Inquest into the death of Delvene Thompson
[2023] NTLC 24
•6 December 2023
CITATION: Inquest into the death of Delvene Thompson [2023] NTLC 24
| TITLE OF COURT: | Coroners Court |
| JURISDICTION: | Darwin |
| FILE NO(s): | D0085/2021 |
| DELIVERED ON: | 6 December 2023 |
| DELIVERED AT: | Darwin |
| HEARING DATE(s): | 31 May, 1 & 2 June 2023 |
| FINDING OF: | Judge Elisabeth Armitage |
| CATCHWORDS: | Fatal crash, police pursuit, pursuit resolution, incident controller, traffic apprehension, emergency vehicle driving, search phase, covert monitoring, boxing, death in custody, body worn video |
| REPRESENTATION: | |
| Counsel Assisting: | Chrissy McConnel |
| Counsel for Northern | |
| Territory Police: | Michael McCarthy |
Judgment category classification: B
| Judgement ID number: | [2023] NTLC 24 |
| Number of paragraphs: | 101 |
| Number of pages: | 33 |
IN THE CORONERS COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. D0085/2021
In the matter of an Inquest into the death of
DELVENE THOMPSON
ON: 16 May 2021
AT: Darwin
FINDINGS
Judge Elisabeth Armitage
Introduction
1. Miss Thompson[1] was born in Katherine on 12 March 1985 to Dorcas
Wulwanga Ashley and Alexander Bunguruta Thompson. She grew up
in a large and happy family with seven siblings. She spent her younger
years in Ngukurr but when her parents separated she moved with her
mother and a younger brother to Katherine in 1997. During her primary
school years Miss Thompson was a good student and enjoyed playing
sport. She was popular and had many friends. She attended high school
in Katherine until about year 10. Following school she met her first
partner and they had a son in 2010. That relationship ended in 2013.
Miss Thompson went on to have other relationships and more children. She worked as a traffic controller for a period when living in Eva
Valley and moved to Darwin in 2020 with family.
2. On 16 May 2021 Miss Thompson was a passenger in a car that crashed
in Darwin. The driver and other passengers survived, some with serious
injuries, but tragically Miss Thompson passed away. Moments before
the crash the car was pursued by police and in those circumstances it
was determined that an inquest should be held.
Miss Thompson’s older sister , Margaret, and her aunty, Faith, attended
the inquest via video from Ngukurr. Through their victim impact
statements the family explained their shock, disbelief and suffering
following Miss Thompson’s passing. I thank them for participating in
the inquest and offer my sincere condolences to Miss Thompson’s
children, her extended family and community for her tragic passing.
The events of 15 & 16 May 2021
4. On Saturday 15 May 2021 Miss Thompson was with family members,
Greg Hall and Barbara Silver, in Palmerston. Miss Silver’s boyfriend,
Peter Lynch, arrived and they all went out in his uncle’s silver Holden
Astra (the Astra). The Astra was unregistered and uninsured and should
not have been driven on the road.
5. At around 2.10am on Sunday 16 May 2021, two police officers were
patrolling Darwin city in a marked police sedan with call sign Tango
206. There was a lot of vehicle and pedestrian traffic in the city because
the Bass in the Grass music festival had just finished and festival goers
had moved into the city’s clubs and pubs.
6. The police in Tango 206 spotted the Astra on Smith Street. Even
though he was unlicenced, Mr Lynch was driving. Mr Hall was in the
front passenger seat. Miss Thompson was sitting in the rear seat on the
driver’s side and Miss Silver was sitting in the rear seat on the
passenger’s side.
7. The police noticed that the Astra was in poor repair. They conducted a
registration check which revealed that the registration had expired on
17 December 2020 and the listed owner was disqualified from driving.
Based on this information the police decided to conduct a traffic
apprehension (TRAP), that is, they decided to pull the car over. As it
was too busy to safely do this in the middle of the city they followed
the Astra waiting for a safe location.
8. The Astra travelled along Mitchell Street, right onto Daly Street, and
right again back onto Smith Street. The Astra was now heading back
towards the heavier city traffic but, as they were in the quieter end of
Smith Street, the police decided it was safe to conduct the TRAP.
Lights were activated indicating to the driver that he was required to
pull over. Initially Mr Lynch complied and he pulled over near 106
Smith Street. The police pulled in behind.
9. One officer exited the police car and approached the Astra. But Mr
Lynch did not wait to be spoken to and took off at speed. The officer
ran back to Tango 206. Lights and sirens were activated and for about
16 seconds the police chased the Astra along Smith Street. However,
due to the volume of traffic and pedestrians, they quickly determined
it was unsafe to continue. They deactivated their lights and sirens,
pulled over and stopped.
10. At 2.13am Tango 206 radioed Police Communications (JESCC) and
reported the attempted TRAP, adding that the Astra had taken off at
speed, it was unregistered, and linked to a disqualified driver. They
reported they had not pursued due to “the significant number of drunken pedestrians in the area.”[2] Other on duty police listened to these
reports over the police radio.
11. Mr Lynch drove through Darwin city dangerously. Police officers in a
police vehicle on Smith Street,[3] saw the Astra on the wrong side of the
road driving towards the Smith Street Mall at a speed estimated to be
around 80-100km/h. It turned right onto Knuckey Street and was
caught on CCTV[4] crossing the centre lane, speeding down the wrong
side of the road, and travelling through the Knuckey/Mitchell Street
intersection against a red light.
12. Superintendent Daniel Shean was sitting in an unmarked police car at
the Knuckey/Mitchell Street intersection. He was the rostered incident
controller for Bass in the Grass. Although his shift ended at 2am he was
still assessing the number of pedestrians in the city, and their
behaviour, to ensure there were sufficient police on duty for the safety
of the public.
13. Superintendent Shean heard the radio communications[5] and saw the
Astra speeding past him on the wrong side of the road and proceeding
through a red light. It turned north onto The Esplanade, undercutting
the turn and narrowly missing a white SUV travelling south.[6]
Superintendent Shean decided to follow at a safe distance until the
Astra was out of the city. He intended to re-engage the vehicle and
apprehend the driver when it was safe to do so.
14. From about 2.13am Superintendent Shean covertly monitored the Astra
without alerting the driver that he was police.[7] He provided updates over the police radio on its location and manner of driving. These were
monitored by other police on the road and by JESCC.[8]
15. A police member from the dog operations unit driving an unmarked car
(the dog unit) heard the radio communications and fell in behind
Superintendent Shean on Dick Ward Drive. The dog unit had a patrol
dog on board that was trained to apprehend people and this was
communicated over the police radio. The police in Tango 206 also took
up a position behind the Astra. This meant that three police vehicles
were following the Astra: Superintendent Shean, Tango 206 and the
dog unit.
16. Police in a marked police paddy wagon (the paddy wagon) were also
monitoring the radio and were driving in the middle lane on Trower
Road, in the direction of Casuarina. They were carrying a Tyre
Deflation Device (TDD) and planned to be in the general vicinity of the
Astra in case their assistance was required.
17. From Dick Ward Drive the Astra turned right onto Progress Drive, right
onto Nightcliff Drive and, via the slip lane, left onto Trower Road in
the direction of Casuarina. Coincidentally, when the Astra turned onto
Trower Road in the left lane, the paddy wagon which was travelling in
the middle lane, pulled alongside next to the Astra.
18. Within moments of seeing the paddy wagon, Superintendent Shean
pulled into the middle lane behind the paddy wagon, overtook the paddy
wagon, moved left in front of it and then left again in front of the Astra.
He deliberately slowed down forcing the Astra to also slow down.
19. Although there were no radio communications between any of the
police vehicles, the other police quickly understood that
Superintendent Shean was attempting a TRAP. Tango 206 and the dog unit, which were still behind the Astra, identified themselves as police
by activating their emergency lights and closed in. In an attempt to ‘box
in’ the Astra, the paddy wagon slowed along its right side. However,
the execution of the manoeuvre was misjudged. The gap between the
rear of Superintendent Shean’s car and the front of the paddy wagon
was big enough for the Astra to pass through. Mr Lynch took the
opportunity to squeeze through the gap and once again escaped at
speed.
The crash and its consequences
20. With lights and sirens activated on all police vehicles, a police pursuit
was called by the dog unit at 2.22am, “urgent, urgent, urgent, now in
pursuit of that silver Holden Astra, we’re inbound towards Casuarina
on Trower Road, breached a red light and going to let 206 take over
when they can get in front.”[9]
21. CCTV and body worn video depicts all police cars in pursuit with their
emergency lights and sirens activated.[10] Tango 206 (a designated
pursuit vehicle) took the lead. The video footage also depicts a number
of civilian vehicles on the road at that time.
22. Mr Lynch sped along Trower Road and proceeded through the Rapid
Creek Road intersection against a red light. He continued speeding to
the Lakeside Drive intersection. A grey Honda CRV on Lakeside Drive
had a green light and commenced turning right onto Trower Road.
Although Mr Lynch had a red light he again proceeded through this
intersection and crashed into the turning Honda. The point of impact
is shown in the following photo.
23. The crash occurred at 2.23am, about 31 seconds after Mr Lynch fled
the attempted TRAP on Trower Road and about 10 minutes after he
evaded police on Smith Street.
24. The impact sent the Honda spinning in a counter-clockwise direction
before it came to a stop on Trower Road. Its engine block was torn
from the vehicle and ended up on the opposite side of Trower Road.
The damage to the Honda is depicted in the following photographs.
25. The Astra rotated in a counter-clockwise direction and struck a traffic
light which caused its rotation to reverse. It side swiped a light pole
and stopped on the median strip. The course of its travel is depicted in
the reconstruction photo below and the damage to the Astra is depicted
in the further photos.
26. The pursuing police officers immediately provided first aid to the
occupants of both vehicles. Mr Hall suffered a fractured leg and pelvis
and a ruptured bladder. Miss Silver had a lacerated liver, a broken
finger and fractured ribs. Mr Lynch suffered severe injuries to his left
leg which resulted in a below knee amputat ion. Blood taken at the
hospital revealed Mr Lynch had a blood alcohol reading of 0.097
g/100mls, placing him in the medium range for drink driving.
27. The driver of the Honda suffered 7 broken ribs and prolonged
psychological and emotional distress. His passenger suffered back pain
and psychological trauma.
28. Miss Thompson was removed from the vehicle and police administered
CPR. However, her injuries were fatal and the attending paramedics
declared her deceased at the scene.
29. An autopsy was conducted on 17 May 2021 by Forensic Pathologist, Dr
Bjorn Swigelaar. He identified injuries consistent with Miss Thompson
wearing a seat belt at the time of the crash. The internal examination
revealed extensive trauma. He concluded that she died from blunt force
injuries to the neck caused by the crash.
30. Detective Acting Sergeant Jeshua Kelly, conducted the crash analysis,
and provided the following evidence and opinions:
At the point of impact the speed limit was 70kph. The pre-impact speed of the Astra was between 157 and 164kph. The pre-impact speed of the Honda was less than 30kph.
Trower Road was displaying a red traffic signal for 7.5 seconds prior to the crash, and the yellow traffic signal had been activated for 5.5 seconds prior to that.
The driver of the Astra had sufficient time to stop once the signal
turned red. The cause of the crash is consistent with the driver of the Astra
deliberately proceeding against the red traffic signal. [11]31. Mr Lynch was charged and pleaded guilty to: driving dangerously while
being pursued by police;[12] recklessly engaging in conduct that causes
death;[13] and recklessly engaging in conduct that gave rise to the danger
of death.[14] He was 21 years of age at the time of the crash and 22 when
he was sentenced to 8 years imprisonment with a non-parole period of
4 years. In sentencing remarks, Justice Southwood described the
driving as extremely dangerous, motivated by a desire to evade police
and escape arrest. His Honour said that it was not a momentary or
fleeting decision to flee police, rather it was a lengthy course of
conduct and a deliberate choice. He found that Miss Thompson had
suffered a very violent death and the way Mr Lynch drove before the
crash must have terrified his passengers.[15]
Formal Findings
32. Pursuant to section 34 of the Coroners Act, I make the following
findings:
(1) The identity of the deceased is Miss Thompson, born on 12
March 1985 in Katherine in the Northern Territory.
(2) The time of death was approximately 2.30am on Sunday 16 May
2021. The place of death was Trower Road, Alawa, Northern
Territory.
(3) The cause of death was blunt force injuries to the neck due to a
motor vehicle accident.
(4) The particulars required to register the death will be provided
to the Office of Births, Deaths and Marriages.
Issues for the inquest
33. It was first necessary to determine whether this was a death in custody.
Additionally, the inquest considered whether relevant police policies
and procedures had been followed and whether they were appropriate
and sufficient.
34. While it is clear from the factual circumstances that it was the
dangerous driving of Mr Lynch that caused the crash and the death of
Miss Thompson, I was concerned that police decisions and actions may
have heightened the risk or acted as a catalyst for his shocking decision
to drive so dangerously.
Was this a death in custody?
35. The definition of a ‘person held in custody’ includes a person in the
process of being taken into or escaping from the custody or control of
a police officer.[16] As it was the driver, Mr Lynch, who police were
attempting to apprehend and not his passenger, Miss Thompson, I
concluded that her death was not a death in custody.
36. Because her death was not a death in custody, the police general order
Coronial Investigations and Inquests[17] did not apply. However, as this
was a fatal incident resulting from police contact with the public ,
another General Order required that the Territory Duty Superintendent
be notified, and that a Commissioned Officer be appointed to be in
charge of the investigation to ensure all aspects of the investigation were carried out competently and thoroughly.[18] Both of these General
Orders have now been replaced with a new single General Order: Crime
(Homicide and Serious) Investigation.[19]
37. The new General Order applies to deaths in custody, reportable deaths
and serious crimes. Applying the definitions of the new general order
to the circumstances of this case, Miss Thompson’s death was a
reportable death and a serious crime. Under the new General Order a
crash resulting in death is to be investigated as a serious crime until a
Deputy Commissioner determines the extent of the investigation. While
deaths in custody are required to have a senior investigating officer of
at least the rank of a detective superintendent allocated, serious crime
investigations may be allocated to less senior investigators.[20]
38. In order to ensure that deaths connected to a police pursuit are
investigated thoroughly and at the highest level, I was pleased to hear
from Assistant Commissioner Travis Wurst that the Senior Executive
Team had agreed that the new General Order would be amended to
ensure that deaths occurring in the context of a police pursuit are
investigated in the same way and as thoroughly as a death in custody.[21]
These types of investigations are not limited to investigations of fact.
They require a robust review of police decisions and conduct to
determine whether all the relevant police policies and training have
been followed. They should also consider whether the policies,
guidelines and training programs are sufficient and appropriate to meet
the needs of the police and the public. Given those complexities I consider it is necessary and appropriate for a Commissioned Officer to
investigate all deaths arising from or connected to police pursuits.
39. As this was not a death in custody an inquest was not mandatory.
However, it was appropriate to hold an inquest because it was a death
connected to a police pursuit. In those circumstances it was prudent to
scrutinise police conduct, policies, procedures and training to
determine whether policy had been complied with, whether the policies
were adequate, and whether there were any changes that should be made
with a view to preventing similar deaths in the future.
Did police engage in a 16 second pursuit on Smith Street?
40. Under the police General Orders[22] a TRAP means the actions of a
police driver who in the course of undertaking law enforcement
activities, seeks to engage with and stop a motor vehicle. A successful
TRAP involves the police issuing a direction to stop and the target
vehicle pulling over. A direction to stop is any action or instruction
given by a police officer to indicate that the driver is to stop, including,
hand signals, signs, or lights and sirens.
41. The general order also provides the following definitions:
13.8 Evading driver is the driver of a motor vehicle who, through
their actions,….fails to comply with a direction of police
and/or fails to stop as soon as practicable.
13.9 Hostile vehicle is a vehicle that is non-compliant with police
directions to stop.
42. On discovering the Astra was unregistered and possibly driven by a
disqualified driver, the police in Tango 206 had sufficient grounds to
execute a TRAP. But it was not safe to do so immediately because,
according to one of the police officers, “during our earlier laps around
town there were people in various states of intoxication, staggering all
around the road. It was just mayhem, people walking out against
crossings.”[23] Having assessed the risks, the police appropriately
delayed executing the TRAP until they determined it was safe to do so.
43. Once they decided to perform a TRAP their training required them to
notify JESCC: of that intention, their location, and details of the
vehicle of interest.[24] In this instance the police failed to notify JESCC.
I will return to this later in these findings.
44. When the police lights were illuminated, Mr Lynch initially pulled over
and clearly demonstrated that he understood he had been directed to
stop. However, his apparent obedience was a ruse because, when one
of the officers exited the police car, he used the opportunity to take off
at speed. Applying the General Order definitions, Mr Lynch was now
an ‘evading driver’ and the Astra was a ‘hostile vehicle’.
45. He headed back towards the city centre, the very location where the
police had previously determined it was too risky to stop him. In spite
of that recent risk assessment, the police chased with their lights and
sirens activated for 16 seconds before again deciding it was too risky
to continue.
46. There were differing opinions about this period of police driving. Some
police considered that it was Emergency Vehicle Driving, a precursor
to a possible pursuit, others thought it was a pursuit. The difference is
important because if it was a pursuit, special rules applied.
47. The General Order provides the following:
13.15 A police pursuit is when a driver indicates by their actions or continuance of their manner of driving that they have no intention of stopping for the police, and
The police driver believes that the driver of the hostile
vehicle is aware of the requirement to stop; and
There is an active attempt by a police officer operating a motor vehicle to with emergency equipment activated, to apprehend the hostile vehicle.
13.5 Emergency Vehicle Driving (EVD) means the driving of a
motor vehicle which is pressing or demanding of prompt
action… displaying red and/or blue flashing lights or an
alarm…
30. Members will not undertake EVD unless:
…
30.2 they are in the process of moving into a position to check a
vehicle’s speed or to apprehend a driver/passenger for an
offence.
48. The police in Tango 206 considered the 16 seconds amounted to a brief
period of EVD which was engaged in to assess: whether Mr Lynch
would ‘continue his manner of driving’, and whether ‘he had no
intention of stopping’[25], and to be in position to pursue if he did not
stop.[26] However, having formed the view that he would not stop and
that it was too risky to pursue, they pulled over. I accepted that those
opinions were genuinely held, and they were consistent with their
contemporaneous radio communication.[27]
49. Sergeant Sean Rimmer, Officer in Charge of the Driver Training and
Road Policing Unit, reviewed the evidence and agreed with that
assessment. He explained that Tango 206 was ‘moving into position’ to
conduct a pursuit, and that ‘moving into position’ was a type of EVD.
Sgt Rimmer conceded that if the 16 seconds was EVD, it was unclear
at what point it would become a pursuit.
50. Assistant Commissioner Wurst also initially thought that the 16
seconds was EVD.[28] However, having listened to the evidence and
having reflected on the definition of pursuit, he changed his mind.
Ultimately it was his opinion that Tango 206 was engaged in a pursuit.[29]
I understood that Assistant Commissioner Wurst was satisfied by the
evidence that all the necessary points of the definition of pursuit had
been met, namely: by speeding off Mr Lynch had demonstrated he had
no intention of stopping; the police in Tango 206 knew that he was
aware he was required to stop (because he had initially pulled over);
and their immediate activation of lights and sirens combined with a
speedy chase was a short but active attempt to apprehend a hostile
vehicle.
51. Senior Sergeant Richard Howie, the Watch Commander situated in
JESCC, thought the definition of pursuit was clear. It was his opinion
that the 16 seconds was a pursuit. Applying common sense, he said
that if the Astra had crashed ‘then and there’ it would have been
classified as a pursuit.[30]
52. In the Inquest into the death of Patrick Wayne Bloomfield the former
Coroner, Judge Cavanagh, identified the potential for ambiguity in the
definition of pursuit[31] which may explain these differing opinions.
Although he did not agree that the definition was ambiguous, Assistant
Commissioner Wurst acknowledged that it was “open to
interpretation”,[32] Sgt Rimmer said it was a “grey area”,[33] and in the Organisational Review the definitions of EVD and pursuit were said
to be “somewhat overlapping”.[34]
53. Assistant Commissioner Wurst explained some of the inherent dangers
arising from police pursuits. He said that “drivers seeking to evade
police are unpredictable and pursing these drivers is dangerous as it
most frequently occurs on public roads, posing a risk to other road
users, pedestrians, persons living in houses in the near vicinity, the
alleged offender, any passengers in the car and the police.”[35] The
General Order is designed to mitigate those risks but it can only
effectively do so if it is applied at the time the risks arise. Accordingly,
it is important to remove, as much as is possible, ambiguity, room for
interpretation and grey areas from the definition of pursuit.
54. In response to Assistant Commissioner Wurst’s evidence that the 16
seconds was a pursuit, I said:[36]
I think that is a sensible posi tion. It’s hard enough to do all the risk assessments without adding a question in an officer’s mind, is this
or is this not a pursuit. The risks arise the minute the lights and
sirens are activated and you’re putting your foot on the accelerator
to catch up or pursue that vehicle. I do think it’s a very sensible
position that there be no ambiguity.
55. I found Assistant Commissioner Wurst’s and Watch Commander
Howie’s evidence to be persuasive and sensible. In this case, the risks
associated with a pursuit arose when Mr Lynch took off and the police
took off after him. During those 16 seconds, all the risks associated
with pursuits existed and the General Order concerning pursuits should
have applied to mitigate those risks. If there is ambiguity in the
definition of pursuit, that ambiguity should be removed.
What were the consequences of not identifying the 16 seconds as a pursuit?
56. The consequences for not identifying the 16 seconds on Smith Street as
a pursuit were significant.
57. If the 16 seconds had been identified as a pursuit, the General Order[37]
required that: it be called in over the radio, the Watch Commander is
notified, and a pursuit controller is to be appointed even if the pursuit
is of short duration. Given this was such a short pursuit, although there
may not have been time to appoint a pursuit controller, at least the
Watch Commander would have been properly alerted to the situation.
58. Of possibly greater importance to this case, the General Order[38] makes
it clear that when a pursuit is terminated there is to be no further
engagement with the vehicle unless a search phase is authorised by an
appointed pursuit or incident controller (incident controller), who may
be the Watch Commander, a Superintendent or an Officer in Charge. I
understood that, if appointed, an incident controller could co-ordinate
responses, establish search parameters and issue instructions as
required. The incident controller monitors any engagement with the
vehicle through radio communications, is to be consulted on resolution
strategies, and must approve any further pursuit.[39]
59. The guideline concerning Pursuit Prevention and Resolution Strategies
specifically provides:
The instructions of the pursuit controller or incident controller should be clear to all. The instructions may relate to specific police responses units and may include the following:
Observe and report,
Observe and shadow,
Observe and engage if safe to do,Boxing,
Tactical collisions,
Deliberate action,
Emergency action,
Deployment of TRG.
60. In this case because the 16 seconds was not identified as a pursuit this
extra level of external supervision was not activated. As Watch
Commander Howie explained, “as soon as there is a pursuit that triggers
another level of oversight” but in this case “nil pursuit had been
called…so I sort of continued with what I was doing,” which was
dealing with issues concerning a youth in custody. Shortly afterwards,
when he became aware of chatter on the radio about units following a
vehicle, he did not connect that with the Smith Street TRAP and
continued to prioritise the youth matter.[40]
61. The failure to identify the 16 seconds as a pursuit, and the
consequential failure to authorise a search phase and appoint an
incident controller, was a lost opportunity to properly coordinate any
continuing engagement with the Astra and a lost opportunity to monitor
and potentially reduce risk.
Did the police develop an appropriate resolution strategy?
62. In an effort to escape apprehension, initially Mr Lynch engaged in
highly dangerous driving that put himself, his passengers, and other
road users, at serious risk of harm or death. In circumstances where the
police did not know who was driving the Astra, it was appropriate that
they put in place a plan to identify or arrest the driver, when and if that
could be done safely. Critically, any plan needed to acknowledge, address and mitigate the risk that the driver would likely re-engage in
seriously dangerous driving to evade apprehension.
63. However, after the initial spree of dangerous driving, for about the next
10 minutes Mr Lynch did not break the road rules.[41] Although a search
phase had not been authorised, Superintendent Shean was covertly
monitoring the Astra and contemporaneously reporting its position and
movements to JESCC.
64. While this provided an opportunity to develop a resolution strategy,[42]
effective planning was hampered by the lack of an incident controller.
In this regard, Superintendent Shean said that he wanted to be at “arm’s
length” from “incident control”. He considered that the Duty
Superintendent or the Watch Commander in the communications centre
were better placed to take on the role of incident controller because
they had “oversight of the bigger picture of who is doing what around
the Darwin area and can coordinate other resources to come in, if they
are available, to assist in any resolution strategies.”[43]
65. Without an incident controller, police on the ground were doing their
best. They were communicating with each other over the police radio[44]
and available police were moving into position to assist.
Superintendent Shean was considering a number of possible outcomes.
If the Astra stopped he thought he would have enough vehicles to
establish a cordon, and if the driver ran, he thought the police dog could
assist with an apprehension. He was also considering the possible use
of a TDD.[45]
66. Ordinarily the Watch Commander approves the use of a TDD. But the
TDD instruction also permits officers of the rank of Senior Sergeant or
above to authorise their use, and in exceptional circumstances their use
without authorisation is also permitted.[46]
67. Superintendent Shean said that he believed he had requested the use of
a TDD and he expected that, if approved, this would trigger external
oversight by the Watch Commander. However Superintendent Shean
was mistaken. At 2.20am Superintendent Shean radioed, “once red and
blues get activated he’ll probably go again so would be good to have
spikes ready” but he did not clearly request TDD approval. When the
JESCC dispatcher heard mention of a TDD she spoke to the Watch
Commander. Exactly what was discussed is unclear but Watch
Commander Howie said that he did not recall any request for a TDD
being made and he did not engage in any additional active monitoring
of the situation.[47]
68. The officers in Tango 206 thought that, because he was above the rank
of Senior Sergeant, Superintendent Shean had authorised the use of a
TDD and at 2.22am they radioed asking if there were any units further
along Trower Road that might be able to set one up.
69. It seems there was some confusion between the police members about
whether a TDD had been approved and who was in charge. The various
police in the cars on the ground assumed, given his rank, that
Superintendent Shean was in charge. Superintendent Shean hoped the
Watch Commander would take control when TDD approval was sought.
Meanwhile, the Watch Commander was prioritising a youth in custody
matter as he had not been “triggered” to take control in circumstances
where no pursuit had been called in Smith Street, he had not connected the radio chatter to the Smith Street events, and there was no clear
request for approval to use a TDD.
70. I accept Superintendent Shean’s concession that in hindsight the
confusion could have been avoided if he had clearly requested the
Watch Commander to “come on board and start co -ordinating some
things.”48
71. If there had been incident controller or if Watch Commander Howie
had become aware of the developing complexity, it is likely that the
formulation and planning of more concrete and less risky resolution
strategies would have progressed and been better communicated. For
example, Watch Commander Howie said “if we had known that one of
the resolution strategies was just to follow the vehicle, a broadcast
could have gone out requesting other vehicles stay away or position
themselves…to not get involved initially.” [49]
72. Similarly, Assistant Commissioner Wurst said: [50]
In my view the most appropriate way to have managed the [Astra] at this point was to continue to follow the vehicle using the unmarked asset, for the marked vehicles to disengage or follow from a considerable distance, as had already been occurring , and devise an alternate resolution strategy that was well communicated and co-ordinated using available strategies such as TDD or waiting for the driver to stop his vehicle.
73. It is possible that with better planning and communication, the chance
meeting between the paddy wagon and the Astra, the subsequent
attempted TRAP, and pursuit, might have been avoided.
Should the TRAP on Trower Road been attempted?
74. I was concerned about the second TRAP being attempted in
circumstances where there had been a period of driving with no breach
of the road rule, it was likely Mr Lynch would drive dangerously to
avoid apprehension, and when there were no further resolution
strategies (such as TDD) in place.
75. Although it had been his intention to continue to follow the Astra, when
the paddy wagon pulled alongside, Superintendent Shean’s years of
experience led him to conclude the driver would be “spooked by the
presence of police and take off at speed.”[51] In circumstances which
were described as “fluid and dynamic,”[52] Superintendent Shean
attempted a TRAP in the hope that it would prevent any further
dangerous driving. In those circumstances, when police are making
decisions under pressure, it is difficult to conclude that an attempted
TRAP was unjustified or unreasonable. However, there were a number
of problems with its execution.
76. Similarly to the Smith Street TRAP, Superintendent Shean failed to
notify JESCC of his intention to conduct a TRAP and wait for approval.
Consequently, the other police on the ground were unaware of what he
was about to attempt.[53] I accept that Superintendent Shean regretted
this communication lapse.[54] That this was overlooked in both attempted
TRAPs suggests there may be need of further training or reminders
about this requirement.
77. The unorthodox method adopted for the attempted TRAP appeared
similar to, and was described by several police officers, as a boxing
manoeuvre. For example, two police officers parked at the Ryland/Trower Road intersection observed the TRAP and described it
as a “boxing in procedure” with the police vehicles slowing around the
Astra in an attempt to stop it.[55]
78. Shortly after the crash Superintendent Shean phoned Superintendent
Sandi Lee Mellon, the Territory Duty Superintendent situated in
JESCC. He explained to Superintendent Mellon that he had “attempted
to box the car in…but the driver of the van didn’t put themselves in
quite the right position so they were able to slip past .”[56] However, in
his oral evidence Superintendent Shean suggested that he had not “cast
his mind to a boxing manoeuvre” and the method adopted was an
unorthodox TRAP from the front.[57] Sgt Rimmer expressed a similar
opinion.[58]
79. The Pursuit Prevention and Resolution Strategies guideline describes
“boxing” as a “coordinated response” that “carries risk and must only
be completed by trained officers under specific risk thresholds.” [59] Only
members of the Territory Response Group (TRG) are currently trained
to conduct boxing. None of the police involved in the TRAP were
trained to use this technique. The evidence was that this was not a
planned or co-ordinated boxing and developed organically. However,
the attempted TRAP (which involved three police vehicles surrounding
and slowing down around the Astra) was a type of boxing and, even if
unplanned, was conducted in breach of police policy and training.
80. Accepting that there might have been sufficient grounds to conduct a
TRAP, the failure to follow police policy and procedure may have
contributed to its unsuccessful outcome.
Should police have engaged in a pursuit? When should it have been terminated?
81. Before commencing and throughout a pursuit all police are required to
conduct continuous risk assessments. Whenever the risk assessment
indicates that the risks cannot be effectively managed, the pursuit is to
be terminated immediately by any police member who makes that
assessment regardless of rank.[60]
82. When the Astra evaded the TRAP police immediately pursued and the
Astra crashed approximately 31 seconds later. What occurred during
those 31 seconds and whether the police actions were in accordance
with policy and procedure was considered in a Police Organisational
Review which found: [61]
c) After the failed TRAP on Trower Road, the incident evolved rapidly, noting the time from the second evade to the crash was a total of 31 seconds. During those 31 seconds, members called the pursuit, called the HV [hostile vehicle] breach of red light, breached the red light intersection themselves and the secondary vehicle moved into the primary position as the crash took place.
d) There were significant risks associated with the commencement of the pursuit on Trower Road, noting the following:
(i) the HV had shown no intention to stop or slow down and travel through red stop light intersections; and
(i) The HV was traveling towards a red stoplight Rapid Creek Rd and Trower Road intersection.
e) On balance, this review finds that it was appropriate to commence the pursuit and that the actions of the officers involved in the initiation of the pursuit were in accordance with policy and procedures. While there are inherent risks with all pursuits, members in this scenario had considerable supportive points in forming a decision to pursue:
(i) Trower Road is a 3 lane road which would subject any civilian traffic to a lesser risk;
(ii) pursuit engaged in the early hours of the morning, therefore significantly less vehicular and pedestrian traffic;
(iii) Trower Road is well lit with street lighting, road was sealed and dry;
(iv) adequate and appropriate resources were in position to assist. 206 being a traffic enforcement vehicle which would take over as primary vehicle if required, Canine unit available if offenders stopped and alighted from the vehicle and a caged divisional van to convey arrests; and
(v) given the extremely dangerous manner of driving committed by the evading driver within Darwin city, members did not want to risk having the vehicle returning back into the city or traveling to any other heavily populated area.
f) There were significant risks associated with continuing the pursuit once the HV had breached the first red light, noting:
(i) the HV had shown no intention to stop or slow down and travel through red stop light intersections;
(ii) the HV was traveling towards a red stoplight Rapid Creek Rd and Trower Road intersection; and
(iii) the HV has previously evaded police at speed in a built up area (Darwin city).
g) On balance, this review finds that it was inappropriate to continue the pursuit. While there remained a number of reasons in support of the pursuit (discussed above), the balance of the risk assessment shifted noting the actions of the evading driver in failing to stop or slow down at the red stop light Trower Road and Rapid Creek Road intersection demonstrated little thought to the safety of the evading vehicle occupants or any member of the public.
83. Assistant Commissioner Wurst came to the same conclusion.[62]
However, Sgt Rimmer expressed a different opinion. He said: [63]
…Having the luxury of looking at it frame by frame, our
recommendations would be that, faced with a red light, it would increase your risk assessments somewhat. And perfect world, being able to see the actions super clear in hindsight, we would expect our students more than likely to recommend a
termination…before the [first] red light.
84. With all the advantages of hindsight, I am persuaded by Sgt Rimmer’s
assessment. Firstly, even if the police did catch up to the Astra, I am
concerned that there was no resolution strategy. If the goal was to stop
the Astra and arrest the driver, how was that going to be achieved?
Secondly, just ten minutes earlier, Mr Lynch had demonstrated a
willingness to drive in an extremely dangerous fashion to avoid
apprehension. He had breached speed limits, driven on the wrong side
of the road, breached a red light and cut a corner only narrowly
avoiding collision with another vehicle. It was likely he would take the
same risks, and the risk was heightened because he was approaching an
intersection against a red light. In light of those risks and with no
resolution strategy in place, I consider that a pursuit was difficult to
justify.
85. Additionally, had the 16 seconds on Smith Street been identified as a
pursuit, another pursuit could not be commenced without first obtaining
approval.[64] I do not know whether a pursuit would have been approved
but in light of the identified risks, I consider it unlikely.
86. None of these comments should be taken to suggest that the actions of
the police on the night were anything other than done in good faith
under pressing circumstances. Given his previous driving, once Mr Lynch evaded the TRAP at speed it is quite likely that he would have
continued to speed away in disregard of the road rules, regardless of
whether a pursuit had been initiated. I reiterate that i t was his decision
to drive dangerously and the crash occurred as a direct consequence of
his decisions and actions.
Was Body Worn Video (BWV) used appropriately? Can the recording of
road incidents be improved?
87. The use of BWV by police is considered to be part of a pursuit
resolution strategy and police are required to activate their BWV when
engaging in a TRAP or pursuit.
88. It is heartening that almost all attending police activated their BWV.
Two police officers did not do so. The reason provided by one officer
was that he believed it had been turned on and the other could not recall
whether he had attempted to turn it on. Both said that their failure to
activate their BWV was not intentional. The BWV that was available
provided helpful evidence but the quality of the recordings varied, in
part depending on where the recording equipment was mounted on an
officer’s body.
89. To potentially overcome operator error and placement issues, Assistant
Commissioner Wurst advised that options for BWV (or similar) to be
mounted on police vehicles are under consideration by the Police Force,
including the possibility of automatic activation, for example, when
lights and sirens are initiated. The possibility of real time review of
BWV by, for example, the Watch Commander, is also under
consideration.
Member wellbeing
90. On viewing the BWV, on reading the police statements, and on hearing
from police members, it was readily apparent that the police members
are exposed to high levels of trauma, which inevitably affects them.
91. A number of officers involved in the pursuit were also engaged in
providing first aid and managing the scene over a considerable period
of time. While noting logistical difficulties, Assistant Commissioner
Wurst acknowledged the need to remove officers involved in a fatal
pursuit from the scene as quickly as possible to preserve their evidence
and to protect their welfare. I am assured that it is intended to include
guidance around this in future policies.
92. Since this incident, Assistant Commissioner Wurst advised that
Northern Territory Police have launched the Tri-Services Wellbeing
Strategy 2023-2027.[65] This strategy undertakes to strengthen supports
to all officers across all facets of the work with particular focus on
critical incidents.[66] The strategy makes provision for critical incident
debriefs, peer support programs, and psychological supports which are
designed to promote and support officer wellbeing and resilience
following traumatic work events. This is to be commended.
Conclusion
93. Tragically, Miss Thompson was killed when Mr Lynch evaded police,
sped away, proceeded through intersections against red lights and
crashed into an innocent civilian vehicle. It was his second instance of
seriously dangerous driving that night.
94. It was appropriate that the police responded to his earlier incident of
dangerous driving. They did so in good faith and with the intention of
intervening to prevent any loss of life or serious injury.
95. However, the inquest revealed that there were some failures to comply
with the police policies and guidelines, the more significant of these
arising from a lack of clarity concerning the definition of pursuit. If the
initial 16 seconds on Smith Street had been identified as a pursuit, there
could not have been any further engagement with the Astra except if
approved and overseen by an incident controller. Such oversight would
likely have assisted police to better co-ordinate their response and to
develop appropriate resolution strategies. In particular, the chance
meeting between the paddy wagon and the Astra might have been
avoided. Additionally, as the Trower Road TRAP and pursuit could not
have occurred without prior approval i t is possible that different
decisions might have been made that might have resulted in a different
outcome.
96. In his role as chair of the Road Safety Steering Committee, Assistant
Commissioner Wurst advised that a new Road Policing General Order
will be promulgated. The new General Order will update and
amalgamate existing policies and procedures. The Road Safety Steering
Committee is already considering whether additional oversight can be
offered by the Watch Commander or an incident controller when TDD
is requested or when a co-ordinated resolution strategy needs to be
developed. I am pleased that the Road Safety Committee will consider
incorporating any recommendations from this inquest in the new
General Order.
Recommendations
I recommend that the Commissioner of Police make it mandatory that
deaths arising from or connected to a police pursuit are investigated
in the same way as a death in custody is investigated.
I recommend that the Commissioner of Police amend the definitions
of pursuit and emergency vehicle driving to remove ambiguity and
overlap.
I recommend that the Commissioner of Police give consideration to
the circumstances in which it is appropriate to allocate an incident
controller (or a person exercising similar oversight) to assist police
members carrying out traffic duties, including, for example, when
TDD is requested, when police are engaging with a hostile vehicle, or
when there is a need for a co-ordinated resolution strategy; and to
make any amendment to the General Orders as is necessary to
implement any additional oversight.
100. I recommend that the Commissioner of Police ensure police members
are aware of their obligations to notify JESCC before conducting a
TRAP and of their obligations to activate their BWV when conducting
a TRAP or pursuit.
101. I recommend that the Commissioner of Police continue to explore
ways of improving the video capability of police vehicles, including
the feasibility of automatic activation.
Dated this 6 th day of December 2023.
_________________________
ELISABETH ARMITAGE TERRITORY CORONER
[1] The deceased’s family requested that she be referred to as M iss Thompson
[2] Folio 3, Police Radio Communications
[3] Folio 5.15
[4] Folio 7.9, CCTV
[5] T 106.
[6] Folio 7.9, CCTV
[7] T 107.
[8] Folio 3, Police Radio Communications
[9] Folio 3, Police Radio Communicat ions
[10] Death in Custody Presentation – Operation Grover, 04:45 – 05:15
[11] Folio 2.1, Major Crash Investigation Unit, Crash Analysis Report dated 16 May 2021
[12] Criminal Code s 174 FB
[13] Criminal Code s 160
[14] Criminal Code s174C and 174G(a)
[15] R v Peter Lynch SCC 22115329, Southwood J, 15 November 2022
[16] Coroner’s Act 1993 s 12
[17] General Order Op-C14, promulgated 4 December 2014, last updated 8 September 2016
[18] General Order Op-C1, Deaths in Custody and investigation of serious and/or fatal inci dents
resulting from police contact with the public, promulgated 10 November 2011, last updated 8
September 2016
[19] Promulgated 22 November 2022
[20] General Order, Crime (Homicide and Serious) Investigation , 22/11/22 p 15
[21] Supplementary Affidavit , Assistant Commissioner Travis Wurst, 29 May 2023
[22] General Order – Emergency Vehicle Driving (EVD) & Pursuit Driving , 23 February 2017
updated 6 June 2019, [13.21]
[23] Folio 5.2 p 13
[24] Coronial Inquest –Thompson – Organisational Review, [19] extracting College Document,
Traffic Apprehension Facilitators Guide p 16
[25] Applying part of the definition of pursuit in General Order – Emergency Vehicle Driving
(EVD) & Pursuit Driving , 23 February 2017 updated 6 June 2019, [13.15]
[26] Applying part of the General Order – Emergency Vehicle Driving (EVD) & Pursuit Driving ,
23 February 2017 updated 6 June 2019, [30.2]
[27] Death in Custody Presentation – Operation Grover, 02:00-2:05.
[28] Affidavit, Assistant Commissioner Travis Wurst, 2 May 2023 , [92]
[29] T 142
[30] T 135
[31] [2021] NTLC 010, [36]
[32] T 141
[33] T 70
[34] Coronial Inquest –Thompson – Organisational Review, [28]
[35] Affidavit, Assistant Commissioner Travis Wurst, 2 May 2023, [44].
[36] T 142
[37] General Order, Emergency Vehicle Driving (EVD) & Pursuit Driving , 23 February 2017
updated 6 June 2019,at [35] and [38]
[38] General Order, Emergency Vehicle Driving (EVD) & Pursuit Driving, 23 February 2017
updated 6 June 2019, [61-62]
[39] T pp131-133
[40] T 126
[41] Folio 3, Radio Transmission Synopsis
[42] T 133
[43] T 108, 113
[44] Folio 3.1, Radio Transmission Synopsis
[45] Folio 3.1, Radio Transmission Synopsis , TDDs first mentioned at 2.19.52 am
[46] Coronial Inquest –Thompson – Organisational Review, p 10
[47] T 127. 48 T 115
[49] T 135
[50] Affidavit, Assistant Commissioner Travis Wurst, 2 May 2023, [123]
[51] T 112
[52] T 111
[53] Coronial Inquest –Thompson – Organisational Review, [19]
[54] T 111.
[55] Folio 5.11 pp 3, 10, and annexed notebook entry “saw 3 police vehicles try box silver Holden
Astra”; Folio 5.12 and annexed notebook entry “observed two police sedan and dog unit
blocking in offenders vehicle”
[56] Recorded Statement, Superintendent Sandi Lee Mellon , 20 May 2021, p 18; see also Recorded
Statement, Superintendent Shean, 16 May 2021, p 21
[57] T 111
[58] T 83
[59] Affidavit, Assistant Commissioner Travis Wurst, 29 May 23, Annexure 3
[60] General Order, Emergency Vehicle Driving (EVD) & Pursuit Driving , 23 February 2017
updated 6 June 2019, [23-24]
[61] Coronial Inquest - Thompson- Organisational Review, [29]
[62] Affidavit, Assistant Commissioner Travis Wurst, 29 May 23, [135]
[63] T 85
[64] General Order, Emergency Vehicle Driving (EVD) & Pursuit Driving , 23 February 2017
updated 6 June 2019, [60]
[65] Exhibit 3.
[66] Affidavit, Assistant Commissioner Travis Wurst, 2 May 2023, at [291].
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