Aboriginal Law Bulletin
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by Eric Wilson
On 17 June 1981, Mr B. Brown S.M. committed Constables M. A. Vaughan and R. W. J. Murray from the Court of Petty Sessions at Broken Hill for trial in the District Court sitting at Broken Hill commencing on 14 September. Both Constables were committed on charges of assault occasioning actual bodily harm against Colin Harris, an Aboriginal man from Wilcannia, NSW. Vaughan was also committed for an indictable common assault against Harris under s.61 of the Crimes Act (NSW). The latter charge was laid from the Bench by the Magistrate on the basis of the evidence before him.
The case came to court following an investigation by the NSW police Internal Affairs Branch which acted upon a written complaint under the Police Regulation (Allegations of Misconduct) Act 1978. The complaint was lodged on behalf of Colin Harris by the Western Aboriginal Legal Service Ltd., (WALS).
On 31 December 1980, Colin Harris and his two brothers were taken into protective custody as intoxicated persons by Constables Vaughan and Murray of the Wilcannia police. This followed a fight outside the Queen's Head Hotel at Wilcannia between the brothers. They were conveyed the short distance to the police station in the back of the police van and Stephen and Victor Harris were taken from the van and locked up. Colin Harris remained in the van for a short period and then came out. He and the two Constables went into the cell complex and out into the exercise yard where he and Murray commenced to fight. A short time later and whilst they were still fighting, it is alleged that Vaughan struck Colin Harris on the back of the head with his baton. Harris fell to the ground, whereupon Murray allegedly kicked him a number of times in the face and body. Harris alleges that he suffered injuries to his face at this time. He was then locked in a cell. It is alleged that some time later, Vaughan and Murray came back to the cell and that Vaughan kicked and punched Colin Harris.
Colin Harris, was released from the cells into the care of Dr R. Nesbit of the local Aboriginal Medical Service. He was treated at the hospital where Dr Nesbit took photographs of the injuries. He remained in hopsital overnight for observation. Dr Nesbit states: 'At the gaol I saw Colin Harris and he complained of abdominal pain and on examination he had several facial lacerations, one of which was bleeding. At this time I asked whether I could examine him fully at the Hospital. At the Hospital he complained of left-sided abdominal pain and low back pain. On examination he had a four centimetre laceration on the forehead, which was deep. He had two small lacerations below the left eye. There was marked bruising around the eye on both sides. Over the right chest anteriorally and shoulder region there was bruising. There was further bruising below the ribs anteriorally on the left. On palpation of his abdomen he was very tender on the left upper part. On examination of his back he was tender over the mid-spine area but no marks were seen. There was also bruising on the back of his neck on the left side. Six stitches were inserted in the forehead'.
On 31 December and 1 January a number of witnesses were seen by John Pearson (WALS) and John Terry (ALS). A number of statements were taken. A written complaint was made by Pearson to the NSW Commissioner for Police on 6 January 1981. This letter outlined the allegations and the injuries. On 5 January a small article had appeared in the Sydney Morning Herald indicating that action would be taken. Constable Vaughan issued a summons against Colin Harris alleging that he had been assaulted on 31 December whilst being a Constable executing his duty.
On 15 January two detectives from the police Internal Affairs Branch (IAB) arrived in Wilcannia to conduct the investigation. The complainant Colin Harris was the first to be interviewed. Interviews occurred over three days. All the persons in the cells on the night of 31 December 1980 were interviewed. Sergeant Leggett, the officer-in-charge of Wilcannia police station, also made a statement. Witnesses who saw Hams before and after his time in the police station made statements. Both Constables were interviewed.
To determine who had to be interviewed, the AIB detectives scrutinised the book relating to admissions to the cells. The investigators also had access to the cell and exercise yard of the police station to observe where the alleged events occurred and to take witnesses there for assistance in explaining what occurred. Clinical notes relating to the incident were obtained from Wilcannia District Hospital. A sister who assisted the doctor was interviewed and Dr Nesbit made a statement with the assistance of clinical notes.
In all seventeen witnesses made statements about the matter. Photographs of Mr Harris' injuries taken by Dr Nesbitt were obtained from him. Whilst they were in Wilcannia, the investigating officers arranged for photographs of the cells and exercise yard to be taken and for notes to be made concerning the layout of the police station.
Once all the material had been gathered, it was referred to the Prosecutions Branch of the Police Force where it was analysed by an Inspector of Police. His view was that both of the Constables should be prosecuted. The recommendation for prosecution was then referred to the Commissioner of Police who then took action against the two police.
On 21 March both Constables were served with Summonses returnable at Broken Hill on 6 April. Both Constables remained on duty. The matters were then adjourned to 15 June 1981. The usual Magistrate indicated that he would not hear the matter and it was learned that a Magistrate and a prosecutor from Sydney would deal with the proceedings. All witnesses for the prosecution were served with subpoenas by a police officer from Broken Hill, with help from the WALS.
The committal proceedings, to see whether there was evidence sufficient to warrant putting the defendants on trial, lasted two days. The WALS ensured the attendance of Aboriginal witnesses from Wilcannia. Both Constables were represented at the proceedings. Ten witnesses were called for the prosecution. Following the evidence of the witnesses, vigorous cross-examination, and the admission of the photographs of the injuries to Colin Harris, as well as submissions from the defendants' counsel, the Magistrate committed both Constables for trial in the District Court at Broken Hill.
The trial commenced on 14 September before Cameron-Smith J, and was over by 16 September. Both Constables were represented, one by a QC and junior barrister. Following the conclusion of the case for the Crown, the Jury were invited by the Judge to acquit, or to indicate that they wished to hear more evidence. After a short time - less than one hour - they returned with verdicts of Not Guilty.
In any court-room situation where criminal charges are laid there are many forces at work, some of which are political, some emotional. This was a complex situation from which some factors can be isolated.
It is relatively easy to cross-examine to some effect as to the number of punches thrown in a fight. The fact that the fight did occur enabled the defence to postulate the existence of cuts on the face of Colin Harris before his arrival at the police station. It also provided the defence with inconsistencies between the accounts given by the onlookers and the participants in the fight.
The calling of a police officer in the Crown case who was the officer in charge of the police station on 3 1 December 1981 provided the Crown case with a glaring inconsistency from the outset. Sergeant Leggatt always maintained a version of the events which accorded with that given by the accused in their records of interview. Briefly this was that Harris came into the police station with some small cuts on his face. He was argumentative and wanting to fight the police whilst at the same time being affected by liquor. He declined the services of a doctor for the cuts and was later with some effort placed in the cells. This evidence directly contradicted that evidence which maintained that there were no cuts on the face of Colin Harris before he reached the police station. The evidence of this officer effectively `shot down' the case on the basis of reasonable doubt, right from the start.
The prior good character of the police was balanced against the prior record of the complainant which included convictions for assault (including assaulting police) and resisting arrest. It is not uncommon for Aboriginal people in the west of NSW to have these kinds of prior convictions because of the way the total situation works between the police and Aborigines. Much was made of Colin Harris' record by the defence.
The fact that alcohol was involved made it easy for the police to present a plausible case. This factor again made it easy for the defence to attack witnesses on their recall.
The Judge was able to sum up in terms which sounded like an invitation for the jury to acquit. Indeed by the time the examination and cross-examination had been completed, the evidence was such that there would have to have been a doubt which was reasonable in the minds of the all-white jury. After all they were people from Broken Hill, not familiar with the socio-political system in Wilcannia, who were listening only to the evidence then before them. They did not hear the witnesses make their complaint first to the solicitors and others on the spot, then to the police from the Internal Affairs Branch, and then to the Magistrate in the committal proceedings. They heard only the end result which as is often the case in trial situations, was a good deal `softer' than first accounts.
This case is an example of how the adversary situation favours those who have power, some education, and who are versed in the system used. The plain fact is that in any situation where the word of one is to stand against the word of another, those with competencies which ensure success in the society will do better. This reality is constantly faced by workers in Aboriginal Legal Services. Often Aboriginal defendants give instructions that they do not wish to give evidence. The very thought places some people under great strain. This pressure is even greater when they are called on as witnesses to give evidence against the very people who in the past have been bringing them to court.
The very fact that both police officers were made to stand trial in the Magistrate's Court and then in the Judge's Court has been a source of some amazement to Aboriginal people in Wilcannia. That was indeed a major achievement. But people are now required to live with the aftermath in a town which has a population of about one thousand and a police force of six, that is, one per 167 persons.
There are immense personal pressures on many Aboriginal families in Wilcannia. Whilst unemployment and gross over-crowding persist, individuals will react. Often this reaction is in public and it generally involves the consumption of alcohol. Police officers who are young and unfamiliar with situations such as the one in Wilcannia may not always be equipped to handle a given situation when it arises. For Colin Harris, this type of situation has again occurred. It will be interesting to see whether the system will afford him the benefit of any indulgence in his next court appearance.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/24.html