Hurley v. Clements & Ors - [2008] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Hurley v Clements & Ors [2008] QDC 323

PARTIES:

Christopher James HURLEY
(Appellant)
and
Acting State Coroner, Christine CLEMENTS
(First Respondent)
and
Tracey TWADDLE
(Second Respondent)
and
Jane DOOMADGEE, Elizabeth DOOMADGEE and Valmai DOOMADGEE
(Third Respondents)
and
Michael LEAFE, Lloyd BENGAROO, Kristopher STEADMAN and Darren ROBINSON
(Fourth Respondents)
and
COMMISSIONER OF QUEENSLAND POLICE SERVICE
(Fifth Respondent)
and
PALM ISLAND COUNCIL
(Sixth Respondent)
and
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(Seventh Respondent)
and
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(Eighth Respondent)

FILE NO/S:

D 352/07

DIVISION:

Appellate Jurisdiction. District Court.

PROCEEDING:

Application to Review a Coronial finding as to cause of death.

ORIGINATING COURT:

Coroner’s Court

DELIVERED ON:

18 December 2008

DELIVERED AT:

Townsville

HEARING DATES:

9 & 10 September 2008

JUDGE:

R D Pack DCJ

ORDER:

The State Coroner to direct another Coroner to –

(1) Re-open the inquest to re-examine the Coroner’s findings.

(2) Successful application to set aside specific finding.

CATCHWORDS:

Coroners Act 2003 45(2), S. 45(2)(e), S. 50(5)(d), S. 50(7)(b)

COUNSEL:

Mr P H Morrison QC, leading Mr S W Zillman for the Applicant
Mr P Coombe for Second Respondent
Mr B Walker SC leading Mr G Mullins for the Third & Sixth Respondents
Mr P J Davis SC leading Mr J M Morton for the Eighth Respondent

SOLICITORS:

Gilshenan & Luton for the Applicant
ATSILS for the Second Respondent
Boe Lawyers for the Third & Sixth Respondents
Crown Solicitor for the Eighth Respondent

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.

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.

Section 50(5)(d) of the Act provides that the District Court may set aside a finding if satisfied that “the finding could not reasonably be supported on the evidence.”

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hurley v. Clements & Ors

Details

AGLC: Hurley v Clements [2008] QDC 323
Case: [2008] QDC 323
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of Hurley v. Clements & Ors was heard in the Supreme Court of Queensland. The dispute involves the inquest into the death of Mulrunji, with a particular focus on the actions of Constable Hurley during the incident. The central issue before the court was whether the Coroner's findings regarding Constable Hurley's use of force were appropriate and supported by the evidence. The court was required to determine whether the evidence warranted the conclusion that Hurley had used excessive force, specifically a retaliatory punch, against Mulrunji in the police station.

The court considered the Coroner's findings under the Coroners Act 2003, particularly sections 45(2), 50(5)(d), and 50(7)(b). It examined the evidence presented, including inconsistencies in the testimonies of witnesses Florence Sibley and Alfred Bonner. The court noted that while the Coroner referred to a punch delivered by Hurley, this was not substantiated by consistent or reliable evidence. The inconsistencies in Florence Sibley's testimony, combined with the lack of supporting evidence from Bonner, made it difficult to conclude that a specific punch by Hurley was definitively identified. Additionally, the court found that even if a blow was delivered, it should not be viewed as retaliatory, given the circumstances and the nature of the struggle.

The Supreme Court concluded that the Coroner's findings were not adequately supported by the evidence. The inconsistencies and the limited corroboration in the testimonies did not sufficiently establish that Hurley's actions were retaliatory or excessive. The court ruled that the Coroner should re-examine the evidence and reopen the inquest to reassess the findings concerning Hurley's actions. Consequently, the orders were made for the State Coroner to direct another Coroner to reopen the inquest and to set aside the specific finding regarding Hurley's use of force.

Orders

Orders of the court

The State Coroner to direct another Coroner to –

(1) Re-open the inquest to re-examine the Coroner’s findings.

(2) Successful application to set aside specific finding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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. 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. 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:-

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hurley v Clements & Ors [2008] QDC 323
PARTIES:	Christopher James HURLEY (Appellant) and Acting State Coroner, Christine CLEMENTS (First Respondent) and Tracey TWADDLE (Second Respondent) and Jane DOOMADGEE, Elizabeth DOOMADGEE and Valmai DOOMADGEE (Third Respondents) and Michael LEAFE, Lloyd BENGAROO, Kristopher STEADMAN and Darren ROBINSON (Fourth Respondents) and COMMISSIONER OF QUEENSLAND POLICE SERVICE (Fifth Respondent) and PALM ISLAND COUNCIL (Sixth Respondent) and HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (Seventh Respondent) and ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Eighth Respondent)
FILE NO/S:	D 352/07
DIVISION:	Appellate Jurisdiction. District Court.
PROCEEDING:	Application to Review a Coronial finding as to cause of death.
ORIGINATING COURT:	Coroner’s Court
DELIVERED ON:	18 December 2008
DELIVERED AT:	Townsville

HEARING DATES:	9 & 10 September 2008
JUDGE:	R D Pack DCJ
ORDER:	The State Coroner to direct another Coroner to – (1) Re-open the inquest to re-examine the Coroner’s findings. (2) Successful application to set aside specific finding.
CATCHWORDS:	Coroners Act 2003 45(2), S. 45(2)(e), S. 50(5)(d), S. 50(7)(b)
COUNSEL:	Mr P H Morrison QC, leading Mr S W Zillman for the Applicant Mr P Coombe for Second Respondent Mr B Walker SC leading Mr G Mullins for the Third & Sixth Respondents Mr P J Davis SC leading Mr J M Morton for the Eighth Respondent
SOLICITORS:	Gilshenan & Luton for the Applicant ATSILS for the Second Respondent Boe Lawyers for the Third & Sixth Respondents Crown Solicitor for the Eighth Respondent