Leanne Clare

Leanne Clare is the former Queensland Director of Public Prosecutions. On the 2nd April, 2008 she was appointed Judge of the District Court of Queensland. As Director of Public Prosecutions four of her decisions have been controversial. [ [http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1401264.htm Di Fingleton; The Siege of Glenrowan] .]

These decisions related to the following people:

*Pauline Hanson, who was prosecuted for electoral fraud as a result of a meeting between Clare, Mike Byrne QC and the Acting Senior Legal Officer but had her conviction quashed on appeal,

*Scott Volkers, who was not prosecuted for rape allegations due to the opinion of Clare and Nicholas Cowdery QC of the NSW DPP that rape allegations including evidence that the victim orgasmed should not proceed,

*Diane Fingleton, who was prosecuted for intimidation of a witness and had the conviction quashed on the second appeal pursuant to Magistrates' immunity from criminal prosecution,

*Chris Hurley, whom she decided should not be prosecuted in spite of a Coroner's finding that Hurley had caused the death of an Aboriginal man named Mulrunji Doomadgee. Hurley was later prosecuted after an independent review and acquitted by a jury.

In all these cases her decisions were either immediately controversial or became controversial in conjunction with a new controversy.

Controversial decisions

Pauline Hanson

One controversial decision was when Clare decided that the Department of Public Prosecutions would prosecute Pauline Hanson and David Ettridge for electoral fraud.

Pauline Hanson was a federal politician in Australia. In October 1997 she registered One Nation as a political party, an act requiring 500 members. Registration carried financial benefits for the cost of electoral campaigns.]

The Commissioner of Police directed that the matter be referred to the DPP to seek her opinion due to the public interest. In a meeting between the DPP, her deputy (Mr Mike Byrne QC), and Ms Loder on the 28 June, 2001 Ms Loder presented an "executive summary" and this was discussed. Her summary advised that documentary evidence established that the people on the list were members of a support movement not members of the party.]

cott Volkers

Clare also made the decision to not press charges against Scott Volkers, an Australian swimming coach, in spite of allegations by young female swimmers that he had sexually abused them. This was criticized by the Crime and Misconduct Commission (CMC) and then reaffirmed after seeking advice from Nicholas Cowdery QC of the NSW DPP. The reasoning for not proceeding was apparently a belief that rape victims don't orgasm. [ [http://www.abc.net.au/7.30/content/2004/s1120822.htm New controversy surrounds Volkers case] , The 7.30 Report, Australian Broadcasting Corporation, 01 June 2004.]

Julie Gilbert who had complained about Volkers later launched a private criminal prosecution of Volkers in the Queensland Supreme Court before Justice Cate Holmes. Her barrister, Russell Hanson QC, provided the judge with two police statements containing her allegations, and the CMC report critical of the DPP decision. [ [http://www.abc.net.au/news/stories/2004/11/04/1235104.htm Judge Reserves Decision in Volkers case] , ABC News, Australian Broadcasting Corporation, 04 November 2004] However the court dismissed the application. [ [http://www.abc.net.au/worldtoday/content/2004/s1266592.htm Supreme Court dismisses Volkers case] , The World Today, Australian Broadcasting Corporation, 16 December 2004.]

Diane Fingleton

Clare was also involved in the DPP's decision to charge Di Fingleton with the offence of intimidation of a witness [http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1401264.htm] . Fingleton was convicted by a jury, and served jail. She appealed her conviction with the Queensland Court of Appeal but the conviction was upheld. [ [http://www.smh.com.au/articles/2003/06/26/1056449370532.html Fingleton Loses Appeal but not Job] , The Sydney Morning Herald, Fairfax Corporation, 27 June 2003.]

Her conviction was later quashed in a unanimous decision of the High Court of Australia who held that her conduct was protected by immunity from criminal prosecution by Queensland legislation. [ [http://www.hcourt.gov.au/media/Fingleton_v_The_Queen.pdf Diane McGrath Fingleton v Queen] , Public Information Officer, The High Court, 23 June 2005.] Although immunity from prosecution was not raised by her Barrister at trial and the Queensland Court of Appeal upheld the conviction (see above) Leanne Clare's failure to realize that Fingleton was immune from Criminal prosecution in the circumstances has been described in the media as controversial and a "debacle" when she decided not to prosecute Chris Hurley. [ [http://www.abc.net.au/7.30/content/2006/s1815985.htm Beattie stands firm amid hostile Palm Island Reception] , 7.30 Report, Australian Broadcasting Corporation, 20 December 2006.]

Chris Hurley

Most recently, Clare attracted controversy over her decision not to have Police Senior Sgt Chris Hurley prosecuted over his involvement in the 2004 death of an Aboriginal man Mulrunji [ [http://www.smh.com.au/news/national/anger-at-custody-death-ruling/2006/12/14/1165685807598.html Anger at custody death ruling - National - smh.com.au ] ] , as she believed there was insufficient evidence to support a criminal charge.

The DPP decision not to charge was made in spite of a formal finding by the Deputy Chief Coroner Christine Clements that an assault by Hurley caused the death and her referring the matter to the DPP to consider charging.

The incident was also investigated by the Crime and Misconduct Commission (CMC) who are responsible for investigating allegations of police misconduct. [cite news|title=Our Jurisdiction|url=http://www.cmc.qld.gov.au/asp/index.asp?pgid=10805 = Crime and Misconduct Commission | date=02 December 2006|accessdate=2007-03-20] The CMC also concluded that there was insufficient evidence albeit in the context of disciplinary proceedings rather than criminal trial. They determined "that the evidence would not be capable of proving before any disciplinary tribunal that Senior Sergeant Hurley was responsible for Mulrunji’s death." [cite news|title=CMC statement regarding Palm Island death in custody|url=http://www.cmc.qld.gov.au/asp/index.asp?pgid=10814&cid=5201&id=978= Crime and Misconduct Commission | date=14 December 2006|accessdate=2008-05-13]

Mulrunji died as a result of a fatal injury to his liver. According to the report of Coroner Clements, two witnesses gave direct evidence that implicated Hurley in the death. These were Roy Bramwell and Patrick Bramwell. [cite news|title=Coroner's Report|url=http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf= Justice Department | date=27 September 2006|accessdate=2007-03-20]

Roy Bramwell was being questioned after three indigenous women claimed he had assaulted them all. One needed to be airlifted to the Townsville Hospital as a result of the alleged assault. [cite news|title=Coroner's Report|url=http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf= Justice Department | date=27 September 2006|accessdate=2007-03-20] He was later found guilty of charges including assault occasioning grievous bodily harm, common assault and wilful damage and is serving a 3 year jail sentence. [cite news|title=Mourning Mulrunji|url=http://www.news.com.au/couriermail/story/0,23739,20500322-3102,00.html= Courier Mail | date=30 September 2006|accessdate=2007-10-09] . He alleged that while he was awaiting questioning Hurley punched Mulrunji three times in the head and then kicked him. The kicking was ruled out by medical evidence. [cite news|title=Coroner's Report|url=http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf= Justice Department | date=27 September 2006|accessdate=2007-03-20]

Patrick Bramwell initially said that he saw nothing. [ [http://www.smh.com.au/news/National/Victim-cried-for-help-as-policeman-beat-him-says-witness/2005/02/28/1109546799380.html Victim cried for help as policeman beat him says witness] , The Sydney Morning Herald, Fairfax Corporation, 28 February 2005.] He later gave evidence that he was in a separate cell to Mulrunji and unable to help but witnessed Hurley take Mulrunji out of the cell and assault him. The Coroner did not accept this as credible as he was on video asleep next to Mulrunji in the same cell. [cite news|title=Coroner's Report|url=http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf= Justice Department | date=27 September 2006|accessdate=2007-03-20]

Clements put forward two competing theories for the death. One was an accident while Mulrunji was struggling to escape from Hurley's custody after punching Hurley in the jaw upon arrival at the watch house. The other was death as a result of an assault immediately after the pair fell struggling into the watchhouse from the entrance step. The second theory was based on allegations of Roy Bramwell. For 6 or 7 seconds Hurley was in the presence of Mulrunji with no-one other than Roy Bramwell witnessing. [cite news|title=No hint of Mulrunji's injury, Palm Is trial told|url=http://www.abc.net.au/message/news/stories/ms_news_1951154.htm= ABC | date=14 June 2007|accessdate=2007-09-04] . Clements accepted the second theory. [cite news|title=Coroner's Report|url=http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.pdf= Justice Department | date=27 September 2006|accessdate=2007-03-20]

The DPP decision was heavily criticised in the media [http://www.smh.com.au/news/national/anger-at-custody-death-ruling/2006/12/14/1165685807598.html] and triggered a political backlash.

This backlash resulted in the Beattie government taking the controversial action of commissioning a review of Clare's decision [cite news|title=Palm Island review blasted|url=http://www.news.com.au/couriermail/story/0,23739,20982826-3102,00.html= Emma Chalmers & Roseanne Barrett Courier Mail | date=29 December 2006|accessdate=2007-03-20] [ [http://www.abc.net.au/news/stories/2007/06/23/1959852.htm Qld Opposition defends union’s Hurley Ads] , Nicky Haydon, ABC News, Australian Broadcasting Corporation, 23 June 2007.] The review was conducted by Sir Laurence Street, and it found that, based on circumstantial evidence, Hurley should stand trial for Mulrunji's death [http://www.thepremier.qld.gov.au/library/pdf/sir_laurence_street/letter3.pdf http://www.news.com.au/couriermail/story/0,23739,21934251-952,00.html] .

Hurley was charged with manslaughter, and stood trial. He was found not guilty by a jury in the Supreme Court of Queensland in Townsville [http://www.police.qld.gov.au/News+and+Alerts/Media+Releases/2007/06/Response+from+Police+Commissioner+re+Hurley+verdict.htm] .

At the ceremony swearing Leanne Clare in as Judge the Chief Judge apparently expressed an opinion on the above controversial decisions stating that Clare had filled her previous role as DPP in a "wise and fearless" manner. She further expressed confidence in Clare's appointment to the bench. [ [http://www.news.com.au/couriermail/comments/0,23836,23471296-3102,00.html Leanne Clare sworn in as Judge] , Mark Oberhardt, Courier Mail, Queensland Newspapers, 3 April 2008]

References