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The Forum > Article Comments > The common good trumping individual rights > Comments

The common good trumping individual rights : Comments

By Mirko Bagaric, published 6/2/2007

Lessons to learn from Chris Hurley and Rodney King - accountability and pragmatism often sharpen one’s moral focus.

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Interesting piece and well argued. Question though - to whom is the Qld DPP accountable? Clearly, it is not ideal to have an eminent jurist called in to review every case that creates a public hue and cry as we would end up with a weekly law and order auction. However, in cases such as this, where a man is dead and coronial and DPP views appear to differ so widely, what other means is there to ensure justice is done?

Also - is the Qld police union REALLY so upset about the PROCESS by which Hurley has been charged? Or is it that he has been charged at all? There seems to be a significant element that is of the view that police officers should be above the law that they enforce
Posted by stickman, Tuesday, 6 February 2007 9:22:12 AM
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The DPP's decision was a dreadful decision but it should not have been overturned.

Beattie has set an awful precedent. The prospects of trial by media, U.S.-style justice, are rising and rising in Australia.

It is something we should try to stop.
Posted by The Skeptic, Tuesday, 6 February 2007 9:26:12 AM
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I think your argument is sound and sets a logical process for the greater good. However your comment about the Aboriginal people being able to "scream" loud enough demonstrates that perhaps you are writing about Aboriginal people without any first hand or family knowledge. If the Government chose not to pursue charges against Hurley the fallout would not be felt by most Australians. However the fallout would mean that Aboriginal people would continue to turn on each other as demonstrated by the violence and self harm that exists in these communities. If Hurley was not charged this would have escalated, and then mainstream views would say "that's how they are". I find it is a common approach to downsize Aboriginal concerns in the bigger picture. Aboriginal people commonly hear "No no you've got it wrong. We didn't mean that"
Posted by Darwinboy, Tuesday, 6 February 2007 9:45:18 AM
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A good article, a very difficult case. Too complicated for me to begin to fathom. The system is often not satisfactory for the police. There do need to be more trained liasson officers to mediate any misunderstandings. It should have never got to this in the first place.
Posted by saintfletcher, Tuesday, 6 February 2007 12:12:40 PM
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Well what else you would expect from a member of the congregation of the legal fraternity!

Mirko speaks of protecting the sanctity of a system (for the sake of legal tradition) because for him this is far more important than the death of a fellow human being.

I can hear Mirko arguing ‘Its just another black death in custody, business as usual’

He also speaks of political pressure by Indigenous protest.

Why does Mirko find it deplorable that Indigenous dissent questioned the findings of legal bureaucrats? Are they protected specie in our apparently democratic society?

He forgets (or is unaware) of the hundreds of marches in the streets protesting this same issue over the past 2 decades.

It is one thing to advocate fidelity and blind faith to a system of law, quite another when it becomes clear this same system has repetitively failed to protect the most vulnerable within its ambit.
Posted by Rainier, Tuesday, 6 February 2007 12:43:03 PM
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The utilitarian view of things is alive and well in Australia, I think more so than in any other Anglo country we tend to rely more on the greater good argument.

Who determines what is the greater good ? Can that be separated from the self interest of those making the decisions ? Somehow I doubt it.

I also wonder whether we can know the greater good , for example, if someone assasinated Hitler in 1939 would that have been for the greater good ?

As Spock said "Sometimes the needs of the one outweighs the needs of the many". He was a Vulcan, you know..
Posted by westernred, Tuesday, 6 February 2007 1:12:23 PM
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Saint,

There was a liaison officer.

If you look at news reports regarding the findings of coroner Christine Clements it states that she dismissed all evidence from police liaison officer Bangaroo and that Bangaroo was with Senior Sgt Hurley when he arrested Mulrunji. The coroner apparently didn't believe his evidence preferring that of the guy in the lockup with Mulrunji but there is no dispute that Bangaroo was there.

Police are calling for cameras in the lockup. That might have been more helpful in this case. This was recommended by the deaths in custody enquiry but Beatty didn't spend the money.

Clearly if there had been cameras in the cell it would be known who caused the fatal injuries and what happened.

The cell mate committed suicide just after it was announced that Street was investigating.
Posted by mjpb, Tuesday, 6 February 2007 1:26:16 PM
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mjpb your cycnicism is palpable. Did the man committ suicide because he was complicit or because he did nothing to stop Hurley. Either way he was in a unenviable position.
Posted by Darwinboy, Tuesday, 6 February 2007 2:15:52 PM
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It is not possible to fight evil with evil, darkness with darkness.
It is not right to persecute one person for the "common good" - even in order to save others.

That said, while human rights are sacred, "human rights" are not: the former is a reality while the later is just a concept, and while real human rights must be preserved under all circumstances, there is nothing wrong about breaking a concept, or throwing the law and procedures out the window for the sake of saving lives.

If Chris Hurley is indeed guilty, then it is only a case of breaking procedures and a concept ("due process"). Heaven help us if he is not!
Posted by Yuyutsu, Tuesday, 6 February 2007 2:18:33 PM
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The cell mate committed suicide just after it was announced that Street was investigating

these 2 words, suicide and Street ring alarm bells at 140 dbA given the huge cover up of Yeldham J case in 1995 Royal Commission by Wood J

Remember it was Street [and Gleeson after he retired] who Special Division informed re Yeldham wanking youg boys in Wynyard Station Toilets and both then suffered "Lawrence of Amnesia" memory loss, which was assisted by Special Branch getting zapped etc etc

But biggest assistance [to other pedophile judges "on Franca's List"] was the "suicide" of Yeldham

I don't think anybody at all believed otherwise than ASIO bumped him off given the ongoing circus with O'Keefe etc, demonising of Arena and promotion of Gleeson

So I had to smile when Street got this job, but another suicide of key witness - hey pull the other one
Posted by Divorce Doctor, Tuesday, 6 February 2007 2:19:03 PM
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Darwinboy,

He was in an unenviable position particularly if there is anything in the conspiracy to have him killed theory. Even if he was complicit, due to eg. a disagreement with the deceased, I would think that the poor man would probably have accused Hurley in desperation to avoid the wrath of the deceased's relatives. People on Palm Island have a volatile reputation.

If he was complicit he will never fess up.

Hurley is thus also in an unenviable position. If he is innocent he has a huge problem. Everyone assumes that if an indigenous Australian is beat up in a lock up and a white cop is accused he must be guilty. We all have a relevant stereotype. In any other circumstances you would think that the testimony of a liaison officer present would be compelling. However in these circumstances even a coroner wouldn't believe his story which indicated that Hurley didn't do the damage.

In the novel "To Kill A Mockingbird" a black man is accused of the rape of a white woman. Everyone in the old 'deep South' setting assumes that he must be guilty. It fits the stereotype. He turns out to be innocent. With Hurley we don't know whether he is innocent or guilty but we do know that real life doesn't always work out as nicely as novels.
Posted by mjpb, Tuesday, 6 February 2007 2:44:46 PM
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Another thought-provoking article from Mirko, but I must agree with western red. The "common good" is even more abstract that the concept of "individual rights", and is almost invariably invoked as a rationalisation for inflicting harm or injustice - as Mirko argues occurred, and should have occurred, in this case.

People who demand that individuals’ rights are sacrificed to the “common good” are usually a) not the ones whose rights are sacrificed and b) claiming the right to determine what is and is not for the common good. This is not a sufficient condition for tyranny, but is a necessary one. The program of the Nazi party argued that: “The activities of the individual must not be allowed to clash with the interests of the community, but must take place within its confines and be for the good of all.”

The case of individuals who choose to sacrifice their own rights and interests for the common good is entirely another matter, and such people rightly earn and get our praise and admiration. But beware anyone who wants to do harm for the greater good.
Posted by Rhian, Tuesday, 6 February 2007 2:54:03 PM
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Mirko,
I see by your blurb that you are "a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy.

So explain to me the morals of law and political philosophy that has seen Chris Hurley being cited as the first person to be charged for a death in custody.

Australia, in case you were not aware, has had a violent and bloody history. The law that you hold so sacred has not done a real good job protecting Indigenous Australians - in the past or present.

Why shouldn't the DPP's decision be questioned, particularly when the coroners report differed so greatly.

You also forgot to mention that it has been demonstrated taht the DPP is not infallible, being a mere mortal, and her decisions should not be irrefutable.

The police on the other hand seem to be playing a very unholy campaign to get what they want.

From what I can understand, the police union are demanding the right to impunity for their actions.

It appears to me that they want to continue to be immune from questions over suspicious black deaths in custody.

Where are the morals of a police force trying to blackmail the government.

I suggest that the common good is served when a person, regardless of their role in society, is held legally liable for their actions.

Mirko, Sorry for getting upset with you. The penny finally dropped and now I get it... you talk about morals and political philosophy, like in critical analysis. You don't necessarily have to have to practice any morals just be able to write and talk about them.
Posted by Aka, Tuesday, 6 February 2007 6:18:48 PM
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Strange that Mirko seems to lack confidence in the Queensland judicial system's capacity to treat Hurley fairly in the process of a criminal trial. I suppose it would be facile to point out that the cops and lawyers have vested interests in this case, and perhaps a little obvious to suggest that this might be linked to the abominable history of Indigenous oppression by the enforcement and judicial arms of government in Queensland.

If a coroner had found evidence that Hurley had caused the death of an Anglo-Australian drunk in a police cell in Brisbane, would we not expect that he should face prosecution for that?

And Mirko - it certainly wasn't just the Indigenous community screaming about the apparent injustice in the decisions by the DPP to not charge Hurley but to pursue participants in the riot that ensued when Mulrunji's community learned the manner of his demise. There were just as many non-Indigenous Australians like me who participated in the outcry. Which is probably why Beattie did the backflip, now that I think of it - his government has not been particularly distinguished in its attention to Indigenous issues per se.

I think you obfuscate some of the central issues of this case by your appeal to a false dichotomy beteween the 'common good' vs 'individual rights'. Surely both imperatives are served well when apparent injustice is seen to be addressed by the State, whether or not it is prompted by bureaucratic decision or social action.

Mirko's is an interesting take in this case, but ultimately it seems to me to be a legalistic navel-gazing exercise.
Posted by CJ Morgan, Tuesday, 6 February 2007 8:57:35 PM
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A lawyer speaking of morality is as laughable as a politician speaking of values. Only a lawyer could believe in levels of morality. The common good is about individuals; The point the snarling majority have to keep in mind is: if they can single him out, why not me?
Of course, it helps if there are other factors, such as: "I'm not a blackfella, so it couldn't happen to me", or "I'm a policeman -or lawyer- so the law will always be on my side".
If an individual can't feel safe before the law, what will a whole community of individuals feel?
Posted by Grim, Tuesday, 6 February 2007 9:43:01 PM
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"A moral code which elevates individual rights and worships abstract notions above the common good is bankrupt and has no scope for application beyond the realms of fiction, where important rights never clash."

At what point does this stop?
If that logic is valid in a decision to charge an individual then should it not also play a role in a decision regarding the conduct of a trial and the outcome?

When views such as the one quoted above begin to become acceptable we are on the path to tyrany. There is a balance between society and the individual, individual rights without responsibility bring one kind of chaos, trampling the individuals rights in the name of the common good (whatever that may be) leads to another.

R0bert
Posted by R0bert, Tuesday, 6 February 2007 11:53:34 PM
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If I remember right there were video cameras at the Police station, yet they were turned off just before they entered and turned back on after the human being was deceased.

We also had the farcical investigation of Police by Police who knew each other and had dinner with each other.

The person was told to move on when he berated a person of his own racial group to which he complied and was arrested for no more than being drunk.

The recent FOI request which got hold of the results of the trial in the Bayside area of Brisbane where Police were to record any interaction that took place showed that a lot of Police refused to do so, and one would have to wonder why seeing how it would protect them if somebody made a unjustified complaint?

So the Police unions claims seem to be very hollow when one looks at the facts.

The fact is that a 2 year coroners investigation and a Judge have found there is sufficient evidence to lay charges and yet the DPP, CMC and the Police union seem to think that the basis of charges a normal person would have to face should not apply purely because the individual is a Police Officer, sorry but to me if there is a sufficient basis for charges to be laid no matter who the person is the normal processes of the law should take place.

To me It would appear that a deal was worked out before the DPP announced it's decision and now they are dirty that the deal was not followed.

After all we are told by Govt and Police that the judicial system works well so if the Police Officer is innocent what does he have to be afraid of from facing the system like everybody else would have to do.

And the witness who committed suicide had been taken on a drive by Police just before he committed suicide, what a coincidence.

Sorry but to me this matter has had a stench about it from day one.
Posted by Darwin, Wednesday, 7 February 2007 12:40:39 AM
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Well said Darwin,

I would add:

Since 2004 and even in the coroner’s reports it was assumed the deceased was 'drunk'. There seems to conflicting interpretations of what this means.

Indeed it was stated that Mulrunji then said things like “I’m not drunk” “I’ve done nothing wrong” and “why are you arresting me?”

Its seem that thre is a line between being "drunk" and being "drunk and disorderly" is a subjective call that police make all the time.

ie,

• Drunk: If you're white and have an Aussie flag draped over you (superman style) and sucking on can of beer.

• Drunk and disorderly: If you’re Aboriginal and walking down the street (empty handed) having just consumed 1 can of beer.
Posted by Rainier, Wednesday, 7 February 2007 8:57:13 AM
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There were two people responsible for reviewing the case to determine if charges should be laid; Coroner and then DPP. Their opinions varied wildly. A third party was called in to review the evidence impartially.

This article seems to assume that Sir Laurence Street didn't conduct a proper de novo review.

While it is irregular for him to have been called upon, did that decision actually reduce the chance of justice being served? That's the question on everyone's lips.

I'd like to see more attention paid to the issue of the Police Union running a campaign against the government. I can see far more problems arising from that breech than an independant review of a single DPP decision.
Posted by glen v, Wednesday, 7 February 2007 11:06:47 AM
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Mirko argues a strong case but he overlooks the cause of the problem. The initial police investigation that failled miserably to ensure the law was upheld , by the police, without fear or favour. Had that investigation been carried outwith even a smidgeon of Police 'mateship' then the case Mirko argues wouldn't have eventuated. Hurley should have been charged at that time.

Oh and I've seen quite a few people from other communities, not just indigenous communities, express their disquiet in various ways over many aspects involved in this fiasco, too.
Posted by keith, Wednesday, 7 February 2007 1:44:05 PM
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Darwinboy,

If the video camera thing were true it would be on the front page of the Courier Mail. Where did you hear that? Also, the deceased was not known for being violent or a troublemaker. The witness was there because he had just bashed three women.

The ‘Judge’ was hired by Beattie to find grounds to lay charges after the DPP decided not to proceed. He was not functioning as an independent judge in court. If the DPP decided there was insufficient evidence a normal person would not be charged. That is not the normal process of law. Hurley is only being charged because of Beattie’s actions.

What would the police give DPP in return in the deal?

“like everybody else would have to do.”
If the DPP decided not to charge anyone else with manslaughter there would have been no ex-judge hired to make an argument to the contrary. He is a tall rugged white police officer who arrested an aborigine who died so he must be guilty.

If the police drove around the witness before his death you should notify the Murri newspapers.

”Sorry but to me this matter has had a stench about it from day one.”
That is no excuse. How would you feel if you were in Hurley’s position and people spread rumours about you just because of their feeling from day one?

CJ,

What were the rioters charged with? Were the DPP involved?

Glen v

The coroner was independent. The DPP are independent. But we know who paid Lawrence Street and what his boss wanted. He would have become a judge due to his ability to argue displayed while a barrister. To suggest he was not independent is a fact not an insult. While he wasn’t independent he may or may not have been objective. However he is essentially a lawyer and lawyers are in the habit of arguing a case not being objective so I take a view.

Keith,

I partly disagree. The police should have investigated properly. Whether or not that would lead to a charge is not so certain.
Posted by mjpb, Wednesday, 7 February 2007 3:00:15 PM
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All of this completely pointless stupidity could have been avoided if Australia had simply adopted the German system.

Their Department of Public Prosecution does not have discretion to choose whether they prosecute or not. They don't try to pre-judge the outcome of the trial and whether or not they should attempt it (effectively, a trial behind closed doors before the real trial) they simply have to forge ahead.

Actually, the German system is infinitely better than ours in a multitude of ways, not the least of which is the reduced opportunity for lawyers to grab exorbitant fees.
Posted by TurnRightThenLeft, Wednesday, 7 February 2007 3:20:00 PM
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mjpb

You appear to have me confused with Darwin so your comments don't apply to my post.

In response to your post. Are you saying the media is the forum where truth is determined and revealed?

With regard to the witness. If he had committed a criminal act then it was correct to detain him to start the due process. But do his crimes make the substance of the allegations against Hurley (that he allegedly caused the Aboriginal mans death) acceptable? This seems to be a circular argument.

My understanding is that the "Judge" was commissioned to determine whether or not there was a basis for laying charges, as the previous two inquiries went either way. You are entitled to your opinion that the Premier commissioned the "Judge" to "find" a basis for charges.

I could go on and respond to your questions with more of my own. However I feel the tone or your posts suggets (IMO) that you feel Aboriginal people are "un-normal".
Posted by Darwinboy, Wednesday, 7 February 2007 3:20:42 PM
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Darwinboy,

"You appear to have me confused with Darwin so your comments don't apply to my post."

Sorry it is the first time I have seen either of you.

"In response to your post. Are you saying the media is the forum where truth is determined and revealed?"

Not at all but some people make that mistake. The media always say that they are not there to educate.

"You are entitled to your opinion that the Premier commissioned the "Judge" to "find" a basis for charges."

Thank you it is based on my perception of: hiring people, what the premier wanted, and lawyers. You realize that I don't think the Premier sat down and said "I want you to argue that he should be charged". I just take into account who hired Street, Street being intelligent enough to know why, and the way lawyers approach things.

"However I feel the tone or your posts suggets (IMO) that you feel Aboriginal people are "un-normal"."

No. I'd like to know why? Are you saying that Aboriginal people get charged due to the premier hiring an interstate ex-judge after the DPP decides not to charge them? Perhaps something else I said? I can see why you could read in that I am saying Hurley is un-normal but not anyone else. Naturally I just meant Hurley was treated differently not that he is abnormal.
Posted by mjpb, Wednesday, 7 February 2007 3:57:57 PM
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I have an interesting common good angle.

When talking common good you must remember that there is the common good of the public servants (aka Government) and the common good of the people.

We are not all equal. Both sides need to be argued.

Police could just as easily believe that it is in the common good to support their fellow policeman, regardless whether they are guilty or not, as if one is found guilty it will impact on the reputation of all good cops.
Posted by Jolanda, Wednesday, 7 February 2007 6:20:58 PM
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Currently, Queensland Police Union and numerous Queensland Police officers, vigorously protesting against decision of Queensland Attorney-General to charge policeman Chris Hurley with manslaughter of Mulrunji Doomadgee, the Australian Aboriginal, actually, attempt to threaten the democratically elected Queensland Government and achieve an uncontrollable and self-ruling status. They, in fact, demand immunity from any form of public, political and judicial control. This situation seems to be socially and politically dangerous and requires urgent and adequate response in the interest of Queensland democracy and people.
I am sure there are many honest and professionally responsible Queensland Police officers, who understand that Chris Hurley's case has nothing to do with industrial relations and “political interference”. It is Queensland Police Union (QPU), which attempts to interfere in legal judicial proceedings and operate outside its responsibilities. I believe honest and professionally responsible Queensland Police officers appreciate that QPU vice-president Mr. Fitzpatrick acts irresponsibly and provocatively, actually, discrediting Queensland Police. Current situation indicates that professional quality of Queensland Police is questionable and raises doubts about its public reliability. Minister for Police Judy Spence and Police Commissioner Bob Atkinson are personally responsible for this situation. I am calling on them to resign.
Police and prosecution cannot be uncontrolled in democratic society, and Queensland Government acts lawfully via Attorney-General. I invite anyone, including the Author of the discussed article, spreading opposite opinion to provide exact references to appropriate legal acts in support of their view.
Finally, I would like to stress that current situation with Queensland Police and Prosecution suggests that it is vital for democracy to strengthen political and public control over police and prosecution and to initiate a new Parliamentary investigation into Queensland Police and Prosecution functioning - successor to the Fitzgerald Commission called to sweep out Queensland justice system corruption 20 years ago.
Posted by Andreas Berg, Thursday, 8 February 2007 9:19:32 AM
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common good of whom? what about the individual rights of the man who's life was taken? there was clearly no real need for him to have been arrested in the first place, other than the fact that some power tripper wanted to prove their authority.

with regard to the evidence disregarded from the liaison officer, the coroner chose to do so due to its unreliability based on differing accounts by him of what occurred on that fateful night.

mjpb, perhaps you ought to read the coroners findings, in it you'll find the references to that video camera as posted by darwinboy.

the uproar by the police union and indeed the author of this piece clearly demonstrates that the 'common good' is about denying the rights of aboriginal people as individuals in order to uphold their status as less than worthy australians. the common good would allow for police buddies to investigate each other, to breach their own standards and to limit aboriginal peoples rights to justice.

as for the witness who's now also deceased - my family on palm island tells me that there was quite a bit of police harrassment on the island after this episode - it's called scare tactics.
Posted by kalalli, Thursday, 8 February 2007 10:56:00 AM
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Mirko,
Where are you in all of this discussion.

You make statements, assume some knowledge on morals, and then lurk in the background.

What was your purpose in writing this piece, to stir the pot for your academic ego?

Your adopted country's original peoples have a right to live in safety.

Having more than a passing understanding of law, you would be aware of the sigificant amount of Indigenous deaths in custody. How many are suspicious?

What exactly is your moral standing on this?

What are the morals being reflected if Australia, and particularly
Queensland continue to turn a blind eye to the police force possibly being implicated in the deaths of Indigenous Australians in their custody?

How about you spell it out.

How could anyone think that the police should be immune to prosecution in these circumstances?

What would be the moral implications if police were given such immunity?

What are the morals attached to causing another person's death - either through negligence or through a deliberate act?

I hope that Australia is mature enough and moral enough to ensure that the past practices of genocide against Aboriginal and Torres Strait Isander peoples stays in the past.
Posted by Aka, Thursday, 8 February 2007 5:57:38 PM
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Hello Aka

Having seen some of the stupidity that has been spouted in support of Hurley...I am truely fearful we all haven't left the past behind.
Posted by keith, Friday, 9 February 2007 1:16:21 PM
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Did anyone else see the program of Musolini's Fascist state on ABC last night.

It showed how people in positions of power can endorse the use of force and violence, thereby creating what the presenter refered to as a 'police state' - a fascist state.

I believe that the police are way out of line in pushing the political barrow.

After all they are public servants, for goodness sake.

The police union should be forced to look at what they are doing. If they continue to politicise a law and order issue perhaps some of them are in the wrong job.

If they think their ideas are solid enough then they should nominate for election into the government.

What do you think Mirko?

You should know something about the morals of a police force making such demands of a political nature.

Tell me about your thoughts on Fascism. Is there any similarity between the Qld police union demanding that their member should not be facing charges over the death of Mulrunji and Musulini's rise to power?
Posted by Aka, Friday, 9 February 2007 2:24:48 PM
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It isn’t about immunity from prosecution. It is about different treatment of someone in the criminal justice system. If the DPP determines that a matter shouldn’t proceed that is normally the end of it and the potential accused can get on with their life.

“... coroners investigation and a Judge have found there is sufficient evidence to lay charges and yet the DPP, CMC and the Police union ...”

“There were two people responsible for reviewing the case to determine if charges should be laid; Coroner and then DPP. Their opinions varied wildly. A third party was called in ...”

Coroners (or Acting Coroners as in this case) don't determine if charges should be laid. That is the role of the DPP for these types of matters. At most a Coroner can refer a matter to the DPP.

Kalali

“mjpb, perhaps you ought to read the (Acting) coroners findings, in it you'll find the references to that video camera as posted by darwinboy.”

Good idea. I did so and it probably gave me a much more detailed and accurate understanding of the incident. I say “probably” because coroners aren’t bound by the same rules of evidence that courts are. The purpose of the rules is to ensure fairness and accuracy.

That said, Darwin said that cameras were turned off just before they entered and turned back on after the human being was deceased. That is incorrect. I think that type of thing happened at Logan Brisbane. I don’t believe anyone died however. Rumour alone connects it to this matter.

You make a lot of good points but they don’t apply to the issue that has become controversial. Mirko has a better understanding of the legal issue. I refer you to my first paragraph not specifically addressed to you.

I also note your comment "negligent or deliberate". Are you referring to the delay in medical treatment and nudging the deceased with the foot to check if he was okay something criticized as a hopelessly inadequate way of managing someone even if he was just intoxicated (blood alcohol concentration of 0.292)?
Posted by mjpb, Friday, 9 February 2007 2:32:01 PM
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I think the police are more worried about Hurley being charged and I can understand why. The point however is that we need to know if Hurley is guilty and if so he should be punished. Group and community pressure to know what happened and or demand further review is not new. History is full of examples where people power has won out. The Goverment has to listen and act.
Posted by bruda, Sunday, 11 February 2007 6:47:12 PM
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Mjpb,

While considering his field of study one might assume that “Mirko has a better understanding of the legal issue”.

However I don’t think he quite understands the moral associated with social justice.

Mirko appears so busy pumping out his ‘writing’ and trying to appear somewhat an expert on law and morals etc but he seems to be incapable of understanding the basics of human rights.

You also state that “it isn’t about immunity from prosecution. It is about different treatment of someone in the criminal justice system. If the DPP determines that a matter shouldn’t proceed that is normally the end of it and the potential accused can get on with their life.”

It is precisely because Hurley is a police officer that this case should be treated differently.

Can’t you understand that the police have a fair amount of power in the community. They are supposed to uphold the law, and protect people.

You cannot go past the fact that Hurley is a police officer, and therefore in a privileged position of trust and power in the community.

The police union seem to be wanting to forget, or gloss over the fact that a man is dead. Mulrunji died in custody from severe injuries.

The police union sickens me. They whinge about Hurley being charged but Mulrunji's death is glossed over.

Mirko might be expected to know the law, but I and many other posters know right from wrong.
Posted by Aka, Monday, 12 February 2007 8:27:00 AM
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Aka,

Re: different treatment

Mulrunji's tragic death demands that action be taken to prevent reoccurance. However the saying “two wrongs don’t make a right” applies. Mulrunji had the right to be properly looked after and not left to die in a jail cell. Police routinely deal with heavily intoxicated people or people with injuries yet in this situation Mulrunji was left sufficiently unmonitored to die unnoticed and noone had the skills, or the medical or safety equipment to implement an attempt at resuscitation. This reflects on adequate staffing, training, and equipment. Further, Mulrunji’s family should have been told immediately when he was known to be deceased. However unless the appropriate authority considers that there is evidence that Hurley is criminally responsible for the death he and his family shouldn’t have to go through a trial for a very serious criminal matter.

Finally in this regard I note that I believe that the Acting Coroner got it right when she described it as “reprehensible” that so many years after the Royal Commission into similar deaths the relevant recommendations were still ignored.

”The police union sickens me. They whinge about Hurley being charged but Mulrunji's death is glossed over.”

I agree. In fairness at the time of the QPU actions the charge was the most obvious issue and that was the thing to respond to. However that is no excuse. They should have made a loud fuss a long time ago about the other issues. Mulrunji’s death pointed to major problems that need addressing.

”Mirko might be expected to know the law, but I and many other posters know right from wrong.”

Sometimes arguments in the forum have been about the legal process and inferences about right and wrong have been drawn from the incorrect understanding. A lynch mob situation based on knowing right from wrong but basing the call on rumour and misunderstandings is not good and will not resolve the problems. I was using Mirko to focus on the correct understanding of the legal situation. Given your view on his ideas about social justice perhaps it wasn’t the best example.
Posted by mjpb, Monday, 12 February 2007 10:58:02 AM
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I do not know what happened. Nor do any of us here. A man is dead. THere is a weeping family and a heartbroken community. Nevertheless, we have rules and a process of law for a reason, and the appropriate authority in this case found there was insufficient evidence to warrant a prosecution. As was said earlier two wrongs don't make a right.

We are currently allegedly fighting a war in Iraq against terrorism and for the rule of law. Yet in this case we have allowed rioting, ransacking and threats of violence and protest to force a government motivated by political expediency to abrogate its responsibility to uphold a just legal framework. Because of this, and the medias predjudicial influence, Mr. Hurley will not get a fair trial. Sure, there is a good chance Mr. Hurley killed Cameron Doomadgee. But as the DPP concluded, there is not enough evidence to prove it. And you cannot just arrest people without evidence. (Interestingly enough, watertight cases could easily have been made against the arsonists who destroyed the police station and courthouse, but weren't, again for political reasons).
Posted by john3.30, Tuesday, 13 February 2007 5:15:03 AM
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Mirko is still missing in action I see.

It is a pity he can not explain the morals associated with his logic.

INteresting show on ABC last night re the Victorian Police Union.

Bully boy tactics appear normal police union culture in Vic.

I wonder how widespread it is.

Moral coment Mirko?
Posted by Aka, Tuesday, 13 February 2007 10:40:01 AM
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John,

As regards the rioting I hope this doesn't sound too pedantic but ... I don't believe that the government was forced at all. I suspect it was a cool calm decision on the anticipation of political gain. The Courier Mail were obviously going to fully support it.

As regards the rioters you can understand that they are regular people who think that a big (solidly built 200.66cm) white cop killed one of their own. Chances are, as in any of these situations, there are people seeking power who manipulate them with false information. Understandably they are outraged rather than considering legal sophistication however crucial.

"Because of this, and the media's prejudicial influence, Mr. Hurley will not get a fair trial."

You can say that again! Not on planet earth.

Nevertheless I can't help think that a jury who are reasonably honest with themselves will have enough life experience and common sense to form conclusions that will be more favourable to Hurley than certain members of the judiciary have. Some assumptions they made seem a little extravagant when compared to real life experience. There was a time when I thought the sophistication of judges would make them better equipped to judge guilt and innocence. Now I take the view that their typically priveleged background makes them incapable of seeing from their "ivory tower" the obvious due to lack of experience. I am grateful we have a jury system for serious criminal matters.

"Sure, there is a good chance Mr. Hurley killed Cameron Doomadgee."

I disagree. If you mean beat Mulrunji up so severely that he died as a result then personally I think it is extremely unlikely based on the medical evidence, and the testimony of the late key witness which combine to contradict that view, and the surrounding circumstances which afford other possibilities. In a less criminal way it may be another story. I believe that some things he may have done and failed to do were less than ideal.
Posted by mjpb, Tuesday, 13 February 2007 11:12:44 AM
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mjpb the info on the video surveillance system being turned off was reported shortly after the incident occurred if I recall correctly, and I believe the coroner's report mentions it as well.

The Judge was hired due to the fact that the DPP and the Coroner had different views, and the judge found the DPP was wrong (aren't POLICE PROSECUTORS staff members of the DPP and work for the DPP and usually POLICE?), and the coroner was right, and despite the whitewash that the Govt and Police seemed to want to continue with, the Govt woke up the vast majority of the Public did not buy it.

When a Coroner and a Judge (who would have a far better knowledge of the law etc than a bureaucrat) come to the same conclusion which totally differs from the farcical decision of the DPP I believe we need to be asking serious questions.

Mr Fitzgerald found that the Police Brotherhood protected their own whether they were doing right or wrong, seems like not much has changed except the PR work to make the public think different.

Maybe you should do what I have done, which is look at all the available facts to date and make your own mind up purely based on the available facts, which is what I have done and that is why I said there has been a stench about this matter from day one, and there still is to a degree.

Sorry if the truth hurts but it is what it is!

Yes I have had to laugh at the adverts on the radio from the Qld Police Union, but at the same time I realize they are the ones running the show to a large degree not the Govt.

The 4 Corners report on the ABC a few nights ago is common with Police associations/Unions in most states and shows how things really are and who runs the show.

Threats, harassment and intimidation have been Police tactics for years and still are the norm.
Posted by Darwin, Thursday, 15 February 2007 10:47:15 PM
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Darwin,

You raise other issues and I don't want to prolong them because I believe that Hurley is having the emotion of a long history of misdeeds directed toward him and this is clouding judgement. In most of it I agree with you. But I just want to focus on Hurley's situation (and clarify the difference between DPP and QP).

Re:video Are you sure you aren't thinking of reports regarding Logan Brisbane? It definitely happened there. The acting coroner's report does not say anything about a video system being turned off and on as alleged in here.

"POLICE PROSECUTORS staff members of the DPP and work for the DPP and usually POLICE?"

Police (and other departments, eg. Dept of Primary Industry) have prosecutors. They are just police trained in prosecution. The DPP prosecutors are from a different department. Their department deals with particular prosecutions. For most lower court matters police prosecutors do the prosecution. DPP prosecutors are legal practitioners and they prosecute matters in higher courts (serious crimes).

"and the coroner was right"
As you know I disagree. I'm itching to go into more detail. I have real life experience of what she thinks is impossible. But Wilkinson from QPU got done for contempt for mouthing off about her for ignoring expert evidence so ...

An acting coroner made findings based on the loose approach to evidence that she was entitled to consider to ensure a full enquiry. The DPP was restricted to only looking at evidence that can be used in court. The former judge was hired by Beatty and was not acting in the capacity as judge. It is normally the DPP's call. That is how it works.

Media hype and available facts are two different things.
Posted by mjpb, Friday, 16 February 2007 12:28:42 PM
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Firstly I'll declare a personal interest!
I once appeared in a court where Justice Kirby resided. I was overwhelmed by his humanity in dealing with my case and so will be forever defensive of his integrity. To suggest that he would conduct any investigation with anything but honesty and rigor is indeed foolish.

Either the coroner or the DPP was wrong. The DPP is advised by police who are sworn to evidence of the particular case.

It is not the case that Hurley is being found guilty, just charged! due process is being followed and a court and a jury will determine what injuries were reasonable to a person drunk and arrested and when and how he died. "he fell" is no longer a defence.
While not having all the facts, I know where my money lies. A policeman must sometimes be brutal it's to be determined how brutal he's allowed to be.
I've been witness to how brutal it can get, note witnessed not subject to. I will be the first to applaud a not guilty result, forever I'm a pacifist and like all wish police to be the same.
fluff
Posted by fluff4, Saturday, 17 February 2007 7:40:49 AM
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fluff,
you declare a personal issue, but I suggest that all Australians have a personal interest in this issue for the police force has some considerable power over each person in this country.

Either the coroner or the DPP are wrong is stating the obvious.

You state that a 'policeman must sometimes be brutal and it's to be determined how brutal hes allowed to be'.

I think that the law is quite clear of the process to be followed if the police cause the fatality of a person, such as shooting them.

That is not the issue in this case. If this was an issue of 'sufficient force' being used then why the cover up.

If this were just an unfortunate accident as the DPP declared, why was there a big cover up. Mates investigating mates.

why do you state that you "will be the first to applaud a not guilty result". Are you a member of the police fraterninty?

You sound like you think it is ok for police to remain above the law.

If Hurley is found guilty, he can appeal etc and do whatever time he must. But poor Mulrunji has no life to enjoy - his life was cut short.

As a witness to police being brutal, how would your statement change if it were your son, brother, or father who got the treatment Mulrunji got.

This issue raises the ongoing concern that some people want justice to remain an illusion for Indigenous Australians.

The police union, as I have stated earlier, appear to be demanding that they are above the law and any of their propaganda I have seen/heard to date does nothing to sway my thoughts.

It appears that little has changed in the police culture since the Fitzgerald inquiry.

I would suggest that the police union members look carefully at where their union is taking them, for the stance they have taken does not appear to be a point of law.

From what I can understand, the police unions stance appears to be a demand for the right to kill, without challenge.

Scary
Posted by Aka, Sunday, 18 February 2007 9:00:30 AM
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"A policeman must sometimes be brutal it's to be determined how brutal he's allowed to be."

Do yourself a big favour, read the Coroner's report, http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf

Then read the reports from the Royal Commission in Deaths in Custody here http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/rciadic/

and come back and make a more informed comment.
Posted by Rainier, Sunday, 18 February 2007 10:56:50 AM
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fluff,

Kirby wasn't involved. Are you thinking of Street who's integrity I am not questioning? Legal people are like hired guns. What they shoot at doesn't reflect on their integrity.

"It is not the case that Hurley is being found guilty, just charged! due process is being followed..."

No due process wasn't followed. Someone will have their life disrupted for the next year going through a serious criminal trial because the Premier intervened in the normal process.

"A policeman must sometimes be brutal..."
I won't dignify that.

Aka,

"...all Australians have a personal interest..."
Hurley is not some sacrificial lamb for your hate of injustice. He is a human in the criminal law system either guilty or innocent.

"That is not the issue in this case. If this was an issue of 'sufficient force' being used then why the cover up."
You call it a cover up and mates obviously shouldn't investigate mates but don't jump to conclusions or underestimate people's stupidity.

"But poor Mulrunji has no life to enjoy - his life was cut short."
Unless you want to live in continual risk with lynch mob justice we need to assume Hurley is innocent unless there is proof that he is criminally responsible. What if Hurley had died for some reason and Mulrunji was falsely accused and DPP found no evidence but the normal process got sidestepped?

"This issue raises the ongoing concern that some people want justice to remain an illusion for Indigenous Australians."

Selective justice is the problem not the solution. If people don't uphold justice for all there will never be a guarantee of justice for any group.

"The police union, ... appear to be demanding that they are above the law ... does nothing to sway my thoughts."
Don't let the facts get in the way of a good story eh?

"From what I can understand, the police unions stance appears to be a demand for the right to kill, without challenge."
You don't understand that is the problem. They objected when due process was not followed for an Australian.
Posted by mjpb, Tuesday, 20 February 2007 9:08:46 AM
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mjpb: I remember the reports of the video being turned off before he was taken into the watchouse and turned back on later, I also remember the claims he was hit by a car in the 24 hours before he was arrested and that is how he got the injuries, and I also remember the other versions given to account for his serious injuries (like I said it has stunk from day one) and if there is no video of that time frame how can anybody comment on that time.

If it came to believing a representative from the Police union (what was the secret deal done recently with the Police Association and the Bracks Govt to make taxpayers foot the bill for legal costs for Police being charged with corruption in return for the Police backing the Bracks Govt for re-election, I think that says bucket loads in itself) or a highly trained and QUALIFIED Coroner who spent about 2 years of investigation on this matter to reach her conclusion, I would go with the coroner like everybody else has seemed to do.

Basically he is being treated like everybody else would be and Police do not like it!!
Sorry but the truth is just that, The truth!

Times are a changing and Police better get used to it!
Posted by Darwin, Wednesday, 21 February 2007 2:18:40 AM
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Darwin,

Re: Camera. You originally said:

“…turned off just before they entered and turned back on after the human being was deceased.”

That would look highly suspicious and you'd think it would be front page Courier Mail and in the acting coroner's report so I figured you were mistaken.

Where were the reports?

The way you are now saying it it could almost cover any normal situation where noone was in the cells so the cameras were naturally off (videotapes are not made of empty cells) then people were put in the cells and the camera turned on. That would hardly be scandalous or newsworthy.

“ if there is no video of that time frame how can anybody comment on that time.”

Witnesses. A few police and a few civilians were in the vicinity.

Nevertheless, the person who gave the damaging evidence (damaging if the conclusion is reached, as the acting coroner did, that he didn't see what he said he saw but must have been mistaken and really saw something else)(what he said he saw would have caused a black eye not a death) is deceased. Yet somehow there is evidence to convict.

Re: believing a representative of police union or coroner
The police union vs coroner was only with regard to conclusions. I have only heard sketchy reports of it but as far as I can figure it sounds like someone from the Police Union was upset because the coroner did not rely upon evidence in Hurley’s favour including that of a Professor who said that something was possible. The coroner decided that the something was impossible. That wasn’t in Hurley’s favour.

“Basically he is being treated like everybody else would be and Police do not like it!! Sorry but the truth is just that, The truth!”

The DPP make the call as to whether or not someone is charged with serious criminal offences. They made the decision not to charge Hurley. If he was being treated like anyone else it would end there. It did not end there.
Posted by mjpb, Wednesday, 21 February 2007 1:09:32 PM
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mjpb

I remember reports at the time stating that as i have already said.
There were other people in the cells at the time, and funnily enough one person in the cell at the time and was a key witness committed SUICIDE right after being taken for a drive by Police the night before the Judge arrived on the island, how convenient for Police.

And the coroner did not believe the Police evidence due to the changing story of the events, hit by a car explains his injuries etc.

As I said the highly trained coroner if by far more credible than a Police union rep who didn't like the fact that Police were held to be accountable like anybody else would have been under the same circumstances.

So why did the highly trained ex Judge who would have a far better grasp on the law find the total opposite of the DPP, then again the judge was acting totally independently and was not influenced by other matters unlike the DPP. Judge + Coroner vs DPP, 2 to 1 against = prosecution.

Sorry mjpb you can try to sugar coat this matter as much as you want but the truth will speak for itself and it is good to see that proper due process has at last been followed.

No comment about the dodgy deals between Police unions/associations and why Police are getting unlimited legal expenses paid by the taxpayer for their defense of corruption charges, gee I do not think normal people would have unlimited legal expenses at the beck and call if they were charged with a offense, it does appear that Police are treated differently doesn't it?

Times are a changing, Police better get used to the new changes that will be happening.
Posted by Darwin, Friday, 23 February 2007 12:47:20 AM
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Darwin,

I don't know where to go with this. I know what Rainier has posted. I know what I have posted. There does not seem much more to say. There is a difference between rumours and reports and the coroner said nothing about being hit by a car. If you can point me toward a publication and time period I am happy to accept your reports.

I haven't questioned the facts that the coroner put forward. Neither did the police union rep. It is what was done with those facts that has been contentious. The police officer wasn't treated the same as everyone else. Do you really think the Premier pays someone to second guess the DPP every time they don't proceed?

"So why did the highly trained ex Judge ...find the total opposite of the DPP?"

Because he is an ex-lawyer and that was his job.

"...the judge was acting totally independently"

We have very different concepts of independent.

"and was not influenced by other matters unlike the DPP."
What other matters?

"Judge + Coroner vs DPP, 2 to 1 against = prosecution."
The coroner doesn't make that type of decision and it would either be unfair to the defendant or limit the coroner inappropriately if things were changed so that they could. The DPP makes the call. Someone hired to second guess them got a different result. That is something different to what you are saying.

I don't know enough about the corruption issue you refer to to comment.
Posted by mjpb, Monday, 5 March 2007 10:10:25 AM
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So where is Mirko?
Posted by mjpb, Tuesday, 6 March 2007 11:27:52 AM
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Maybe you should ask the Police officer or his lawyer why the comments about being hit by a car to try to explain the severe injuries were said.

I think the Police union rep did question the results of the Coroner, and more. Obviously you are a Police officer mjpb going by your comments.

The highly skilled coroner, and a Judge who is highly trained in the law, and has dealt out justice for many years I would consider to be far greater qualified and far more believable than the Politically tainted DPP, who have Police working for them.

I am sure that numerous amounts of people have been before the courts (as court records actually prove) on evidence far far less than in this matter, and would you believe it was the very same DPP that found there was sufficient evidence in those matters concerning ordinary people to prosecute, and when they came before the court a number of those cases were thrown out for lack of any real evidence.

Your argument is not holding up is it mjpb?

Like I said, Times are a changing, Police better get used to the new changes that will be happening, and know they will be held accountable if they do the wrong thing.
Posted by Darwin, Sunday, 11 March 2007 1:13:12 AM
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"Maybe you should ask the Police officer or his lawyer why the comments about being hit by a car to try to explain the severe injuries were said."

Why? From what I have seen the comments weren't attributed to them.

"I think the Police union rep did question the results of the Coroner, and more."

I still think he was referring to the opinion of the coroner rather than the facts but I'll concede it is ambiguous.

"Obviously you are a Police officer mjpb going by your comments."

In what way is that obvious cf. me wanting to support justice?

I have the utmost confidence in the skill and ability of the Coroner within their sphere. However I believe this type of assessment takes something more than a Judge could normally provide. The DPP and Police are in separate departments.

"I am sure ..."

I'm open to the possibility of human error in general. However the fact that the CMC made the same decision albeit relating to a different tribunal of fact can assure you that that isn't one of those types of decisions. The care taken with this decision is also likely due to the obvious implications and the consultation with Judge Thomas prior to making the decision. All these things confirm the DPP made the right decision.

"...Times are a changing..."

They sure are! We are heading backward toward injustices and you just don't realize the implications. The police will probably generally benefit. It will be indigenous Australians who bear the brunt of this precedent.
Posted by mjpb, Tuesday, 24 April 2007 12:22:32 PM
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