_Hurley v Clements & Ors_

District Court of Queensland|2008-12-18|Before: Mr P

**[1] This is an application on behalf of Christopher James Hurley against a finding of the First Respondent dated 27 September, 2006, "that the Appellant lost his temper and hit Mulrunji after falling to the floor inside the Palm Island Police Station, thereby causing the fatal injuries to Mulrunji be set aside ..." The application seeks further relief. The date mentioned is that upon which the Acting State Coroner published findings in respect of Cameron Doomadgee's death.

[2] Pursuant to s 45(2) of the Coroner's Act 2003 the Coroner inter alia pursuant to s 45(2) of the Act "must, if possible, find": (a) ... (b) ... (c) ... (d) ... (e) what caused the person to die.

[4] It is specifically the finding that Senior Sergeant Hurley responded "with physical force" and that he hit Mulrunji whilst he was on the floor "a number of times" that are challenged pursuant to s 50(5)(d). This leads to a suggested erroneous factual finding pursuant to s 45(2)(e). In the applicant's outline (para 19) it is said in "accepting ... Roy Bramwell ... the Coroner necessarily rejected a finding that the fatal injuries were caused in the course of the fall". The question is whether or not the affirmative conclusion formed as to the cause of death can reasonably be supported on full review of the evidence, including a consideration of the inferences that ought reasonably be drawn from that evidence. Whilst the finding specifically defined in paragraph 1 does not refer to the finding Senior Sergeant Hurley fell beside Mulrunji, and something has been made of this in submissions, I propose nonetheless to give consideration to the alternative hypothesis of accidental death. I do not think the Coroner's relevant findings can be considered without doing so.

[5] During March, April, August and October 2005 and February, March and August 2006 in her capacity as Coroner, Ms Christine Clements conducted an inquest into the death of Cameron Doomadgee, who was also known by his tribal name, Mulrunji. She made many recommendations as a result of the inquest.

[6] At the inquest the deceased was referred to by his tribal name and I shall do likewise in the course of this decision. I shall refer to Senior Sergeant Hurley as Hurley. I shall refer to the Acting State Coroner as the Coroner. I shall refer to some of the witnesses by reference to their surname. No disrespect to anyone is intended.

[7] The evidence can be conveniently dealt with by dealing firstly with Mulrunji's arrest; secondly with what happened between the police vehicle and the police station; thirdly, within the police station, and finally the medical evidence.

[8] The deceased was arrested for public nuisance, offence shortly before 10.30 a.m. on 19 November 2004. Hurley had earlier attended the Palm Island Hospital to investigate a complaint. Three sisters, one of whom was the de facto of Roy Bramwell had been assaulted by Bramwell. One was seriously injured to the extent that she was airlifted to Townsville for further treatment. In anticipation of some further trouble, Hurley was asked to escort the remaining sisters home, one was dropped off and the other taken to pick up her medication from the Bramwell house, in Dee Street.

[9] When police arrived outside the Bramwell house, a young man, Patrick Bramwell was swearing at the police. He was intoxicated. Patrick Bramwell's grandmother complained to police about that behaviour and he was arrested by Hurley.

[10] Police Liaison Officer, Lloyd Bengaroo was also present when Bramwell was being arrested. Mulrunji walked past at that time challenging Police Liaison Officer Bengaroo suggesting he should not assist in locking up his own people. Mulrunji was also intoxicated. He was found to have a blood alcohol concentration of .292% on post mortem. He was advised by Bengaroo to keep walking unless he also wished to be locked up. Hurley had not heard that conversation but soon afterwards asked Bengaroo and was informed what had been said. Hurley and Bengaroo say they were sworn at before Mulrunji was arrested. If the matter had proceeded to prosecution there may have been a question of whether Mulrunji had in fact sworn at police and if so, a public nuisance offence had been committed. Mulrunji did keep walking down the street, but there is then evidence that he turned and swore at the police officers, and was soon after arrested by Hurley who had driven the police vehicle to where Mulrunji then was. Bengaroo said he heard Mulrunji ask Hurley why he was being locked up and Hurley tell him he was being arrested for a public nuisance offence.

[11] Hurley and Officer Bengaroo took the remaining sister home and then arrived at the police station with Patrick Bramwell and Mulrunji, who had each been secured in a cage on the back of the police vehicle.

[12] Mulrunji was the first person taken into the police station whilst Patrick Bramwell remained in the caged area at the back of the police vehicle. I approached the assessment on the basis that although the Coroner favoured alternatives to arrest, she did not allow that to influence her final conclusion.

[13] Mrs Sibley said she saw Hurley open up the cage of the police car that she saw Mulrunji swearing and being very abusive toward Hurley. She said Mulrunji was drunk and she saw him punch Hurley in the face. Hurley was then observed to grab Mulrunji and pull him out of the car. She said then that another police officer assisted Hurley to drag Mulrunji into the police station. She said that there had been three police officers in the police vehicle. She said she saw Hurley punch Mulrunji. In the various statements and oral evidence of Mrs Sibley, there was a variation which might not seem to be particularly significant as to where on Mulrunji's body there was physical contact to the hip between the hip and ribs or below the ribs. Of much greater significance was an initial statement Hurley delivered a blow to the head. Apart from the manhandling of Mulrunji, and variations as to whether there had been a punch, blow or clip, a single application of force was described. There was a variation with respect to the force of the blow being described as a jab to the hip and head with the words "a clip" being added to the force of the hit to the head. There was a further variation as to whether the fist was or was not clenched. The blow was described as a punch with full force with a closed fist more than once at different times but on another occasion, the witness said she did not see a fist formed and she did not know whether a fist had been formed. The last mentioned evidence emerged in cross-examination. It appears her evidence was unreliable as to there being three police officers in the police vehicle, and her evidence that two police officers were involved in bringing Mulrunji to the police station from the vehicle finds little support except that it is to some extent supported by the witness, Roy Bramwell who said two police officers were carrying Mulrunji into the police station. He also said two police officers were dragging Mulrunji into the police station. In the last mentioned context the Coroner accepted evidence that only Hurley had been involved in bringing Mulrunji into the police station.

[14] Mr Alfred Bonner's evidence was to the effect that when looking into a darker area he saw Mulrunji and Hurley were moving from the police vehicle to the police station, he observed a struggle. Hurley's back was facing him. He said he also observed an arm action which suggested a blow being delivered to Mulrunji.

[15] Hurley's evidence was that with respect to this aspect that he had not punched Mulrunji. That there was a struggle to take him from the police vehicle to the police station was not in issue. He said he was not assisted by anyone.

[16] Roy Bramwell, later convicted on the assault allegations that had first been investigated by Hurley at the hospital, was brought to the police station by Sergeant Leafe. Leafe had been asked to take Roy Bramwell to the police station so that he could be spoken to about the assault allegations. Roy Bramwell was seated and asked to wait by Leafe. Roy Bramwell remained waiting seated when Mulrunji and Hurley entered the police station. Somewhat later, without being interviewed, on Hurley's account, because of his level of intoxication, he left the police station without being interviewed.

[17] In the course of the argument before me, I was shown a diagram which indicated agreement as to where the witness, Roy Bramwell, was seated by Police Officer Leafe when he was waiting to be interviewed. As has been noted, in inconsistent accounts he said he saw two police officers drag Mulrunji into the police station, two police officers carry him into the police station and drop him or one police officer carry Mulrunji into the police station. Roy Bramwell was inconsistent in his evidence as to whether he remained seated or stood up at relevant times. The geometry suggests his capacity to observe would be unlikely to be improved significantly by standing. It was common ground before me that upon entering the police station, Hurley and Mulrunji tripped on the step into the police station and/or tripped over one another and fell to a concrete floor covered with lino. Following that fall, feet and legs were observed by Roy Bramwell, save he also described an elbow action of Hurley. He gave no description of the position of legs. There is no suggestion Hurley moved back into his line of vision, but he said he observed an elbow action above a filing cabinet, when Hurley was bent over. The Coroner accepted this in her reasons, finding Roy Bramwell was seated when the observations were made. When Hurley was informed of Roy Bramwell's description of the elbow movement in the course of an interview Hurley said "...if that's what he says then maybe he said this. I don't - don't know."

[18] Roy Bramwell was consistent over a number of statements and in his evidence in saying that he had heard Hurley say, "Do you want more Mr Doomadgee? Do you want more?" He said he did not hear any hit or blow being delivered. The only other identified consistency was that Mulrunji had been dragged by police into the watch-house. Nobi Clay's evidence was he heard Hurley said, "Shut up Mr Doomadgee. I'm locking you up."

[19] Hurley and Sergeant Leafe's evidence was to the effect that Hurley had said, "Get up, Mr Doomadgee. Get up." Hurley told Detective Inspector Webster he thought Mulrunji was "fooling around" in not getting up.

[20] Mulrunji was 181 centimetres in height weighing 74 kilos. Hurley was a much larger man being 200.66 centimetres in height. He was of proportionate build.

[21] Hurley had said in all interviews that he had fallen beside Mulrunji onto the concrete floor. At the time of the coronial enquiry, when informed of the nature of the injury, without indicating a variation in his recollection he stated that he accepted the possibility that he may have fallen onto rather than beside Mulrunji.

[22] Hurley referred to grabbing Mulrunji by the shirt when removing him from the locked cage. There is no evidence the shirt was damaged at that time. In an early interview, Hurley had said "The struggle moved into the station where we were on the ground because - the step up". Hurley was asked how he had fallen. He said, "I fell to the left of him and he was to the right of me; He said that he fell "because I was trying to grab him and he was trying to get away". Later he stated that he was the only person who was involved with Mulrunji at that stage. He was again asked, "You said as a result of the struggle you fell because of the step; is that right?" "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." He said no-one was assisting him then but Leafe later assisted him to drag Mulrunji into the cell. He was asked the specific question, "And you didn't land on top of him?" "No, I landed beside him on the lino." That conversation took place in the first interview.

[23] In a second interview on 20 November Hurley in response to a question about having stated that he was trying to pick up Mulrunji by the shirt said, "I picked up like to a certain ... but his shirt kept ripping. I picked him up a couple of times." This statement was made to Detective Inspector Webster before the cause of death was known.

[24] In the same interview he was asked "You more or less said you tripped as you came through the door," and Hurley responded "because of the fact that, well, most likely because of the fact two of us trying to get through the door and, I ended up on my knees beside him and he was here." He then gave an indication as to where that was to Detective Inspector Webster.

[25] There was a further interview on 8 December 2004. He denied any punching of Mulrunji at any time. He was asked what type of fall was it in reference to how Hurley and Mulrunji had fallen to the floor in the police station to which Hurley responded "I had hold of Doomadgee and we both came through over the step and through the door at the same time and I recall I fell to the left and he was to the right, but I had hold of him the whole way down until we hit the floor and um, his - uh - the one thing that I recall was - uh - his head went close to hitting a filing cabinet and the door frame but I noted that it didn't; that was a relief at the time." In the course of the struggle there had been some contact with the Amplimesh grill protecting the police station window. By demonstration and words he denied physical contact which would explain the injuries which Mulrunji suffered.

[26] When questioned again about Roy Bramwell saying that he had seen Hurley's arm moved three times down towards Mulrunji as he lay on the floor in a punching motion Hurley's response was, "The only possible explanation I can say for that, I did not punch Doomadgee, I was trying to raise Doomadgee off the floor using the shirt again, but the shirt kept ripping."

[27] At the coronial inquest, Hurley was questioned about what had been said by him earlier in the context of the fall. He referred to Mulrunji being a person of his own age and being sick in the stomach that he was dead at the time he was being interviewed. He maintained his recollection that he had fallen beside Mulrunji and pointed out that if he believed he had fallen on him he would have told the investigators that at the time. He said that he simply did not have any recollection of his knee or his elbow going into Mulrunji in the course of the fall. He had seen a little bit of blood above the right eye of Mulrunji and what he described as a little bit of swelling there.

[28] It was put to Hurley at the coronial enquiry that after the fall he got up and in a flash of anger rammed his knee into Mulrunji. That was denied. It was not at any time put to Hurley in cross-examination that he had punched Mulrunji after the fall. Hurley had of course denied any violence of that kind in earlier interviews. It will be seen however that medical evidence supported a single significant application of force as the cause of death. No medical evidence supported a series of "punches" or "hits".

[29] Constable Steadman who had arrived at Palm Island on the day previously to commence duties on the Island, indicated that he had observed a struggle between Mulrunji and Hurley as they came to the police station. He indicated that they had tripped over one another on the stairs and that they had fallen to the floor together. He was not in a position to see whether Senior Sergeant Hurley had hit Mulrunji because his view was restricted. He said it appeared to him that Hurley had landed on top of "the other person". In this context he said that he saw Hurley's boots on top of Mulrunji's feet. Steadman also said more than once it appeared to be a heavy fall. He said he heard the impact of them hitting the floor

[30] Constable Steadman did not hear what was said. Steadman said he heard Hurley yelling at Mulrunji in an abusive tone. He described it as being to an "extent" abusive without being "full on".

[31] When Lloyd Bengaroo was first questioned by the investigating police at the time of a re-enactment he indicated he was in a position from which he ought to have been able to make observations. He said during the course of the re-enactment that "Mulrunji flopped against the floor and Chris fell on him...Chris was...trying to pick him up." Later at the inquest he said Mulrunji and Hurley fell "side by side".

[32] I shall set out in full the coronial findings with respect to the medical evidence.

"The original autopsy examination of Mulrunji's body was performed by forensic pathologist, Dr Guy Lampe. This occurred on 23 November 2004 at the Cairns Base Hospital mortuary. A second autopsy was performed in Brisbane on 30 November 2004 by Associate Professor David Ranson. Professor Anthony Ansford and Dr Byron Collins were also in attendance together with Dr Guy Lampe.

The only external sign of injury was a small oval abrasion in the centre of the right eyebrow measuring 0.4 centimetres by 0.2 centimetres which was bleeding slightly. The right upper eyelid was swollen but there was no haemorrhage of the right eye. The second autopsy examined the right eye area below the skin surface. There was a small amount of contusion (bruising.) The second autopsy also found some deep bruising immediately adjacent to the right side of the mandible and a small (3 centimetre) scalp contusion on the right frontotemporal region of the scalp.

Dr Lampe noted that there was no abrasion or boot or shoe impression on the anterior (front) abdominal wall, or the lower chest.

The right sided rib cage showed lateral to anterolateral fractures of four ribs, from the sixth to the ninth inclusively. There was no associated contusion of the muscle area above the fractured ribs, but there was some internal haemorrhage of the muscles above and adjacent to the eighth and ninth rib fractures.

The most significant finding was in the peritoneal cavity. There was at least one and half litres of blood and clot. The liver was virtually completely ruptured- "... cleaved in two" in Dr Lampe's words. The two halves of the liver were only connected by some blood vessels. The portal vein had an oval hole along its posterior surface measuring 1.5 by 0.7 centimetres which was along the line of the contusion extending through the soft tissue. There was localised haemorrhage to the pancreas adjacent to the peri-duodenal haemorrhage.

Both autopsies concluded that the cause of death was intra-abdominal haemorrhage, due to the ruptured liver and portal vein.

The consensus of medical opinion was that severe compressive force applied to the upper abdomen, or possibly the lower chest, or both together, was required to have caused this injury.

I accept that evidence and rely upon it in considering the evidence in this inquest to explain how this injury was caused to Mulrunji.

All the expert medical evidence also concurred that a fall together, side-by-side, of the two men onto a flat surface was unlikely to have caused the injury that occurred. I accept that evidence.

Medical witnesses were asked to consider whether the application of a knee or an elbow, whilst Mulrunji was on the hard flat surface, either during or separate to the fall could have caused the mechanism of injury. This was accepted as a possible means by which the injury could have occurred.

Dr Lampe noted that the reported changes in Mulrunji's behaviour from aggressive prior to the fall, to passive after the fall, suggests the events surrounding the fall are crucial.

It is noteworthy that the second autopsy did reveal bruising on the left index finger knuckle and right little finger. Again, this was said to be consistent with either punching, or injuries sustained in defensive moves, or during the fall onto the right side.

Finally there was a comment confirming that Mulrunji's blood alcohol content indicated he would have been significantly intoxicated. The blood alcohol level was 292 mg/100mL (0.292). His coordination would have been affected and he would have had less capacity to protect himself from injury in any altercation or fall.

Associate Professor Ranson's plain English language statement is helpful:

"In my opinion the death occurred from blood loss as a result of the liver being torn. I believe the liver injury was the result of forceful pressure being applied to the front of the upper abdomen or stomach area. This force squeezed the liver by pushing it up against the front of the spine so that it was nearly split in half."

"A complicated fall where the two individuals fall together from a standing position would not usually cause the liver laceration seen in this man unless during the process of the fall a small area of direct crushing pressure was applied to the front of the upper abdomen with the back or posterior lateral aspect of the body fixed against a hard surface ... ... ... If a large person were to fall in an accelerated or uncontrolled fashion on top of an individual who was lying on their back on the ground, such that a small part of their body, for example a knee applied a crushing type force to the upper abdomen, it is possible that such a liver laceration might be caused."

Associate Professor Stephen Lynch, who is a specialist general surgeon practising in the field of liver transplant surgery and treatment gave evidence. He discounted any physical possibility of Mulrunji having sustained the liver injury prior to the point of being removed from the police vehicle at the back of the police station. He said Mulrunji would not have been able to struggle, as the evidence suggests, if he had blood in his abdominal cavity at that time. His injuries must have occurred at the time of the fall or afterwards. This is again noteworthy because of the evidence that after the fall, and after Sergeant Leafe had returned from opening the cell door, Mulrunji was no longer resisting and required to be dragged to the cell.

He agreed with other medical opinions that signs of the abdominal injury could be masked by the degree of intoxication.

Most importantly, Dr Lynch was clear that Mulrunji's injuries were so serious that, even if their true nature had been appreciated at the time, it would have been impossible to stabilise his condition sufficiently on Palm Island to allow safe transfer to Townsville, even if a doctor had been in attendance at the time of injury and had commenced resuscitation immediately.

Dr Lynch also agreed with other medical opinions that Mulrunji's injuries were inconsistent with a simple fall through the door of the watch house. He also concurred that the mechanism of injury was a compressive force of very considerable magnitude to the right lower rib cage with the rest of the body otherwise immobilised.

Therefore, he said, the four fractured ribs, liver laceration and portal vein rupture could have occurred as a result of a single injury involving the application of a very considerable force anteriorly over the lower right ribs, with the torso otherwise immobilised (against the floor for example.)

Dr Lynch observed that Mulrunji was one hundred and eighty one centimetres tall and weighed seventy four kilos. He also observed that Senior Sergeant Hurley was approximately the height of the watch house door frame. Senior Sergeant Hurley himself informed the court that he was six foot seven inches tall (200.66 centimetres). His build was proportionate to that height.

"... combined mass of the two struggling men, falling together perhaps in an accelerated and less than controlled fashion through the doorway could generate considerable force. This force, if applied over a small surface area (for example a knee contacting the lower right ribs of the deceased) may have been sufficient to cause the injuries sustained.

Dr Lynch was taken by Mr Callaghan SC through a discussion of the mechanics of such a fall that might result in such an injury. At page 648 of the transcript Dr Lynch agreed that the force applied to Mulrunji's body must have been from the front (anteriorly) of the body or perhaps the right hand side of the body. He agreed that this logically would mean Mulrunji was on his back or on his left hand side. It would be difficult in such a scenario to then explain the injury to the right eye as being incurred in the course of such a fall.

The evidence is clear that Mulrunji died due to blood loss caused by rupture of the liver consequent upon blunt compressive force to the upper abdomen."

[33] The medical evidence did not reveal any bruising in the rib area. The rib fractures were subject only to minimal displacement. Extensive dissection at the time of the second autopsy was undertaken to determine whether there was evidence of deep bruising. None was detected. As can be seen the Coroner did refer to some bruising to the left index and right little finger of Mulrunji and some bruising in the region of the right eyebrow where a laceration was also noted.

[34] Dr Ranson was also asked in evidence whether the injury might be caused by Hurley standing up, leaning over and punching Mulrunji three times. Dr Ranson said that would not cause the injury. He said three jab like punches would not be sufficient to cause a liver injury of the observed severity.

[35] Dr Lynch referred to there being a need for a very considerable force to cause the injury and Dr Lampe and Dr Ranson stated a "severe compressive force" would be required.

[36] Dr Lampe also said in evidence, "I believed he sustained his injuries as part of this fall involving both parties at the watch-house. I sort of came to that conclusion at the time of the autopsy, and really my opinions haven't particularly changed at this point in time." He also said he favoured the view the injury to the liver arose by a single application of force.

[37] Dr Lampe's evidence that he favoured the view that a broader force such as a knee as distinct from a punch, kick, or stomping caused the injury. Again this preference was not referred to in the findings.

[38] He said, "The combined mass of the two struggling men falling together with perhaps in an accelerated and less controlled fashion through the doorway, could generate considerable force if applied over a small area, for example, a knee contacting the ribs may have been sufficient to cause the injury sustained".

[39] When comparing a fist to a knee as the potential source of the force he said, "I would favour a knee just because it's more easy to generate a whole area mass of the body anatomically through a knee than through a fist."

[40] The Coroner's specific findings under s 45(2)(e) of the Act appear close to the top of p 25 of the reasons and continue to p 27 and are as follows:**

"I find that Mulrunji did punch Senior Sergeant Hurley outside the police station as he tried to resist being taken into the police station. I

accept the evidence of Mrs Sibley, which was supported to an extent by Alfred Bonner. Senior Sergeant Hurley did respond to Mulrunji's punch by himself punching Mulrunji. I am satisfied that this was somewhere to the body area rather than to the head and occurred as the two men struggled outside the station. I reject Senior Sergeant Hurley's denial as untruthful.

**I find that both men fell through the entrance door of the police station. There was a concrete step before the door. The floor was concrete and covered with lino. The men had hold of each other before the fall.

I have considered carefully whether or not Senior Sergeant Hurley fell onto Mulrunji at this time. Senior Sergeant Hurley told Sergeant Leafe he had not. He repeated this version to every investigating police officer and the investigating officer from the Crime and Misconduct Commission. He told all of them that he had fallen to his left hand side, with Mulrunji to the right hand side.

I am not persuaded by Dr Lampe's opinion that people are not able to recall exactly what happened in complex events. Senior Sergeant Hurley was quite clear on every occasion, until he came to court, that he had not fallen on Mulrunji. Indeed it would seem commonplace that anyone would be able to say whether they had got up from a fall, either removing themselves from on top of another person, or up from a hard, flat, lino covered concrete surface.

In his evidence to this court Senior Sergeant Hurley merely said he must have fallen on Mulrunji. What has brought this change of recollection after repeated adamant accounts that he fell to the left hand side? The reality is that Senior Sergeant Hurley has become aware exactly of the nature of Mulrunji's injuries causing death. If he had not otherwise caused such injury to Mulrunji, then the injury must be explained in the fall.

In considering the plausibility of this belated recollection and reinterpretation of what must have happened, I consider the following.

Senior Sergeant Hurley still asserted that he was not put out by the fall and did not react against Mulrunji - a most unlikely response from a man who considered his lawful authority and personal position of power was being challenged, and in his own police station. Constable Steadman heard Senior Sergeant Hurley yelling in an abusive tone to Mulrunji immediately after they had fallen through the door.

From his position outside the door, Steadman then saw Mulrunji's feet being dragged along towards the cells. He could only see feet. He saw no more and waited for things to 'settle down' before entering the police station.

I find that Roy Bramwell was quite excited in giving his account at the re-enactment and there is some embellishment, but the basis of what he saw is credible given the overall sequence of events and the injury sustained. Despite a steady demeanour in court, Senior Sergeant Hurley's explanation does not persuade me he was truthful in his account of what happened.

I note Senior Sergeant Hurley's response to Roy Bramwell's allegation of three punches. Roy Bramwell could only see Senior Sergeant Hurley's elbow going up and down three times from where he was seated in the yellow chair. The photos, (photo 10) of this view show it was partly obstructed by the filing cabinet. But Senior Sergeant Hurley is a very large man. In the re-enactment tape he dwarfs even the tall Inspector Williams and makes Inspector Webber look very small. His head nearly touches the doorframe. He is 200.66 centimetres tall. Roy Bramwell said he could only see Mulrunji's feet and part of his legs as he lay on the floor. Senior Sergeant Hurley's evidence was that he did not see that Roy Bramwell was sitting in the yellow chair when he and Mulrunji fell through the doorway. Mr Bramwell said Senior Sergeant Hurley was bending over Mulrunji with his elbow going up and down three times. He couldn't see where Senior Sergeant Hurley's hand was, relative to Mulrunji's body. He was led into the suggestion by police that Mulrunji was being hit in the head. He also referred at this time to Mulrunji's shirt being ripped. And, most significantly he said these actions were accompanied by Senior Sergeant Hurley saying, 'Do you want more Mr Doomadgee, do you want more?'

Senior Sergeant Hurley's response was to deny the accusation of punching and to explain it as an attempt to lift Mulrunji by the shirt. The shirt kept ripping, thus causing him to perform a repetitive action which he says was misinterpreted by Roy Bramwell as punching. Both men have described in physical terms the action of the elbow going up and down. The description is reminiscent of what is frequently seen in football matches when hot headed players seemingly grab at shirtfronts, but take the opportunity to punch the opposition in doing so.

Contrary to his evidence I find that Senior Sergeant Hurley was angry when he was hit in the jaw by Mulrunji as he came out of the back of the police van. He expressed it himself that he was shocked at the challenge to his authority on Palm Island.

I reject Senior Sergeant Hurley's account that he then simply got up from the heavy fall through the doorway and went to assist the man who had just punched him and caused him to fall over. I find that he did respond with physical force against Mulrunji while Mulrunji was still on the floor.

I accept Roy Bramwell's evidence to the extent that he saw Senior Sergeant Hurley leaning over Mulrunji with his elbow going up and down three times. In particular I note that Roy Bramwell's account to the police recorded on the re-enactment video occurred prior to the release of the autopsy information, whereas Senior Sergeant Hurley's changed recollection and reconstruction of where he had fallen, occurred after he knew exactly what injury had caused Mulrunji's death.

Senior Sergeant Hurley's evidence was that he considered Mulrunji was still causing him a problem by not getting up. He was asked to respond to what Roy Bramwell had told police. Senior Sergeant Hurley explained that he was lifting Mulrunji and, as he did so, the shirt was ripping. There is evidence that indeed the shirt was ripped, but I am not satisfied with Senior Sergeant Hurley's account of how this occurred. Critically, there is what Roy Bramwell alleges he heard Senior Sergeant Hurley say - 'Do you want more, Mr Doomadgee. Do you want more?' I accept that Senior Sergeant Hurley did say this.

I am satisfied that on the basis of Roy Bramwell's account of what he saw and heard, together with the immediately preceding sequence of events, that Senior Sergeant Hurley lost his temper and hit Mulrunji after falling to the floor.

I find that Senior Sergeant Hurley's repeated clear statements that he fell to the left hand side of Mulrunji are in fact what occurred.

I find that Senior Sergeant Hurley hit Mulrunji whilst he was on the floor a number of times in a direct response to himself having been hit in the jaw and then falling to the floor.

I do not necessarily conclude that this force was to Mulrunji's head as stated by Mr Bramwell. He could not have been in a position to see Mulrunji's head from where he was seated. Mulrunji's feet and part of his legs was all he could see. It is open on Bramwell's evidence that the force was applied to Mulrunji's body rather than his head. This is also consistent with the medical evidence of the injuries that caused Mulrunji's death. It is also most likely that it was at this time that Mulrunji suffered the injury to his right eye.

After this occurred, I find there was no further resistance or indeed any speech or response from Mulrunji. I conclude that these actions of Senior Sergeant Hurley caused the fatal injuries.

Sergeant Leafe returned from opening the cells and Mulrunji was dragged away and deposited in cell number two. Patrick Bramwell was then similarly brought in and dragged to the cells.

There was no attempt whatsoever to check on Mulrunji's state of health after the fall and its sequelae. The so called checks on the two intoxicated prisoners in the cells was woeful, even excluding the possibility of serious injury having occurred. Neither officer remained in the cell for more than seconds on each occasion they entered to check the prisoner. It was not until Sergeant Leafe suspected that Mulrunji might in fact be dead, that any close scrutiny was made. No attempt at resuscitation was made by any police officer even when there was a degree of uncertainty about whether Mulrunji had died.

I find, in reliance on all the medical evidence and the video tape that Mulrunji was indeed deceased when Sergeant Leafe checked on him at the time recorded by the tape as twenty past eleven that morning.

I find that Senior Sergeant Hurley avoided the issue and sent family members away from the station after knowing that Mulrunji was deceased."

ANALYSIS AND COMMENT ON EVIDENCE IN CORONIAL FINDINGS WITH RESPECT TO THE ARREST

[41] Whilst acknowledging the potential relevance of lack of training, the Coroner made it clear in her decision, that in her view it was unnecessary to arrest either of them stating it was clear "from the evidence that Senior Sergeant Hurley felt the need to exert his authority". Various alternatives to arrest were raised. As noted, there had been a complaint from Bramwell's grandmother about Patrick Bramwell's conduct, and clear abuse directed at Bengaroo by Mulrunji. That is not to say it can be inferred the grandmother wanted Patrick arrested. Minds may differ as to whether the arrests showed Hurley "felt a need to exert his authority". The conduct of Patrick Bramwell and Mulrunji leading to their arrests was similar, with Bramwell's more serious. They were each abusive. Each was significantly affected by alcohol. Foul language was used in the street. Arrests in such situations may be seen as appropriate in the circumstances. The later service of Notices to Appear on abusive persons significantly affected by alcohol may well not be seen as practical in the circumstances. It is clear police regard arrest as an expedient means of dealing with such problems. One can infer such a course of action was a common place practice on Palm Island. It was not suggested Hurley's arrest of Mulrunji was malevolent. The Coroner found that "there is no evidence that Hurley arrested the deceased for vindictive or oppressive reasons". I do not think anything done by Hurley in the process of arrest justified a conclusion he "felt a need to exert his authority". However, the Coroner, correctly in my view, concluded what took place at the time of the arrest was of no assistance in determining what may or may not have later taken place at the police station.

[42] Although the coroner referred to "the overall sequence of events" in drawing an adverse inference against Hurley, I approach my assessment on the basis that although the Coroner favoured alternatives to arrest, the only potential limited relevance is that it seems clear the Coroner regarded Hurley as an authoritative figure. Whether it was also thought such a person might have problems with anger management is unclear. It is trite to say it does not follow persons who are authoritative figures become violent when upset.

COMMENT ON CORONIAL FINDINGS ON EVIDENCE OF WHAT TOOK PLACE BETWEEN THE POLICE VEHICLE AND THE POLICE STATION

[43] The blow to the head was an important inconsistency in Mrs Sibley's evidence. It was not referred to in the decision. The Coroner at least appeared to place some weight, by making reference to "the overall sequence of events", upon evidence of a punch at this time in an overall assessment of the evidence. The Coroner concluded there had been a blow delivered by Hurley. Hurley was entitled to use such force as was reasonably necessary. He was experienced and inferentially must have been called upon to do so on many previous occasions. The Coroner's conclusion was there was a punch which was in retaliation for a punch earlier delivered by Mulrunji when he was being taken out of the police vehicle. Mrs Sibley did not suggest a punch was thrown immediately after Hurley was punched. There was no accompanying words, which were attributed to Hurley, which not infrequently would accompany a blow delivered in anger.

[44] The parties appear to accept Florence Sibley was honest. The Coroner did say from her observations of Florence Sibley and Alfred Bonner that both appeared to be honest in the accounts they gave. That is accepted.

[45] The inconsistencies in Florence Sibley's evidence, which had very limited support from Mr Bonner, was such that it would be difficult to conclude that any specific blow with a clenched fist could be identified as having been delivered by Hurley, it being common ground there was a struggle. Assuming for the moment that a blow had been delivered by him, there would be further difficulty concluding that the force used was anything other than that required to meet resistance. I do not think an inference could be safely drawn that Hurley was acting in a retaliatory fashion, particularly since it was not delivered immediately after Hurley was punched, and was delivered in the course of a struggle. Accordingly, I conclude that whatever took place should not be seen as providing any assistance as to what happened in the police station. The Coroner having referred to "the overall sequence of events" makes this aspect relevant to whether Hurley "lost his temper and hit Mulrunji after falling to the floor ..." To be relevant there would have to be an inference to the exclusion of other inferences that the punch did not satisfy any anger and/or that the fall in some way re-activated or in itself caused anger.

[46] I do not think that Hurley stating he was shocked by having his authority challenged by Mulrunji safely leads to a conclusion he was angry. He is more likely to have regarded Mulrunji's non co-operation as of nuisance value. Hurley's comparative size, experience and strength against the smaller intoxicated Mulrunji was never likely to lead to any belief in Hurley that his safety was threatened.

[47] In summary I think there are a number of features in the evidence which indicate that, even if the finding a blow was delivered by Hurley, it should not have been seen as relevant on the basis of retaliation. Those features are as follows:-

(a) it is common ground there was a struggle after Mulrunji punched Hurley;

(c) Assuming Hurley punched Mulrunji it was between the police vehicle and the police station, and not therefore an immediate response to Mulrunji's punch;

(d) on any account Hurley delivered no more than one blow;

(e) there were no words attributed to Hurley which would indicate to Mulrunji anything done was retaliatory;

(f) Hurley was experienced, and it is should be assumed he had commonly encountered aggression and resistance from intoxicated persons;

(g) because of the multiple inconsistent descriptions of the "punch", to which I have already made reference, it would be difficult to define the nature of the blow delivered in the course of the struggle, and further difficulty defining any blow as an anger response rather than a blow designed to overcome resistance.

[48] It is for these reasons I think it unsafe to rely on any feature of the evidence before entering the police station as relevant to the issue to be determined.

COMMENT ON CORONIAL FINDINGS ON EVIDENCE WITHIN THE POLICE STATION AND WITH RESPECT TO MEDICAL EVIDENCE

[49] As to the evidence of Mr Bengaroo, the Coroner found that his evidence about what had taken place in Dee Street was valuable. There was nothing else in his evidence which the Coroner identified as reliable.

[50] It was said of Bengaroo that he "was careful not to see or intervene in a situation where he had no power to influence what happened". Such an observation of the witness does not seem to be to be probative to any substantive issue with one exception, to which I have already made reference. Mr Martin, assisting the Coroner, submitted that Bengaroo's evidence could not be relied upon. That seems to have been a safe course to recommend since he gave no probative evidence apart from what took place in Dee Street with the exception I have noted that during the re-enactment he said, "Mulrunji flopped against the floor and Chris fell on him ... Chris was ... trying to pick him up", saying later at the inquest Mulrunji and Hurley fell "side by side". The first version at least had some consistency with what I might call the accidental death hypothesis, and the second consistency with the account Hurley had given to investigators. The early version should not I think have been dismissed without consideration, because it had consistency with Stedman's evidence in the same context.

[51] As to Bramwell's evidence, the Coroner said:

"Bramwell said Senior Sergeant Hurley was bending over Mulrunji with his elbow going up and down three times. He couldn't see where Senior Sergeant Hurley's hand was relative to Mulrunji's body. He was led into the suggestion by police that Mulrunji was being hit into the head."

[52] The Coroner said dealing with Bramwell's evidence, "It's open on Bramwell's evidence that the force was applied to Mulrunji's body rather than his head. This is also consistent with the medical evidence of the injuries that caused Mulrunji's death".

[53] The Coroner also rejected Roy Bramwell's account of how Mulrunji came to be in the police station. She accepted the police account that there had been a fall.

"Senior Sergeant's Hurley's response was to deny the accusations of punching and to explain it as an attempt to lift Mulrunji by the shirt."

Soon after stating both parties had given a similar description in physical terms, the Coroner said; referring to the description of both Hurley and Roy Bramwell;

"The description is reminiscent of what is frequently seen in football matches when hot-headed players seemingly grab at shirt fronts but take the opportunity to punch the opposition in doing so."

On the rare occasions I have seen such actions my recollection is the head of the restrained player is attacked.

[55] What was accepted by the Coroner, relying on Roy Bramwell's evidence, was that Hurley, whilst standing, had delivered three punches to Mulrunji who was then lying on the floor. The Coroner found there was some "embellishment" in Roy Bramwell's account when he participated in a re-enactment. That part of the re-enactment that was embellished was not identified.

[56] After considering Hurley's statements in the course of interviews and a re-enactment rejecting the possibility that Hurley had fallen on top of Mulrunji, the Coroner found Hurley had not fallen on Mulrunji. In those interviews Hurley had indicated that he fell to the left of Mulrunji. Medical evidence suggested that if Mulrunji was on his back at the time the fatal force applied it would have been applied central and to his right of the rib cage, with alterations if he was lying to an extent on his left hand side. The Coroner suggested Hurley had said in evidence before her that he must have fallen on Mulrunji then queried what it was that "had brought about this change of recollection after repeated adamant accounts he fell to the left hand side." She referred to Hurley becoming aware of the nature of the injury. She referred to there being a "belated recollection" and a "reinterpretation".

[57] He was asked whether he believed the fall to the floor had been heavy and he agreed that it had been. Whilst as has been noted Hurley had indicated earlier that he and Mulrunji had fallen to the floor together, and the floor was concrete covered by lino, he had not previously been asked to describe the weight of the fall. There was other evidence supporting a heavy fall.

[58] On the basis that Hurley maintained his recollection at the coronial enquiry, as to falling beside Mulrunji, a concession that he may have fallen on top of Mulrunji in the light of the medical evidence might not appropriately be described as an "altered" or "changed position" from which an adverse inference could be drawn against Hurley. On his case, knowing the nature of the injury, and it always being the case that he had said they had fallen together. Reference to "belated recollection" or "changed" evidence appears to me to be an inappropriate description. Hurley's account they had fallen together needed to be considered. If Hurley was aware (as he repeatedly stated) he had not punched Mulrunji, when questioned after knowing the cause of death, he would have been foolish to reject the possibility the injury may have occurred in the fall.

[59] Whilst Counsel assisting the Coroner specifically suggested that Steadman's evidence had importance as to the cause of Mulrunji's death, neither the observations of the position of the feet nor the evidence of falling together were referred to in the coronial findings.

[60] I have had my attention drawn to the interview taken on the morning of 20 November 2004 between the witness, Roy Bramwell and Detective Senior Sergeant Kitching, in the presence of a legal officer. It cannot be said by reference to a transcript of that interview (vol. 6, p 1653) that there was anything in the way of a leading question which led Roy Bramwell to state at that point that Mulrunji was being struck in the head or face. He did agree that Mulrunji was trying to cover up his face with arms over his face by way of response to a leading question after he had stated Mulrunji had been struck in the face three times. The Coroner did not clearly accept that evidence from Bramwell, stating the punching was "not necessarily" to Mulrunji's head. There was a finding by the Coroner to the effect punching was somewhere to the body rather than the head. Evidence from Bramwell that Hurley punched Mulrunji in the head was an important inconsistency, which should not have been regarded as something induced by investigating police. The Coroner did find that Roy Bramwell could not have seen Mulrunji's head after the fall.

[61] It can be seen the Coroner has placed considerable weight on Hurley's repeated statements that he fell beside Mulrunji. Whilst she accepted Mulrunji's shirt was ripped she did not accept Hurley's explanation. It was not, I think, likely to have been ripped by punching, or in the described process by which Mulrunji was dragged into the watch house. The reference to the shirt being ripped was given to Detective Inspector Webber before the cause of death was known. To my mind the objective evidence of the ripped shirt, particularly having been raised by Hurley before the cause of death was known, has a greater consistency with Hurley's denial of punching than a contrary hypotheses which includes punching. It was accepted by the Coroner as objective evidence. Whilst not stated, one infers the Coroner thought the shirt was damaged by the shirt being held during a punching process.

[62] The Coroner's conclusion that punches were delivered by Hurley while Mulrunji was on the floor appears to have been fortified by what she described as the "overall sequence of events" and perhaps her understanding of the medical evidence having stated "this is also consistent with the medical evidence of the injuries that caused Mulrunji's death". As I have indicated, the medical evidence does not favour the conclusion the fatal injury was caused by punching.

[63] In the fifth paragraph of the findings above relating to the medical evidence, it can be seen that the Coroner said:

"There was no associated contusion of the muscle area above the fractured ribs, but there was some internal haemorrhage of the muscles above and adjacent to the eighth and ninth rib fractures."

This was the only reference to lack of external or internal bruising in the relevant area of Mulrunji's body.

No medical adviser was of the opinion a punch was the likely cause of the injury. It was not the favoured option. In my opinion, the medical evidence was significantly stronger than a conclusion that a knee or elbow in the course of a fall was "a possible means by which the injury could have occurred." Earlier in the decision (page 11) the Coroner did say "a knee or an elbow, with the body's weight behind it, could conceivably have caused the injury that Mulrunji suffered."

[64] I think in the light of the medical evidence that referred to the very high level of force needed to cause the injury, the absence of evidence of any person hearing any blow or blows being delivered after the fall ought to have been a feature worthy of some reference in the decision.

[65] As to the important question of the cause of death there are two competing hypotheses.

[66] The first is that the death was accidental. It would involve a finding that the fatal injury was caused in the fall, with Hurley's knee unhappily in a position to exert a sufficient force to cause the injury when they come in contact with the concrete floor. This would involve Mulrunji being under the much larger Hurley at the relevant moment.

[67] Counsel assisting the Coroner, advanced a hypothesis, as to the death being caused accidentally, but Hurley not being truthful to investigators, or on oath as to his recollection in describing the fall. It is one which I think should have received more attention in the decision.

[68] The Coroner rejected evidence from Dr Lampe that people are not able to recall detail in complex events. For my part, based on experience, I would not have needed expert evidence to persuade me that some people do have difficulty recalling the detail of simple or complex or traumatic events.

[69] I think that Hurley's early statement he was holding Mulrunji and they hit the floor together ought to have received attention. It was never Hurley's account that after tripping on the step Mulrunji and he were separated in the fall. Whilst it may have been foolish in later light of the medical evidence, Hurley may have given a false account, denying any physical contact with Mulrunji, both with respect to whether there had been an earlier punch or physical contact. He may have believed the fall itself could be the cause of death. This was an enquiry where at the end of the day, the Coroner concluded Hurley was untruthful, in some respects.

(a) Hurley delivered a punch out of anger in retaliation for an earlier punch by Mulrunji between the police vehicle and the police station.

(b) Hurley would have retained a detailed recollection sufficient to describe the punch and the fall in detail and Hurley knew that he had come down on top of Mulrunji in the police station after which he was clearly fatally injured, there was an incentive for Hurley to give a false account to investigators, which I think, consistent with the submission of counsel assisting the Coroner, required detailed consideration.

[71] The findings are Hurley was untruthful about punching Mulrunji when he was escorting Mulrunji to the police station, but truthful when he indicated no force was applied in the fall. Each account was one giving no room for physical contact from Hurley being the cause of Mulrunji evidence. That is why I think counsel assisting the Coroner appropriately recommended consideration of the prospect Hurley was untruthful in his accounts.

[72] It seems to me to leave open the question of whether, as to this hypothesis, Hurley was untruthful to investigators, in order to in his view at the time, exculpate himself from responsibility. It is difficult to reason that he was truthful about one proposition that he might reasonably believe would exculpate him, but untruthful about another body of evidence in which he denied punching Mulrunji between the police vehicle and police station and within the police station itself. Difficult though it may have been, there ought to have been explanation, particularly since it was raised by counsel assisting, as to why the hypothesis Hurley was truthful in describing falling separately was accepted. Whilst it would involve a conclusion, perjury had been committed, it was still an hypothesis consistent with an accidental cause of death, supported perhaps to a minor extent by Hurley's statement of his knees ending up beside Mulrunji, perhaps to a much lesser extent by Bengaroo's account on reconstruction, and Constable Stedman's evidence of the position of Hurley's police boots, no blow or blows being heard and no medical evidence indicating punches had been the cause of death.

[73] The hypothesis Hurley's account was truthful was rejected. This is related to punching or hitting Mulrunji after the fall. That Hurley had injured by means other than punching Mulrunji after the fall is not one supported by any evidence. It was denied. I have difficulty concluding any such proposition could ever rise above a suspicion, because a competing reasonable hypothesis was open on the evidence. Whilst the Coroner spoke of "hits" and "punches" it is not known if another application force such as by a knee to Mulrunji after the fall was considered and rejected.

[74] One wonders whether the Coroner's erroneous recollection Roy Bramwell had been led into alleging Hurley punched Mulrunji in the head played a part in accepting his account of what Hurley said to Mulrunji after the fall. The Coroner placed considerable weight on Roy Bramwell's account of what he said he heard. The elbow action was broadly consistent with either punching or trying to lift Mulrunji with the shirt ripping. The initial statement from Roy Bramwell to the effect Hurley punched Mulrunji to the head was important. He could not have seen such a punch and it therefore showed he was prepared at that time to falsely implicate Hurley.

[75] Even if the evidence of Leafe, Hurley, and Noel Clay was rejected, a question arises whether what Roy Bramwell said he heard after the fall, necessarily indicates Mulrunji had just been deliberately injured by Hurley. Hypothetically it could be suggested it was an enquiry whether he would co-operate or wished to continue the struggle with or without a punch on the way to the police station which concluded with a heavy fall. The Coroner described this as a "critical" finding. There had been on any account a continuous struggle from the police vehicle to the police station followed by the heavy fall. Similarly, speaking to Mulrunji to "an extent" aggressively or loudly on Stedman's evidence, can be understood. It would be consistent with Roy Bramwell's, Hurley's, Leafe's and Noel Clay's accounts of what was said. To my mind it does not assist in concluding Hurley attacked Mulrunji after the fall.

[76] From a reading of the coronial findings it would seem the conclusion Hurley had lost his temper because he had been punched by Mulrunji. It is common ground Mulrunji was resisting. It is difficult to conclude a police officer, who was experiencing something common enough in nearly twenty years service would have lost his temper, even after a fall. As I have already indicated, I think it would be dangerous to draw any inferences from what took place between the police vehicle and the police station. Nothing in that evidence supports a conclusion Hurley had lost his temper. I have formed a similar view with respect to what was heard and said within the police station. Thus, even if Roy Bramwell's evidence of what he heard said was accurate, it should not have been seen as "critical". Whatever the long term relationship Hurley had with Leafe, he had no such relationship with the very recent arrival, Stedman. There was no basis for Hurley to believe he would not report Hurley if he acted unlawfully.

[77] Assuming the Coroner was correct in concluding that there was a punch delivered by Hurley on the way to the watchhouse and that Hurley had said, "Do you want more Mr Doomadgee?" there needed to be consideration as to whether those facts lead as a matter of law to an adverse inference against Hurley to the exclusion of the competing hypothesis.

[78] In an overall appraisal of the facts in summary I conclude that:-

(a) Even if a punch were delivered by Hurley between the police vehicle and the police station with Hurley having been struck earlier by Mulrunji, to me it would not indicate the exclusion of other hypotheses that such a blow was delivered in anger.

(b) That even if the words, "Have you had enough Mr Doomadgee? Do you want more?" were stated and repeated, it does not lead to an inference to the exclusion of competing hypotheses that Hurley had punched and/or kneed Mulrunji shortly before such words were spoken. It was not therefore "critical".

(c) That the suspicion Hurley had delivered a blow with a knee to Mulrunji within the police station immediately after the fall is speculative on the evidence and there are some contrary indications indicating that it did not take place. It was not in any event a conclusion drawn by the Coroner. No person observed or heard such a blow. In this context the medical evidence indicated a substantial blow would be required. That is a circumstantial fact of significance.

(e) The medical evidence does not support punches having been delivered to Mulrunji. There was evidence from Bengaroo and Stedman supporting the proposition that Hurley had fallen on top of Mulrunji. That evidence went beyond speculation.

(f) There is objective evidence in the form a torn shirt which is consistent with Hurley's account.

[79] There at least the possibility here that by failing to make reference to Stedman's evidence concerning the position of Hurley's boots after the fall, and/or stating erroneously that Roy Bramwell had been lead into the suggestion that Hurley had punched Mulrunji in the head by police, and/or failure to consider a punch and/or a comment by Hurley does not necessarily lead to a conclusion he was acting in anger, and/or an apparent failure to fully understand the import of the medical evidence did not support the multiple blows being delivered, and/or the Coroner has failed to weigh the evidence always keeping in mind that alternative hypotheses needed to be considered and excluded before inferences adverse to Hurley could be drawn from proven facts. This did require consideration of whether Hurley was untruthful to investigators.

[80] At Hurley's Supreme Court trial, Roy Bramwell was not called as a witness, and the Crown did not suggest to the jury death was caused by punching.

[81] The trial was prosecuted on the basis that the jury were invited to consider the hypothesis Mulrunji's fatal injury was caused by Hurley applying force after the fall.

[82] It has been submitted on behalf of the Attorney-General that I ought to take into account that at Hurley's Supreme Court trial a no case submission was rejected by the trial Judge. That is upon the basis the trial Judge left open to the jury the question of whether by one process or another Hurley caused Mulrunji's death after the fall. I have seen my function to review the evidence before the Coroner, examine the Coroner's reasoning and come to a conclusion if possible, as to whether the challenged finding can be supported.

[83] Based on the evidence before the Coroner, the exposed reasoning, and the need to exclude a competing hypothesis of accidental death, reasonably open on the evidence, on the basis Hurley either:-

I do not think the inference adverse to Hurley can be supported.

[84] Section 45(2) of the Act requires a Coroner to "if possible 'find' ... what caused the person to die".

[85] One is mindful that a circumstantial case does not depend on any direct evidence. The Coroner found Hurley did not have physical contact with Mulrunji in a relevant way and thereby concluded the death must have been caused by punching from Hurley. I indicate that after taking into account the medical evidence, because there is evidence supporting the proposition Hurley fell on Mulrunji, and there are reasons why he said he did not fall on him, that despite what Hurley said, the hypothesis of an accidental death cannot reasonably be excluded. As I have indicated the medical evidence does not on my analysis support the death being caused by punching.

[86] Section 47 requires findings of a death in custody must be delivered to the Attorney-General and other persons in authority. I am not aware whether the coronial findings have been so delivered. Nonetheless, I think s 50(7) gives me only two options after setting aside a finding. I have chosen the option of s 50(7)(b) because I am aware the State Coroner did not conduct the inquest, and further disqualified himself from doing so. As to whether the reference ought to be to the Coroner who made the findings appealed against I think that is a matter for the State Coroner. The principles relating to actual or apprehended bias are well known.

[87] The oral and written submissions from all Counsel have been of considerable assistance. I record my gratitude.

[88] I am satisfied those findings cannot reasonably be supported on the evidence, within the meaning of section 50(5)(d) of the Act. It follows that the hypothesis the fatal injury occurred as a result of the fall cannot be excluded. I conclude the Coroner's findings are against the weight of the evidence. The Coroner was not obliged to refer to all the evidence. However, I think evidence supporting competing hypotheses was worthy of mention. It is not clear the weight of the medical evidence was understood. It can be seen I do not think some inferences against Hurley apparently significant in the decision ought to have been drawn.

[89] The specific findings "that the appellant lost his temper and hit Mulrunji after falling to the floor inside the Palm Island Police Station thereby causing the fatal injuries to Mulrunji and that Hurley had responded with physical force" and "hit Mulrunji whilst he was on the floor a number of times" are set aside.

[90] I order the State Coroner to direct another Coroner to re-open the inquest to re-examine the finding.

[91] I order the participating Respondents to pay the Applicant's costs to be agreed or assessed. I grant liberty to apply.**

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