Inquest into the death of Andrew Ngo

CORONERS COURT OF NEW SOUTH WALES Inquest: Inquest into the death of Andrew Ngo Hearing dates: 25 – 29 November 2019; 13 December 2019.

Date of findings: 28 January 2020 Place of findings: NSW Coroners Court - Lidcombe Findings of: Magistrate Elizabeth Ryan, Deputy State Coroner Catchwords: CORONIAL LAW – death following police pursuit – whether involved police officers complied with applicable policies – whether police pursuit caused or contributed to Andrew Ngo’s death - recommendations.

File number: 2017/373943 Findings in the Inquest into the death of Andrew Ngo

Representation: Counsel Assisting the Inquest: J Hopper of Counsel i/b NSW Crown Solicitor’s Office.

Counsel Assisting the Inquest, in relation to the NSW Commissioner of Police’s application for protective orders: K Edwards of Counsel i/b NSW Crown Solicitor’s Office.

The NSW Police Force and NSW Commissioner of Police: K Burke of Counsel i/b Office of General Counsel, NSW Police.

The NSW Commissioner of Police, in relation to application for protective orders: R Coffey of Counsel i/b NSW Crown Solicitor’s Office.

The Tran family: M Ayache, One Group Legal.

NSW Police Officers B Thurling, N Crawford, S Andrews, M Falconer and M Keating: P Madden of Counsel i/b Walter Madden Jenkins.

Chief Inspector P Brooks, Sergeant M Down, NSW Police Officers J Denney, C Hannon, A Rice, J McNally, L Myers, D Roden, M Bombell, C Gilbey, D Potter: B Haverfield of Counsel i/b Walter Madden Jenkins.

Snr Sergeant C Palombo: R Hood of Counsel i/b Greg Willis Criminal Defence Lawyers.

Findings in the Inquest into the death of Andrew Ngo

Non-Publication Orders pursuant to section 74 of the Coroners Act 2009 Orders made pursuant to section 65 of the Coroners Act 2009 On 27 September 2019 and on 27 November 2019 the Court made orders pursuant to sections 74 and 65 of the Coroners Act 2009, prohibiting publication and access to certain evidence in this inquest. On 29 November 2019 the Court made orders pursuant to section 65 prohibiting access to further evidence.

All the above orders are located on the Registry file.

Findings in the Inquest into the death of Andrew Ngo

Section 81(1) of the Coroners Act 2009 (NSW) [the Act] requires that when an inquest is held, the Coroner must record in writing his or her findings as to the date and place of the death, and its cause and manner.

These are the findings of an inquest into the death of Andrew Ngo.

Introduction

1. Andrew Ngo was 35 years old when he died at Nepean Hospital on the night of 9 December 2017. He had been taken there by ambulance after the car he was driving collided with a tree near Lapstone, at the foot of the Blue Mountains. Mr Ngo suffered unsurvivable injuries and he died shortly afterwards.

2. Just prior to the fatal collision a police pursuit was underway to arrest Andrew Ngo, after he had failed to stop following a direction to do so at a Random Breath Testing site. A number of police cars were involved in the pursuit.

3. This is a mandatory inquest pursuant to sections 23(1)(c) and 27(1)(b) of the Act. An inquest is mandated when it appears, or there is reasonable cause to suspect, that a person has died ‘as the result of police operations’. The purpose is to ensure there is an independent and transparent investigation of the circumstances of the death, and the conduct of any involved police officers.

Andrew Tran’s life

4. In March 2008 Andrew Ngo registered a change of name to Andrew Ngo from his birth name of Giang Dinh Tran. However his mother and sister requested that during the inquest he be referred to as Andrew Tran. Although I refer to him as Andrew Ngo in the formal findings as to date, place, cause and manner of death, I will call him Andrew Tran in the body of these findings.

5. Andrew Tran was born in Hong Kong on 8 November 1982. His mother Thi Lan Tran had migrated there from Vietnam on a refugee visa with her daughter Thi Lien Vu, who now uses her married name of Lien Issa. In 1984 Ms Tran left with her two children to live in Sydney. The family lived in Marrickville and then in Bossley Park.

6. Mr Tran left school in Year 11 and began to spend a lot of his time with friends.

It was around this time that his sister Ms Issa started to suspect he was using illicit drugs. According to his friends, Mr Tran used drugs on a daily basis including Xanax, heroin and methylamphetamine. During his twenties and thirties he had periods of time in jail for offences of drug use, burglary and disqualified driving. In 2010 while driving under the influence of methylamphetamine he crashed his car, as a result of which his passenger died. He was convicted and sentenced for dangerous driving causing death.

Findings in the Inquest into the death of Andrew Ngo

7. In July 2017 while on parole, Mr Tran discussed with his sister the idea of going to rehabilitation, telling her that he was afraid of going back to prison. He had previously made attempts to remain on the methadone program. Ms Issa very much wanted to help her brother overcome his addiction problems. She commenced arrangements for him to enter a rehabilitation facility in Perth.

Unfortunately this didn’t happen, and in October 2017 Mr Tran was charged with fresh offences of disqualified driving and engaging in a police pursuit.

Police had been unable to serve him with Court Attendance Notices, so warrants for his arrest were current at the time of his death.

8. Mr Tran’s mother Thi Lan Tran was emotionally unable to attend the inquest, but his sister Lien and her husband attended each day. At the close of the evidence, at Ms Issa’s request Mr Ayache read to the court a loving tribute to Andrew which she had prepared on behalf of her family. She wrote of a caring brother and son, and of how she and her mother wanted to help him overcome his addictions but did not know how. It was clear that despite his struggles Andrew Tran was much loved by his family, and they grieve his loss deeply.

The issues examined at the inquest

9. The first four issues examined at the inquest concern the conduct of the involved police officers, and whether it complied with the provisions of the NSW Police Force’s Safe Driving Policy [the SDP]. The applicable version of the SDP at the time of Mr Tran’s death had come into force in December 2017.

It has since received minor revisions, none of which are relevant to the issues of this inquest. I will cite only those provisions which bear directly upon these issues.

10. The issues examined at the inquest were:

• Was there a proper basis to commence the pursuit?

• Should the pursuit have been terminated at an earlier stage?

• Did officers comply with the road spikes requirements of the SDP?

• Did officers comply with the ‘Urgent Duty’ requirements of the SDP?

• Did the pursuit cause or contribute to Mr Tran’s death?

11. The conduct of the pursuit was reviewed by Senior Sergeant Jennifer McWhinnie, who is appointed to perform this task within the Traffic and Highway Patrol Command Traffic Policy Unit. She provided a report and gave evidence at the inquest. Her report identified breaches of the SDP by a number of the involved officers.

12. As will be seen, in these findings I reach the conclusion that the evidence supports many of Senior Sgt McWhinnie’s conclusions. I wish to acknowledge however that some police officers whose conduct breached pursuit policies were the first to arrive at the fatal crash site, and immediately commenced first aid in an attempt to save Mr Tran’s life. Other police officers involved themselves in emergency traffic duties, ensuring that no other road users came to harm in the hours following the crash. I believe that in the inquest into the circumstances of Mr Tran’s death, this capable and conscientious work on their part deserves to be acknowledged.

Findings in the Inquest into the death of Andrew Ngo

The cause of Mr Tran’s death

13. The cause of Mr Tran’s death is clear on the evidence. The autopsy report of forensic pathologist Dr Istvan Szentmariay found he had died as a result of multiple injuries, with a significant contributing condition of multidrug toxicity.

Mr Tran had suffered fractures to his skull, ribs, sacrum and pelvis. He had also suffered haemorrhages to the brain and acutely compressed abdominal organs.

14. Testing of Mr Tran’s blood samples showed the presence of methylamphetamine, morphine and alprazolam. The test results were examined by Dr Judith Perl, toxicologist. She provided an expert opinion that the level of methylamphetamine in Mr Tran’s blood was very high. It was very likely to have had significant impairing effects upon his psychomotor functioning, driving skills and decision-making, creating an increased risk of having a collision. In Dr Perl’s opinion his ingestion of morphine, which had been recent, was likely to have contributed to the impairment.

The Random Breath Test operation

15. On the nights of 8 and 9 December 2017 NSW Police were conducting a Random Breath Testing [RBT] operation along the westbound length of the M4 motorway, commencing at Parramatta. A number of stationary RBT sites had been set up. One of these was located near Lapstone at the foot of the Blue Mountains, where the M4 motorway is known as the Great Western Highway.

16. The M4 motorway and Great Western Highway is a divided dual carriageway with three lanes westbound. Near Lapstone the three westbound lanes merge to two lanes and there is a marked turning lane allowing vehicles to exit from the Highway into Governors Drive, Lapstone [‘the Governors Drive exit’]. It was at this RBT site on the turning lane that the police pursuit commenced.

The lead up to the police pursuit

17. Mr Tran had spent the afternoon of 9 December at the house of a friend, Mr Raymond Reynolds. At Mr Tran’s request, Mr Reynolds drove him to Merrylands at about 8pm. Mr Reynolds presumed this was because of Mr Tran’s unlicenced status. Soon afterwards Mr Tran drove off unaccompanied in a black Mitsubishi Sedan. This car was registered in the name of his mother.

18. Mr Tran rang another friend to tell her he was driving to meet someone in Penrith. Then at about 9.30pm Mr Tran told Mr Reynolds by phone that he was now on the M4 and there were police at every exit. Mr Reynolds encouraged Mr Tran to pull over, leave the car and walk, but Mr Tran replied he would ‘rather pull a chase than walk’.

Findings in the Inquest into the death of Andrew Ngo

19. Soon afterwards another friend Mr Matthew Kovacik received a call from Mr Tran. According to Mr Kovacik, Mr Tran sounded panicked and told him police had blocked all the exits on the M4.

20. Shortly after 10pm Mr Tran was signaled by an RBT stopping officer to pull over for a random breath test at the Governors Drive exit site. Mr Tran did not pull over, but continued driving at an estimated speed of 10 -15 kph. Senior Constable Barry Thurling then stepped forward and gave a second signal to him to pull over, at which point Mr Tran accelerated and drove away into Governors Drive at an estimated speed of 70kph. This road leads into streets within a residential area of Lapstone.

21. It was around this time that Mr Kovacik received another phone call from Mr Tran. According to Mr Kovacik, Mr Tran said ‘I’m gone, I’m gone, there’s no way off’. Like Mr Reynolds, Mr Kovacik encouraged Mr Tran to pull over but he replied: ‘No, I can’t, I can’t … I’ve turned off. I’m on the back streets, I can’t talk, there’s police’. There were no further calls from Mr Tran.

22. SC Thurling got into his Highway Patrol car and commenced pursuit of Mr Tran. The time was 10.13pm. The ensuing pursuit took place for a period of six minutes, through suburban streets in Lapstone.

23. The course of the pursuit is further described below, but briefly it can be said that just after it was terminated at 10.19pm Mr Tran was once again back on the Great Western Highway, this time driving eastward in its westbound lanes.

He had used the same Governors Drive exit to enter the Highway, despite this being a one-way road for traffic to exit the Highway.

24. On the Great Western Highway Mr Tran drove at speed for some 1.5kms before losing control of his car. It mounted the median strip and collided heavily with a tree. The impact was severe and caused his car to be broken into two parts. Mr Tran’s injuries were fatal. He received first aid at the site from police officers and from an off duty nurse who had pulled over to assist.

An ambulance arrived very shortly afterwards, but Mr Tran died soon after arrival at hospital. Police later found a small quantity of methylamphetamine in plastic bags inside his car.

25. A number of police officers were involved in the pursuit of Mr Tran’s car. To assist in understanding the course of the pursuit I list their names below, with the call signs of their cars: NWM 246 SC Barry Thurling NWM 248 SC Natasha Crawford and Sgt Mark Falconer NWM 247 SC Mary Louise Keating and SC Scott Andrews NWM 203 Senior Sgt Chris Palombo and SC Douglas Roden NWM 245 Sgt Joshua Denny NWM 249 SC Michael Bombell NWM 294 SC David Potter and SC Christopher Gilbey Penrith 175 SC Kevin Hannon and SC Alison Rice Penrith 36 SC Joshua McNally and Constable Lisa Myers Penrith 37 SC James Cager and SC Andrew Locke.

Findings in the Inquest into the death of Andrew Ngo

26. That night the VKG police radio supervisor was Sergeant Brett Kleyn. He had been an accredited pursuit manager since 2007, and was stationed at Penrith Police Station. From his location in the radio room he was able to monitor the radio despatches of the pursuit, and to communicate instructions via the VKG radio despatcher, Steven Carter.

27. The Duty Operations Inspector role for the Blue Mountains region that night was Acting Inspector Michael Down. He was stationed at Blue Mountains Police Station, and monitored the pursuit using his own police radio.

28. None of the RBT police knew Mr Tran’s identity as a driver who was the subject of outstanding warrants, and his selection for a breath test was entirely random. Nor during the pursuit were any of the involved police officers aware of the warrants, or of Mr Tran’s status as a disqualified driver. It was clear from their evidence at inquest that their pursuit was based on his failure to pull over at the RBT site.

The course of the pursuit

29. At 10.13pm SC Thurling activated the lights and sirens on his car and broadcast to VKG radio that he was in pursuit. In accordance with the NSW Police Force’s Safe Driving Policy [the SDP], this signified the commencement of the pursuit. SC Thurling was the sole occupant of his police car.

30. The VKG despatcher responded by broadcasting that car NWM 246 was in pursuit. He directed that ‘all cars stand by unless urgent’. Car NWM 247 responded, notifying it was ‘about three minutes away’. Over the next few minutes the following happened:

• Mr Tran continued to drive, making circuits of the suburban streets surrounding Governors Drive

• the VKG despatcher indicated on a number of occasions he wanted the radio airway kept clear for NWM 246’s update reports

• NWM 248 joined the pursuit, mistakenly broadcasting its car call sign as ‘245’.

It requested and received Sgt Kleyn’s permission to deploy road spikes

• NWM 248 made two attempts to use the road spikes. On the first occasion the spikes were thrown out and merely contacted the headlights of Mr Tran’s oncoming car. On the second occasion, Mr Tran avoided the spikes by driving his car partly onto the footpath

• NWM 245 made the third attempt to deploy road spikes but Mr Tran again avoided them.

31. Mr Tran was by now driving back along Governors Drive in the direction of the Great Western Highway, still with NWM 246 in pursuit. Travelling at speed, Mr Tran suddenly veered his car to the right, driving onto the exit ramp which came up from the Great Western Highway. Seeing Mr Tran enter the exit ramp SC Thurling applied his own brakes, but his car collided with the concrete median strip and caught alight. He broadcast to VKG that he had ‘destroyed the car’.

Findings in the Inquest into the death of Andrew Ngo

The question of recommendations

83. At the close of evidence submissions were made on behalf of Mr Tran’s family, proposing that a number of recommendations be made. I will deal with each in turn.

Proposal 1

84. The first proposal was that NSW Police Force vehicles which are authorised to conduct pursuits be equipped with:

• cameras feeding ‘real time’ audio and visual footage to VKG Supervisors and/or Communications Operators, to assist them in monitoring and supervising pursuit and ‘urgent duty’ driving.

• GPS and data tracking equipment enabling VKG Supervisors and/or Communications Operators to monitor the location and speed of police cars involved in pursuit and ‘urgent duty’ driving.

85. The clear intent of these proposals is to better assist those who are supervising pursuit and ‘urgent duty’ driving to assess the conditions of the pursuit. The evidence at inquest revealed practical deficiencies in the current system which relies upon VKG radio broadcasts from the individual officers involved.

86. In response it was submitted on behalf of the NSW Commissioner that the proposals would not be opposed, on the basis that the recommendation be that the Commissioner consider it.

87. At the inquest both Sgt Kleyn and Senior Sgt McWhinnie were asked whether in their opinion the above proposals would be useful, in the interests of enhancing the supervisor’s understanding of the pursuit as it unfolded. Sgt Kleyn acknowledged there was room for improvement on the present system.

However he expressed doubt as to how as a practical matter, multiple and simultaneous sources of audio coming from the police cars might be managed.

Senior Sgt McWhinnie was unsure whether the proposals would help or hinder the VKG supervisor.

88. In my view the proposal that ‘real time’ speed tracking devices be introduced has merit, in particular as under the current system an objective source of this information only becomes available after the pursuit, with the availability of the ICV footage. However I am mindful of the requirement that recommendations made in an inquest be ‘necessary or desirable’. This requires evidence that the proposed measure is directed at remedying an identified problem, and that it will be effective in doing so. This evidence was not available at the inquest, nor any evidence as to the logistical factors which would be involved. (This is not a criticism of those appearing at the inquest.) For these reasons, while I think the proposal for speed tracking devices has potential, I do not think it would be appropriate to recommend it in this inquest.

Findings in the Inquest into the death of Andrew Ngo

there are differences in the geographical features and criminal activity profiles of the ACT and of NSW which might require a different law enforcement approach. Relevant also would be evidence as to the efficacy as a law enforcement measure of the existing arrangements for police pursuits in NSW, taking into account the extent to which they achieve crime prevention and detection objectives, the resources needed to conduct them, and the safety risks for police and community. It is also evident that opinions differ as to where the balance lies in weighing the public interests in community safety and law enforcement.

96. I am aware that a review of the SDP is currently underway. This provides an opportunity to consider whether the more prescriptive and restrictive approach to pursuits adopted in the AFP Guideline would be of benefit to law enforcement in NSW. For this reason I will make the recommendation that the Commissioner consider doing so.

97. In submissions on behalf of the Commissioner, Ms Burke stated that the Commissioner would not oppose the above proposals, provided they were made as recommendations that the Commissioner consider them.

Proposal 3

98. The terms of the third proposal are unclear to me. In written submissions on behalf of the family Mr Ayache proposed that Clause 16(1)(a) of Schedule 3 to the Road Transport Act 2013 be amended to impose the same penalties as an offence against clause 16(1)(b). The former is the offence of failing to submit to a breath test, and carries a fine by way of penalty. The latter is the offence of failing to submit to a breath analysis, and carries the penalty of a fine and/or imprisonment, and a period of licence disqualification. Mr Ayache’s submission was that a Clause 13(1)(a) offence should have a higher penalty in the interests of deterrence.

99. However the offence which initiated the pursuit of Mr Tran was one of disobeying a requirement to stop for a breath test. This is an offence pursuant to Clause 3(4) of Schedule 3. Like the Clause 16(1)(a) offence, it carries only a fine for a first offence.

100. Given the lack of clarity as to what is being proposed, I do not propose to make the recommendation.

Conclusion

101. On behalf of everyone at the Coroner’s Court, I offer sincere sympathy to Mr Tran’s mother and sister for the loss of their son and brother.

102. I express my appreciation to Counsel Assisting Ms Justine Hopper and to the Crown Solicitor’s Office for their excellent assistance throughout the inquest. I also thank the legal representatives of the many interested parties in this case.

My thanks also to the Officer in Charge Detective Sergeant Inspector Brad Element for compiling a most comprehensive brief of evidence.

Findings in the Inquest into the death of Andrew Ngo