality of all people in the Australian community. By requiring that each person has her or his rights recognised and protected “on an equal footing”, s 9(1) is concerned with substantive equality. Special measures to achieve substantive equality are, as Gageler J pointed out in Maloney (at [327]), not properly seen as an exception to the non-discrimination principle enshrined in ss 9 and 10, but rather as “integral to its meaning”.

533    What is comprehended by an “act” for the purposes of s 9 should also be broadly construed. Read with s 3(3) (“refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure”), it extends to the kind of conduct pleaded by the applicants in the present proceeding, which often focuses on the failures of the QPS to do what the applicants contend should have been done. Section 3(4) further confirms that breadth by providing that an “act” includes the doing of an act by a person in association with other persons.

534    The phrase “distinction, exclusion, restriction or preference” involves the concept of differential treatment. That is the sense in which Brennan J in Koowarta characterised these four matters as proscriptions (at 265):

The recognition, enjoyment and exercise of human rights and fundamental freedoms by all persons on an equal footing irrespective of race, colour, descent or national or ethnic origin is the purpose of the Convention to which Art. 1, cl. 1, in conjunction with other Articles (especially Arts. 2 and 5), gives effect. The denial or impairment of such recognition, enjoyment or exercise of human rights and fundamental freedoms is proscribed (“distinction, exclusion, restriction or preference”).

535    Similarly, in Gerhardy at 117-19 and also at 127-28, Brennan J described the operative concept in ss 9 and 10 of the RDA as being difference in treatment, or differential treatment, based on race.

536    In Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, Drummond J said of s 9 (at [38]):

This section is not directed to protecting the personal sensitivities of individuals. It makes unlawful acts which are detrimental to individuals, but only where those acts involve treating the individual differently and less advantageously to other persons who do not share membership of the complainant’s racial, national or ethnic group and then only where that differential treatment has the effect or purpose of impairing the recognition etc of every human being’s entitlement to all the human rights and fundamental freedoms listed in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination or basic human rights similar to those listed in Article 5.

(Emphasis added.)

537    In Baird, Dowsett J at first instance ([2005] FCA 495; 224 ALR 541) said (at [114]):

The allegation of employment by the Government is critical to the engagement of s 15 of RDA in these proceedings. However the allegation is also of importance in connection with s 9. That section applies to an act ‘involving’ a ‘distinction, exclusion, restriction or preference’ which is ‘based on’ race [emphasis in original]. In practice, each of the words “distinction”, “exclusion”, “restriction” and “preference” implies differential treatment of at least one person as compared to the treatment of at least one other [emphasis added].

538    In Qantas Airways v Gama [2008] FCAFC 69; 167 FCR 537, French and Jacobson JJ, with whom Branson J agreed, held that the act in that case – Mr Gama’s supervisor making remarks to him in the presence of his colleagues – involved a “distinction.” That was because Mr Gama, who was born in India and was of colour, was singled out for these remarks, while other colleagues around him were not. At [76], French and Jacobson JJ stated:

The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.

(Emphasis added.)

539    Although as Allsop J noted in Baird, s 9 does not require a comparator in the way that some federal and state anti-discrimination statutes do, that is not to gainsay the need for comparison. As Gleeson CJ said in Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; 235 CLR 232 at [7]:

Discrimination is judged by making comparisons.

540    The presence of the words “on an equal footing” in both Art 1(1) of the ICERD and s 9 of the RDA also requires some comparative analysis of the circumstances, albeit one that is not constrained by the complex comparator structure found in other federal anti-discrimination statutes.

541    The applicants forcefully disclaimed the need for a comparator, but I consider that disclaimer mistaken. Each case will vary in how the terms of s 9 are to be applied. Baird dealt with the payment of wages to Aboriginal people, and only to Aboriginal people. Nevertheless, the Court’s reasoning in Baird is not devoid of comparison: comparisons are made between what was paid and what should have been paid (see, eg, at [69] per Allsop J: “the acts of calculating and paying the grants involved a distinction by the calculation of the grants based on below-award wages, rather than award wages”). To observe, as Gleeson CJ did in Griffiths, that discrimination is about comparisons is not the same as contending that a “comparator” must be identified and defined for discrimination to be shown. The point is also made by the following extract from the reasons of Black CJ in Australian Medical Council v Wilson [1996] FCA 1618; 68 FCR 46 at 48 (cited with approval by Allsop J in Baird at [60], Spender J and Edmonds J agreeing), in which Black CJ highlights the language of “on an equal footing” appearing in s 9 of the RDA and Art 1(1) of the ICERD:

the concept used in s 9(1) and in s 9(lA) of impairing the enjoyment of a right on an equal footing must be taken to be a broad one that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination and the other like types of discrimination that the Act aims to eliminate. The language used in s 9 does not point to any narrower operation, in my view, and nor does the evident policy of the Act.

542    The respondents suggested some comparison was required and, in my view, that submission is correct.

543    In Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1 at [78], McHugh and Gummow JJ described aspects of the concept of discrimination for the purposes of refugee law and drew parallels with the concept of discrimination in s 117 of the Constitution:

The selective enforcement of a law of general application may result in discrimination between complainants which produces, in the legal sense, discrimination against one group of complainants. In Street v Queensland Bar Association, when dealing with the phrase “disability or discrimination” in s 117 of the Constitution, Gaudron J said:

“Although in its primary sense ‘discrimination’ refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is ‘discrimination between’; the legal sense is ‘discrimination against’.”

(Footnotes omitted, emphasis in original.)

544    This same approach – differential treatment without justification – is integral to the ICERD, and to ss 8, 9 and 10. Sections 8, 9 and 10 of the RDA, and the ICERD, are at base concerned with eliminating the unjustified differential treatment of people on the basis of race. It is the assessment of the difference in treatment and its basis in race which is the gravamen of the prohibitions. In Maloney, Gageler J emphasised this in the following passage (at [335]):

A difference in the extent of enjoyment of a human right is similarly a question of degree. In the context of s 10 of the RDA, it is a question of degree to be answered in light of the principles and objectives of the Convention. Construed against the background of those principles and objectives, persons of one race will enjoy a human right “to a more limited extent” than persons of another race where a difference in their relative enjoyment of a human right is of such a degree as to be inconsistent with persons of those two races being afforded equal dignity and respect. The relevant indignity or want of respect lies in the difference in the levels of enjoyment of a human right by persons of the two races rather than in the absolute level of enjoyment by persons of the disadvantaged race. The significance of a difference can be affected by contextual factors, which may include racial targeting or presumptions about the characteristics of racial groups just as they may include ignorance or lack of consideration of the characteristics of racial groups.

545    Although Gageler J employs the language of s 10 (“to a more limited extent”) rather than the language of s 9 (“nullifying or impairing the recognition on an equal footing”), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference.

546    “Race” and the related attributes in s 9 are not defined in the RDA or the ICERD. Australian courts have relied heavily on the decisions of foreign courts in determining the meaning of these terms. In Eatock v Bolt [2011] FCA 1103; 197 FCR 261, Bromberg J considered the meaning of the terms “race, ethnic origin, and colour” in determining whether Australian Aboriginal people are a race and have common ethnic origins for the purposes of the RDA. In doing so, his Honour canvassed some of the central foreign cases which examine the meaning of these terms (at [312]):

In King-Ansell, the New Zealand Court of Appeal (Richmond P, Woodhouse and Richardson JJ) was asked to construe s 25(1) of the Race Relations Act 1971 (NZ). An element of an offence under that section included intent to excite hostility or ill will against a group of persons on the grounds of colour, race, or ethnic or national origin of that group. The Race Relations Act 1971 was enacted including in order to implement CERD. In that context, Richardson J considered the meaning of “race” and “ethnic origin” and stated at 542:

Race is clearly used in its popular meaning. So are the other