Police Discretion and Criminal Justice

This paper evaluates police discretion when interacting with Indigenous people, examines the historical association between law enforcement and Indigenous people, and discusses the Doomadgee case.

Running Head: POLICE DISCRETION 1
POLICE DISCRETION AND CRIMINAL JUSTICE
Student’s Name
Course
Professor’s Name
University
Date

POLICE DISCRETION 2
Introduction
The main objective of this paper is to evaluate police discretion when intermingling
with the Indigenous people. First, we shall review the historical and the contemporary
association between the Indigenous people and the police All through Australia. Further, the
concept of police discretion will be elucidated. Drawing upon this knowledge, this paper will
examine how over policing, and the laws have contributed to the discretionary problem
towards the Aboriginal and Torres Strait Islander people. Lastly, we will discuss the
Doomadgee case in relation to police discretion and how it resulted in the death of Mr.
Mulrunji Doomadgee.
The Association between Law enforcement agency and Indigenous People
The interaction between law enforcement officers and the Aboriginal and Torres
Strait Islander people can only be understood by revisiting the history of the Aboriginal and
Torres Strait Islander peoples in Australia since the arrival of Lt James Cook in 1770. He
made a declaration that the land should be known as New South Wales and this paved way
for the annexation of land by European immigrants in 1788 (Fast, & Collin-Vézina, 2010).
The settlers achieved this through violent massacre to disperse the Indigenous people .As a
result, Many Aboriginals were tortured and killed by settlers who claimed that the land did
not have legal owners. This was followed by dislocation and removal of aboriginals from
their native land and this became their first relationship with the law enforcement agencies.
Their contact with police was hostile and according to Shane, (2010) any resistance was met
with punitive act or even killings by law enforcement officers under the then authoritarian
government acts. Law enforcement officers were utilised as an extension of the British
control, further increasing the mistrust of the Native people.

POLICE DISCRETION 3
The social system of the Aboriginal and Torres Strait Islanders was considered
primitive and as a result, they were treated as subjects to their British colonisers on the bases
that they were believed to be a failing civilisation. The notion that the Indigenous people
were sub-human resulted in rapid decline of their population through massacres,diseases
among other challenges. However, Stumpf, (2015) indicates that increasing interracial births
between the Aboriginal and Torres Strait Islander people with the non-indigenous people
offered a new incentive to discriminate against and control their population between the
1840s through to the 1960s.
According to Cao, (2014), the protectionist period was viewed by the Europeans as a
way of safeguarding the aboriginals from unforgiving treatment which involved relocating
huge populations of aboriginals onto missions and government-regulated facilities. Police
were their guards in these facilities and their responsibility was to monitor all aspects of their
lives .Those who attempted to escape were chained from their legs to the neck once they were
arrested. Later, the New South Wales Aborigines Protection Act 1909 (NSW) was introduced
and gave police the power to make certain decisions towards the native Australians such as
food rationing as a way of convincing them to comply with the rules and separation of
children from their parents. Policing, (2012) indicates that the main intention of these
activities was to further disorganise the normal lives of the Aboriginals. The new rules
increased the dependency of the Aborigines upon the government and the police, their culture
was stripped away and their land and resources were occupied at an accelerated rate.
The foreseeable separation of children and their parents was envisioned at
assimilating the indigenous people into the White society and completely eliminate their
heritage. Nevertheless, According to Comack, (2012), a majority of the children were
identifiably aboriginals and thus were still not allowed to interact with the non-native
communities. The lifelong impact of the laws left deep hate towards law enforcement officers

POLICE DISCRETION 4
and their excessive use of authority in which they were granted. Not all law enforcement
officers agreed upon the idea of “institutionalising race” but still the indigenous people
considered them as “intolerable and cruel.”
The Doomadgee Case
Law enforcement officers often contribute to what the society views as racial
discrimination because they are trained to apply their discretion while carrying out their
duties. These race and ethnicity factors are usually associated with a higher likelihood of guilt
to committing an offence, thus it is an issue that is viewed by most police officers as
fundamental when making important decisions (Fast, & Collin-Vézina, 2010). The process of
making decisions and reasoning based on race is strictly unlawful because discretion is a
science which is driven by specific rules and regulations (Berendt, Cunneen, & Libesman,
2009). Nevertheless, it is a challenging process to prove before a judge in court on the
application of race and ethnicity in warranting the arrest of an individual.
In 2004, Queensland resident, Palm Island, Doomadgee passed on while in police
custody. His tribal name was Mulrunji. When he passed on in police custody, there were
multiple public unrests which resulted in media, political and legal pressure that continued for
another three years (Dudgeon, et al., 2010).The person of interest in the entire issue was an
Australian police officer. He was taken for a court trial for the first time since the
establishment of the office of public prosecution. After a series of hearing the charges against
the person of interest were dropped by a jury in 2007(Dale, & Krawitz, 2011).The major legal
questions that came up from Mulrunji’s death was: Was Mulrunji’s taking into custody
lawful? Did he die due to injuries inflicted on him by the police officer?
The officer who arrested Mulrunji was solely responsible for the injuries inflicted on
him. Ideally, Mulrunji’s demise raised further political questions concerning the rules set by

POLICE DISCRETION 5
the Royal Commission of 1990. The purpose of establishing the commission was to prevent
more deaths of Indigenous people while in custody. It was questionable whether the
committee’s proposals had been affected by the government or they were disregarded
altogether (Cunningham, & Paradies, 2013).
Police Discretion
Historically, police have played critical roles in Australia, even though they have done
a lot of negative deeds against the aboriginal people. Currently, law enforcement is the most
observable and influential agency in various forms of social control. While much of the
profession is adhering to the legitimacies of the job, police are supposed to use discretion
while dealing with the indigenous people (Dudgeon, et al., 2010).The use of discretion
depends on a range of factors such as tensions within police philosophies, routine practices
and lastly the overall culture of law enforcement officers. While discretionary powers can
have positive results, it can also be problematic once abused or use discriminately. (White,
Perrone, 2010).
A survey conducted in 2002 by The National Police Custody suggested that the
aboriginal people are 20 times more likely to be arrested than their non-indigenous
counterparts. West Australia recorded the highest ratio of over-representation followed by
South Australia (Lyneham, & Chan, 2013). Overall, the indigenous people make up about 27
% of all police arrest in the country. Moreover, it was reported that most of the incidents are
often related to public drunkenness (Purdy, 2012).However, the Royal Command responded
to this information by arguing that there lacked enough knowledge surrounding the deaths of
Indigenous people in custody and as a result, a 99 death were examined with more than 70%
occurring in police custody. These findings suggest that the indigenous people were more
likely to die in police custody compared to the non-indigenous. Moreover, it was found that

POLICE DISCRETION 6
aboriginality plays a huge part in the custodial acquisition of the Indigenous people.
(Cunningham, & Paradies, 2013).This shows that the historical relationship between law
enforcement officers and the Aboriginal people have been rough. It also shows that police
discretion only work against the concerns of the Aboriginal and Torres Strait Islander people.
The Indigenous communities of Australia are people who have gone through multiple
racial segregation .The foundation of such discriminative perceptions is the idea that
“superior” communities view them as communities of low state (Prenzler, 2009). Recent
studies have confirmed that the Indigenous communities have been targeted by police
discretion irrespective of the type and magnitude of offence they have committed. Therefore,
regardless of the Suggestions given by the Royal Commission of 1990, new rules of
accountability by law enforcement officials have not been enforced (Heffernan, Andersen, &
Kinner, 2009).
Mulrunji was an aboriginal Australian who was 36 years old at the time of his demise.
His demise occurred an hour after he was detained and accused of instigating public
disturbance .The suspect was locked up in the back side of Palm Island Police station. The
arresting officers were Senior Sergeant Chris Hurley and his liaison, Lloyd Bengaroo (Dale,
& Krawitz, 2011).
During a family interview, members and friends recounted the events that led to the
demise of Mr. Mulrunji. Earlier that day, he had visited his young niece. During the stopover,
he took some beer but didn’t get drunk and a bucket of crabs which he intended to sell. He
then walked to his sister’s and mother’s house at Dee Street where he was arrested by the
police. As he was walking, he was singing the song “who let the dogs out,” when the police
went past him. Previously that day, Sergeant Chris Hurley, a white Australian was probing
claims of assault by Gladys Nugget who was allegedly beaten by Roy Bramwell.

POLICE DISCRETION 7
Gladys asked the police officers to escort her in the quest for her safety as she
retrieved her medication from Bramwell’s house. At this time, Mr. Mulrunji teased the police
Liaison which later led to his arrest for public disturbance. The arrest of Mr. Mulrunji was
based on the nuisance he was causing in public as a result of what he saw happen to a fellow
aboriginal .Therefore, Senior Sergeant Hurley’s decision to intervene and arrest Mulrunji was
not appropriate since he had only caused a small nuisance. His unrest was a response to
seeing a fellow Indigenous being arrested and the police Liaison taking part in it. Mulrunji’s
detention was understandably unfair because of the injuries that he got in the incident. This is
a clear working example of how inconsequential issues can result in serious consequences
that eventually would lead to the death of a victim in custody.
Mulrunji’s Family spokesman, Brad Foster, stated that 15 minutes had already passed
before the victim went through the usual check. The check is usually conducted once an
individual arrives at the police station before being taken to the cells. One of the police
officers at the station noticed that Mr. Mulrunji was cold to the touch and had a strange skin
color 40 minutes after being placed in the cells. Moreover, the officer was not able to find a
heartbeat. Senior Sergeant Chris Hurley quickly went to the cells after he was notified about
the victim’s situation. Later, an ambulance was called and arrived within 15 minutes.
However, the paramedics never tried to resuscitate the inmate and as a result, he died.
Public Drunkenness
Even though the offences of public drunkenness have been abolished in most
countries, there is a higher likelihood for the indigenous people being arrested by police due
to public intoxication. In 2003, 80% of all people arrested for intoxication in Western
Australia were Indigenous people (Razack, 2013). Currently, the laws have been amended
and now police are able to arrest people without a previous arrest in five out of eight states.

POLICE DISCRETION 8
Any form of favouritism applied in police discretion should be based on facts and the
magnitude of the offence and not the offender’s race. If the police apprehend white
Australian, the often get a completely different treatment from what the Aboriginal and
Torres Strait Islander people receive (Razack, 2015).Most certainly there won’t be any form
of excessive force being applied by the police. The excessive force that was used in Mr.
Mulrunji’s case was due to the fact that he was an aboriginal Australian. Law enforcement
officers are supposed to uphold the rule of law. They should always exercise fairness to all
people regardless of their races.
It is evident that police in Mr. Mulrunji’s cases took a long time before conducting the
standard procedures before locking him in the cell. This form of neglect was based on the
victim’s race .The unfair treatment associated with being an Aboriginal or a Torres Strait
Islander has been experienced through the 203 reported cases of aboriginals dying in custody
(Lum 2011).The Aboriginal and Torres Strait Islander people have experienced the negative
attributes attached to them by the police , and this has, in turn, caused a sour relationship
between them .Instead of seeking and implementing new strategies that would improve the
relation, there is still a long misunderstanding between the two warring factions(Purdy,2012).
Any form of favouritism applied in police discretion should be based on facts and the
magnitude of the offence and not the offender’s race. If the police apprehend white
Australian, such offenders get a completely different treatment from what the Aboriginal and
Torres Strait Islander people receive (Shwarten, 2010). Most certainly there won’t be any
form of excessive force being applied by the police. The excessive force that was used in Mr.
Mulrunji’s case was due to the fact that he was an aboriginal Australian. Law enforcement
officers are supposed to uphold the rule of law. They should always exercise fairness to all
people regardless of their races.

POLICE DISCRETION 9
A review was carried out in 2010 on the investigations conducted by the police
following the circumstance that led to the demise of Mr. Mulrunji, and it was found that the
investigations into the incident had very serious flaws. (CMC, 2010). These finding were
arrived at after the findings of the commission during the trial were found to be insufficient or
not capable of verifying anything before any disciplinary committee in warranting Sergeant
Hurley’s responsibility to Mr. Mulrunji’s demise .Such weak conclusions from the
investigating tribunal amplify the suggestion that police discretionary powers often work
against Indigenous people’s interest. However, the police are still the main body with the
responsibility of investigating deaths of offenders in custody (Lum, 2011)
Conclusion
The discretionary powers exercised by police in their daily activities is usually
complex to understand and also their interaction with the aboriginals adds to the strains that
are already placed upon the police .This paper has demonstrated that by recognizing the
historic connection between the police and Indigenous people it would be easy to understand
their contemporary problems. The use of law enforcement and police discretion towards
public drunkenness are some of the major areas that deserve significant discretionary
measures. The attitude of individual police officers and racial discrimination that is still
entrenched in police service further adds to the problem. The Doomadgee case clearly
demonstrates these issues and explains how police actions can be damaging to the interest of
both Aboriginal and Torres Strait Islander people. Racial discrimination of Aboriginal people
has caused a lot of bias to the extent that police officers are now using excessive force in
excursing their duties. Law enforcement officers should attend regular training during their
time of service in order to ensure they always adhere to good morals and ethical conducts
Disciplinary action against officials found guilty need to be implemented and effected. This
would ensure that those found guilty of prejudicing police discretion are punished. In

POLICE DISCRETION 10
addition, Aboriginal people ought to report any cases of bias so that they can be dealt with
immediately in an effort to mitigate the vice.

POLICE DISCRETION 11
References
Cao, L. (2014). Aboriginal people and confidence in the police. Canadian Journal of
Criminology and Criminal Justice, 56(5), 499-526.
Comack, E. (2012). Racialized policing: Aboriginal people's encounters with the police.
Fernwood Pub..
Crime and Misconduct Commission (CMC) (2010). CMC Review of the Queensland
Police Services Palm Island Review. Author
Cunningham, J., & Paradies, Y. C. (2013). Patterns and correlates of self-reported racial
discrimination among Australian Aboriginal and Torres Strait Islander adults,
2008–09: analysis of national survey data. International journal for equity in
health, 12(1), 47.
Dale, D. (Producer), & Krawitz, T. (Director). (2011). The Tall Man. [Motion Picture].
Australia: SBS Australia.
Dudgeon, P., Wright, M., Paradies, Y., Garvey, D., & Walker, I. (2010). The social,
cultural and historical context of Aboriginal and Torres Strait Islander
Australians. Working together: Aboriginal and Torres Strait Islander mental health
and wellbeing principles and practice, 25-42.
Fast, E., & Collin-Vézina, D. (2010). Historical Trauma, Race-based Trauma and
Resilience of Indigenous Peoples: A literature review. First Peoples Child &
Family Review, 5(1).
Heffernan, E., Andersen, K., & Kinner, S. (2009). The insidious problem inside: mental
health problems of Aboriginal and Torres Strait Islander People in
custody. Australasian Psychiatry, 17(sup1), S41-S46.

POLICE DISCRETION 12
Hollinsworth, D. (2010). Racism and Indigenous people in Australia. Global Dialogue
(Online), 12(2), 1.
Lum C. (2011). The Influence of Places on Police Discretion Pathways: From Call for
Service to Arrest. Justice Quarterly. 28:4 631 665.
Lyneham, M., & Chan, A. (2013). Deaths in custody in Australia to 30 June
2011. Australia: ACT: Australian Institute of Criminology.
Prenzler, T. (2009). Ethics and accountability and decisions in criminal justice.
Queensland, QLD: Australian Academic Press.
Policing, R. (2012). Aboriginal People’s Encounters with the Police. Winnipeg:
Fernwood.
Purdy, E. (2012). The critical events of the mulrunji case on palm island. Retrieved from
http://treatyrepublic.net/content/critical-events-mulrunji-case-palm-island
Razack, S. H. (2013). Timely deaths: Medicalizing the deaths of Aboriginal people in
police custody. Law, Culture and the Humanities, 9(2), 352-374.
Razack, S. (2015). Dying from improvement: Inquests and inquiries into Indigenous
deaths in custody. University of Toronto Press.
Shane, J. M. (2010). Performance management in police agencies: a conceptual
framework. Policing: An International Journal of Police Strategies &
Management, 33(1), 6-29.
Stumpf, J. P. (2015). D (e) volving Discretion: Lessons from the Life and Times of Secure
Communities. Immigr. & Nat'lity L. Rev., 36, 203.

POLICE DISCRETION 13
Shwarten E. (2010). Police colluded to protect Senior Sargeant Chris Hurley over death
in custody of Cameron Doomadgee Coroner. Herald Sun.
White, R., & Perrone, S. (2010). Crime, criminality and criminal justice. South
Melbourne: Oxford University Press.