Inquest into the death of Tammy Michelle Shipley

CORONERS COURT OF NEW SOUTH WALES Inquest: Inquest into the death of Tammy Michelle Shipley Hearing date: 17 October 2024 Date of decision: 16 January 2025 Place of decision: Coroners Court of NSW, Lidcombe Decision of: State Coroner, Magistrate Teresa O’Sullivan Catchwords: CORONIAL LAW – interlocutory application - jurisdiction – sufficient interest - issues lists -– interim hearing – scope – recommendations File number: 2022/384929 Representation: 1) Counsel assisting on the application: Dr Peggy Dwyer SC, instructed by Ms Yvette Edgell of the NSW Crown Solicitor’s Office

2. Commissioner of Police, NSW Police Force: Mr Adam Casselden SC and Mr Matthew Harker of Counsel instructed by Mr Craig Norman of the Office of the General Counsel, NSW Police Force

3. Ms Vicki Shipley: Mr Steven Rees instructed by Ms Jacklyn Dougan-Jones of the Aboriginal Legal Service

4. Corrective Services NSW: Mr Phillip Nixon of DCJ Legal

5. Justice Health and Forensic Mental Health Network and South West Sydney Local Health District: Mr Jake Harris of Counsel instructed by Ms Kate Hinchcliffe of Makinson d’Apice Lawyers

6. Dr Lloyd Buan: Mr Matthew Hutchings of Counsel instructed by Ms Judith Alderson of Avant Law

Introduction

1. Tammy Michelle Shipley, a 47 year old Aboriginal woman, passed away on 20 December 2022 in the Mum Shirl Unit (“MSU”) at Silverwater Women’s Correctional Centre (“SWCC”). According to an autopsy report of Dr Lena Quinto, Ms Shipley died from hyponatraemia arising from primary polydipsia and complications of schizoaffective disorder and its treatment.1

2. As Ms Shipley died while an inmate in a correctional centre, an inquest into her death was mandatory pursuant to ss. 23(1)(a), 23(1)(d)(ii) and 27(1)(b) of the Coroners Act 2009 (NSW) (“the Act”). The inquest into Ms Shipley’s death (“the Inquest”) was listed to be heard from 16 to 27 September 2024.

3. On 3 September 2024, the Commissioner of Police, NSW Police Force (“the Commissioner”) forwarded an application (“the Application”) to the Crown Solicitor’s Office (“CSO”) asserting that any examination or exploration by me and/or Counsel Assisting into the appropriateness or otherwise of the NSW Police Force’s interactions with Ms Shipley was impermissible as it lacked jurisdictional power.2

4. The Application (outlined further below) sought to challenge my exercise of jurisdiction to enquire into the actions and/or inactions of the NSW Police Force (“NSWPF”) in relation to their interactions with Ms Shipley in December 2022.3 It sought; a. that a letter advising the Commissioner of her sufficient interest in this matter be withdrawn on the basis of a lack of jurisdictional power; and/or b. certain issues said to be “emerging” numbered 1, 2 and 3 on a draft issues list be removed on the basis of a lack of jurisdictional power; and/or c. the request for NSWPF policies that I deemed might be relevant, be withdrawn on the basis that it lacks a legitimate forensic purpose and/or the State Coroner or Counsel Assisting lacks jurisdictional power to consider the nominated areas; and 1 CAWS2 at [43]; Tab 7: Autopsy Report p 2.

2 Shipley Inquest - Application to State Coroner p 1.

3 Transcript 17/10/24 p 746 ln 7-9.

d. that a request for a statement from a senior NSWPF officer addressing areas I consider may be relevant to my inquest be withdrawn on the basis that the request for it was “impermissible as it lacks jurisdictional power and a legitimate forensic purpose”.4

5. The matter was mentioned on 12 September 2024. At that mention a regime was proposed to allow the Inquest hearing to continue and to defer hearing of the Application. A timetable for exchange of written submissions was set and the Application was fixed for hearing on 27 September 2024.

6. The Inquest proceeded from 16 to 27 September 2024. The brief of evidence was tendered in the proceedings without objection.5

7. On 27 September 2024, the Commissioner’s representatives requested the Application be adjourned to a future date and, after eight days of hearing, the Inquest was adjourned part-heard to 6 and 7 February 2025.

8. The Application was ultimately heard on 17 October 2024.

9. The Application is dismissed. Below I set out the relevant background to Ms Shipley’s death, the background to the Application and reasons for my decision.

Factual and Procedural Background Ms Shipley’s criminal history and interactions with NSW Police Force

10. The following facts in relation to Ms Shipley are taken from Counsel Assisting’s written submissions and material within the brief of evidence. The majority of the facts asserted in relation to the Application were not challenged by the Commissioner either during the hearing of the Application or after. Where any challenge to asserted facts has been raised, those facts have not been included.

a. Ms Shipley was an Aboriginal woman born in 1975 and aged 47 years at the time of her death in Corrective Services NSW (“CSNSW”) custody.6 Ms Shipley had an extensive history of mental health problems 4 Shipley Inquest - Application to State Coroner p 1.

5 Transcript 16/09/24 p 22 ln 45.

6 Counsel Assisting Written Submissions dated 25 September 2024 (“CAWS”) at [6].

and she was frequently admitted to hospitals and treated by community mental health services as a result.7 b. Ms Shipley first came to the attention of the NSWPF in September 1992 in relation to stealing and break and enter offences. Over the years she was charged with domestic related common assault, drug and shoplifting offences.8 c. Several of Ms Shipley’s offences were dealt with under Mental Health legislation9 which enabled a magistrate to divert matters away from the criminal justice system where a person was more appropriately dealt with in a mental health facility.10 d. In 2016, Ms Shipley spent four months in custody for an offence of stalk/intimidate. During that time, her diagnoses of Schizoaffective Disorder and Bipolar Affective Disorder, along with a history of cannabis, “Ice” and heroin use, was noted by the Justice Health and Forensic Mental Health Network (“JHFMHN”).11 e. As a victim, Ms Shipley regularly came to the attention of the NSWPF over a period of approximately 25 years to April 2022, due to domestic violence she suffered at the hands of a former partner.12

11. Between January and November 2022, Ms Shipley came to the attention of NSWPF officers on four occasions: a. On 13 January 2022, Ms Shipley was detained by police under s. 22 of the Mental Health Act 2007 (“MHA”) and transported to Campbelltown Hospital Emergency Department where she was found to be “a mentally ill person”.13 b. On 5 October 2022, Ms Shipley was charged with shoplifting and served with a Future Court Attendance notice. The matter was finalised in Court on 21 November 2022.14 7 CAWS at [12]-[13].

8 CAWS at [8]-[9].

9 Section 32 of the Mental Health (Forensic Provisions) Act 1990 (as it then was) (MHFPA).

10 CAWS at [10]-[11].

11 CAWS at [14].

12 CAWS at [7].

13 CAWS at [15].

14 CAWS at [18].

c. On 22 October 2022, police attended on Ms Shipley after an altercation with her neighbours.15 Ms Shipley was assessed by a PACER16 team and ultimately referred to the Campbelltown Community Mental Health Emergency Team.17 d. On 26 November 2022, Ms Shipley presented to Macquarie Fields Police Station suffering hallucinations. She was voluntarily transported by police to Campbelltown Hospital Emergency Department.18

12. On 9 December 2022: a. Sometime in the morning, Ms Shipley attended Macquarie Fields Police Station and asked to be arrested as she claimed she had goods in custody.19 b. At around 11:00am, Ms Shipley was arrested for enter inclosed lands and shoplifting offences at Target Glenquarie Centre. The goods stolen totalled $574 (“H76115633 offences”). She was released with bail conditions “not to enter Glenquarie Shopping Centre”. The Facts Sheet for the charges stated: “Police not aware of any drug or mental health issues of the accused”.20 c. In the afternoon, Ms Shipley re-attended Glenquarie Shopping Centre.

She entered Woolworths and was again arrested for enter inclosed lands and shoplifting, as well as breach of bail on the offending from earlier that day. This time the goods stolen totalled $23.10 (“H91715522 offences”).21 At the time of her arrest, when asked by NSWPF officers if she wanted to go to gaol Ms Shipley replied, “that would be nice” and indicated to the arresting officers that she was going through a “detox”.22 d. At 7:00pm, Ms Shipley was refused bail by an officer of the NSWPF23 and admitted into custody at Campbelltown Police Station. The custody management record (which was later sent by NSW Police to CSNSW 15 Tab 41B: COPS Event E91708662 p 1.

16 Police, Ambulance, Clinical, Early, Response.

17 CAWS at [19].

18 CAWS at [20].

19 Tab 43A: Statement of PCSC Bryan Villacres at [7]; Tab 44 - BWV Woolworths Glenquarie at timestamp 17:55:38.

20 CAWS at [22]; Tab 42: Offence Details – H76115633.

21 Tab 43: Offence Details – H91715522.

22 CAWS at [23]-[26].

23 Tab 74: Reason for Bail Decision by Police Officer p 1.

and formed part of their records) indicates she did not have a mental illness, was not on medication and had no medical issues.24 e. On 10 December 2022 at around 1:00am,25 after approximately six hours in NSWPF custody, Ms Shipley was transferred to Amber Laurel Correctional Centre (“ALCC”).26 On the same day, she appeared before Parramatta Local Court. A transcript of the audio recording of those proceedings has been tendered in evidence27 and the aide memoire prepared for me (not challenged by any party) is Annexure A to this decision. It reveals that Ms Shipley told the Magistrate that she was representing herself and initially indicated that she was applying for bail.

When the Magistrate indicated to the Sergeant appearing that she would “read the facts and records” and the Sergeant stated that they would “hand those up”, Ms Shipley said: “Yeah no I don’t want bail”. Ms Shipley appeared in Court for a little over one minute and the learned Magistrate concluded by stating that: “In relation to the detention application I’ll simply mark it not challenged”.

13. It is apparent from the transcript that on 10 December 2022, there was no reference to Ms Shipley’s mental health history by the Court or prosecutor. The matter was stood over to Campbelltown on Monday 11 December 2022.28

14. On 11 December 2022, Ms Shipley was transferred to Silverwater Women’s Correctional Centre (SWCC). That same day, she attempted to take her own life on two occasions and displayed symptoms of psychosis.29 Ms Shipley did not attend Court on that date.

15. On 12 December 2022, she was deemed by JHFMHN staff to be too mentally unwell to attend Court and a medical certificate for “non-attendance at Court” was provided to the Court by JHFMHN.30 24 CAWS at [27].

25 Tab 76: New Inmate Lodgement & Special Instruction Sheet p 1.

26 CAWS at [28].

27 Exhibit 9: Parramatta Local Court - 10 December 2022 - Unofficial Transcript.

28 Exhibit 9: Shipley – Parramatta Local Court - 10 December 2022 - Unofficial Transcript.

29 CAWS at [31]; CAWS2 at [29].

30 Shipley – Campbelltown LC 141222 p 31; CAWS2 at [30].

16. On 13 December 2022, a remand warrant was issued for Ms Shipley to attend Campbelltown Local Court the following day in relation to the H91715522 offences.31

17. The last date Ms Shipley appeared in any Court was 14 December 2022 and again a transcript of the audio recording of that appearance was prepared for me and circulated to the parties32, and the aide memoire is attached to this decision at Annexure B. On that date: a. Ms Shipley appeared before Campbelltown Local Court via audio-visual-link (“AVL”). She was again unrepresented and entered a plea of guilty for the H91715522 offences.33 b. The NSWPF Facts Sheet for the H91715522 offences located on the Court file did not refer to Ms Shipley’s mental health or drug use history.34 c. The learned Magistrate fined Ms Shipley $100 for the enter inclosed lands offence and sentenced her to a Conditional Release Order for the shoplifting offence.35 d. The H76115633 offences were not dealt with. The NSWPF Criminal History Bail Report printed at 8:37pm on 9 December 2022 and located on the Court file in relation to the H76115633 offences stated:

“POLICE BAIL: BAIL CONDITIONAL PLACE RESTRICTION NOT TO ENTER THE GLENQUARIE SHOPPING CENTRE” …; and

“NO BREACH BAIL ALTERNATIVES FOUND FOR CNI” 36 e. The Magistrate advised Ms Shipley she would need to return to Court in relation to the H76115633 offences in January 2023 and stated: 31 CAWS at [36]; CAWS2 at [31].

32 Campbelltown Local Court - 14 December 2022 - Unofficial Transcript.

33 Campbelltown Local Court - 14 December 2022 - Unofficial Transcript.

34 CAWS at [37]-[38]; Shipley – Campbelltown LC 141222, pp 14-16.

35 CAWS2 at [33].

36 Shipley – Campbelltown LC 141222 pp 26 and 28; CAWS2 at [35]; CAWS3 at [14].

“…as far as I’m concerned, that should mean you’ll be released”.37 f. After her appearance, Ms Shipley reported to CSNSW staff at SWCC that she “got bail” and would be going home. However, Ms Shipley was not released from custody as CSNSW Sentence Administration advised there were other charges pending to be heard in 2023 and she did not have bail on those.38

18. It is clear that in fact, contrary to the information on the NSWPF Criminal History Bail Report printed at 8:37pm on 9 December 2022 and located on the Court file, as at 14 December Ms Shipley did not have bail on the charge numbered

H76115633.

19. On 20 December 2022, 11 days after Ms Shipley was arrested by NSWPF officers and entered custody, she died in the MSU at SWCC, ostensibly from complications arising from her mental illness.39

20. On 12 January 2023, Ms Shipley was convicted of the H76115633 offences and fined a total of $1,000,40 23 days after her death.

Application by Commissioner of Police

21. On 23 July 2024, the CSO wrote to the Commissioner’s legal representatives, the Office of the General Counsel, NSWPF (“OGC”), notifying them the Commissioner may have a sufficient interest in the subject matter of the Inquest and that, as it was possible she may be the subject of criticism or adverse comments or impacted by proposed recommendations, she may wish to obtain legal advice and to seek leave pursuant to s. 57 of the Act to be represented at the Inquest.41 That letter included a request for any NSWPF policies that concern the following:

• Entry into custody and/or custody management procedures;

• engagement with persons who have a mental illness;

• use of PACER teams; and 37 Campbelltown Local Court - 14 December 2022 - Unofficial Transcript; CAWS2 at [34].

38 CAWS at [39]-[40].

39 CAWS2 at [43].

40 Tab 39: Criminal history – Bail report – Tammy SHIPLEY pp 10-11.

41 Letter to NSWPF - Sufficient Interest.

• engagement with persons withdrawing from illicit substances.

22. Noting “the ‘Issues list’ for the inquest [was] still being finalised”, the letter also included a request for a statement from a senior officer within the NSWPF (institutional witness) addressing the following three issues:

23. On the date of [Ms Shipley]’s arrest, were NSW Police aware of her mental health history, and could they have arranged an assessment of [Ms Shipley]’s mental health, pursuant to s 22 of the Mental Health Act 2007, or through use of a PACER (Police, Ambulance, Clinical, Early, Response) team?

24. Should there be more options for NSW Police when dealing with a person like [Ms Shipley] who is suspected of criminal offending that is likely to be caused by a mental illness or disorder?

25. What is the obligation (if any) on NSW Police to contact a support person for a suspect who appears mentally ill or disordered, and were relevant guidelines followed in this case? Should guidelines to cover this situation be drawn or amended?

26. On 8 August 2024, the OGC wrote to the CSO asserting, inter alia: “The Commissioner notes that a coroner does not have general powers of inquiry in relation to the death of Ms Shipley. The Coroners Act 2009 (NSW) does not authorise a coroner to undertake an inquiry into any possible causal connection, no matter how tenuous, between any act, omission, or circumstance on the one hand and the death of Ms Shipley.

Any nexus between police action and Ms Shipley’s death ended upon her leaving police custody, particularly as a result of the effluxion of time and intervention by other bodies, such that the stated interest of the coroner contained in your letter cannot be properly argued to rest within her Honour’s jurisdiction.”42

24. The letter requested that the “notice of sufficient interest” be withdrawn and further asserted that there was “no jurisdiction for the coroner to request the information sought”.

25. On 16 August 2024, the CSO wrote to the OGC advising that my view remained that: 42 Letter to CSO re SI letter in Shipley Inquest.

“…the issues to be explored at the inquest will include an examination of the events that led to Ms Shipley’s arrest and imprisonment in December 2022, including her likely mental health condition at the time.”

26. That letter enclosed a “draft issues list” for the Inquest and revised the request for policies and a statement from the Commissioner.43 The draft issues list included seven issues (and sub-issues), including the following:44

27. What led to [Ms Shipley]’s arrest and imprisonment in December 2022, and what was her likely mental health condition at the time?

…

3. The adequacy of the response by Corrective Services NSW (CSNSW) to [Ms Shipley] from the date of her detention in December 2022 up until her death…?

…

7. Whether any recommendations are necessary or desirable in relation to [Ms Shipley]’s death, pursuant to s 82 of the Coroner’s Act 2009?

8. On 21 August 2024, I held a directions hearing. A solicitor from the OGC appeared on behalf of the Commissioner who was granted leave to appear in the proceedings. During that hearing, the Commissioner’s representative advised that an “application” would be forthcoming. The Commissioner’s representative indicated that the application would be seeking for the Commissioner to be removed from the Inquest proceedings. I made a direction that any such application was to be provided to the CSO by 30 August 2024. The matter was listed for further directions (if necessary) at 2:00pm on 12 September 2024.

9. On 30 August 2024, the Commissioner’s representative advised that the application had been delayed and that the Commissioner sought an extension until 5:00pm on 3 September 2024. I granted that extension.

10. On 3 September 2024, the CSO received an application signed by the General Counsel, NSWPF.45 The Application stated and sought the following: 43 Letter to Katherine Garaty - 16 August 2024.

44 CAWS2 at [3].

45 Shipley Inquest - Application to State Coroner.

1. That any examination or exploration by the State Coroner and/or Counsel Assisting into the appropriateness or otherwise of the NSW Police Force’s interactions with Ms Shipley including, but not limited to, her mental health, physical health, drug abuse, arrest, charging, bail determination and custody prior to her death is impermissible as it lacks jurisdictional power.

2. In respect of the letter to [the OGC] from the Crown Solicitor’s Office dated 16 August 2024: a. the “request for policies and procedures” be withdrawn on the basis that it is impermissible as it lacks jurisdictional power and a legitimate forensic purpose; and b. the “request for a statement from a senior NSWPF officer” addressing the nominated four areas be withdrawn on the basis that it is impermissible as it lacks jurisdictional power and a legitimate forensic purpose.

3. In respect of the letter of sufficient interest addressed to the Commissioner from the Crown Solicitor’s Office dated 23 July 2024: a. the letter be withdrawn on the basis of a lack of jurisdictional power; and/or, alternatively b. the issues said to be “emerging”, listed and numbered 1, 2, and 3 be removed from consideration in the Inquest on the basis of a lack of jurisdictional power; or, alternatively c. the “Request for Policies” be withdrawn on the basis that it lacks a legitimate forensic purpose and/or the State Coroner and/or Counsel Assisting lacks jurisdictional power to consider the nominated four areas; and d. the “Request for Statement” be withdrawn on the basis that it lacks a legitimate forensic purpose and/or the State Coroner and/or Counsel Assisting lacks jurisdictional power to consider the nominated four areas.

4. The Application was accompanied by a “list of authorities” but did not include written submissions or any other supporting evidence.

5. On 5 September 2024, the CSO advised the Commissioner’s representative that I wished to hear oral submissions on the Application at the directions hearing on 12 September 2024.

6. On 12 September 2024, shortly before midday, the Commissioner’s representative emailed eleven pages of written submissions on “jurisdiction” (“CoPWS”)46 and a list of authorities to the CSO, on behalf of the Commissioner.

The CoPWS were authored by Counsel for the Commissioner and submitted: “[50] The Court should order that: [50.1] any investigation into: i. the appropriateness of the NSW Police’s interactions with Ms Shipley; ii. its institutional frameworks for dealing with persons suffering from mental illness; and iii. any similar investigation into the NSW Police; is excluded from the scope of the inquest into the death of Ms Tammy Michelle Shipley; and [50.2] the request for documents and a witness statement made to the NSW Police on 16 August 2024 is withdrawn.”

33. At 2:00pm that day, the directions hearing proceeded however I was unable to address the Application as Counsel Assisting and the other parties had not had sufficient time to address the written submissions of the Commissioner.

34. To allow the Inquest to commence as planned on 16 September 2024, a regime was proposed to defer hearing of the Application to the end of the Inquest proceedings. The Application was fixed for hearing at 10:00am on 27 September 2024 (as at that time, the scheduled last day of the Inquest).

35. The Inquest proceeded as planned from 16 to 26 September 2024.47 On the first day of the Inquest, the brief of evidence was tendered without objection. I heard from 23 witnesses over that period, including Ms Shipley’s community general practitioner Dr Abdul Matin, and institutional witnesses from South West Sydney 46 MFI-A: Written submissions on behalf of the Commissioner dated 12 September 2024.

47 The Court did not sit on 20 or 23 September 2024.

Local Health District (“SWSLHD”); Justice Health and Forensic Mental Health Network (JHFMHN); and Corrective Services NSW (CSNSW).

36. On 25 September 2024, I received written submissions in relation to the Application from Counsel Assisting (“CAWS”).

37. On 26 September 2024, I received written submissions in reply on behalf of the Commissioner, again authored by Counsel for the Commissioner (“CoPWSR”).

38. On 26 September 2024, at the end of the seventh day of the Inquest, one witness remained to be heard. That witness was stood over to the following day. Counsel Assisting noted to the Court that witness would be heard first, at 10:00am, followed by the Application.48

39. On 27 September 2024, as proceedings for the day were about to commence, I was advised by Counsel Assisting that Senior Counsel for the Commissioner was not available to appear on the Application beyond midday and that consequently, if the remaining witness was to be heard first, the Commissioner sought to have the Application stood over to a future date. I adjourned the Application to the earliest available date of 17 October 2024.49

40. After the remaining witness that day, I adjourned the hearing of the Inquest, other than the Application, to 6 and 7 February 2025.50

41. On 10 October 2024, I received supplementary written submissions of Counsel Assisting (“CAWS2”).51

42. On 16 October 2024, I received further submissions in reply on behalf the Commissioner, authored by Counsel for the Commissioner (“CoPWSR2”).52

43. On 17 October 2024, the hearing of the Application proceeded, and oral submissions were heard from Counsel for the Commissioner, Counsel Assisting and a representative for Ms Shipley’s family.

44. At the hearing of the Application, the following documents were marked for identification in the proceedings: 48 Transcript 26/09/24 p 704 ln 19-34.

49 Transcript 27/09/24 p 706 ln 32 – p 707 ln 2.

50 Transcript 27/09/24 p 742 ln 5-15.

51 MFI-B: Initial Submissions of Counsel Assisting.

52 MFI-A: Written submissions on behalf of the Commissioner dated 16 October 2024.

MFI-A Three sets of written submissions on behalf of the Commissioner dated 12 September 2024, 26 September 2024 and 16 October 2024.

MFI-B Initial and Supplementary Submissions of Counsel Assisting.

MFI-C Chronology of Arrests and Court Appearances.

45. At the conclusion of proceedings that day I invited Counsel for the Commissioner to provide me a note indicating whether the Commissioner agreed with the factual matrix in Counsel Assisting’s submissions (initial and supplementary). I indicated that the note should be provided by 5:00pm on 21 October 2024.53

46. On 21 October 2024, the Commissioner’s representatives provided the Commissioner’s “Note on the Asserted Facts in Counsel Assisting’s Supplementary Submissions” (“CoPN”) to the CSO. In CoPN it was stated that “it would be unsafe for the Court to make any finding about the conduct of the Police Prosecutor on 14 December 2022” as: a. The Court did not have before it: i. “a copy of the bench papers before the Magistrate on which the Magistrate would have noted any appearance by the Prosecutor; ii. an official transcript; or iii. a recording of the matters before and after Ms Shipley’s appearance”; and b. “[t]he unofficial transcript does not reveal that the Prosecutor was even in the courtroom…”54

47. In response to CoPN, the Commissioner’s representatives were provided access to an audio recording of Ms Shipley’s appearance at Campbelltown Local Court on 14 December 2022 (“Court Recording”)55 along with a partially redacted Bench Coversheet (“Bench Coversheet”)56 from that day and offered the opportunity to provide a further note should they wish to do so.

53 Transcript 17/10/24 p 760 ln 27 – p 761 ln 35.

54 CoPN at [8]-[10].

55 Campbelltown Local Court 141222.mp3.

56 Shipley - Bench coversheet Campbelltown LC 141222_Redacted.

48. On 18 November 2024, the Commissioner’s representatives provided a further note (“CoPN2”)57 to the CSO, maintaining the position taken in CoPN.

49. On 22 November 2024, all other interested parties were served CoPN, the Court Recording, the Bench Coversheet and CoPN2 and provided an opportunity to respond by 29 November 2024.

50. On 29 November 2024, Counsel Assisting provided a response to CoPN and CoPN2 (“CAWS3”).58

51. On 12 December 2024, the Commissioner’s representatives provided a further note in reply to CAWS3 (“CoPN3”).59 Legislative Scheme

52. The role and function of a Coroner are set out in the Act.

53. The objects of the Act are set out in s. 3 and relevantly include: c. to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths, … e. to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies), …

54. Section 21 of the Act confers general jurisdiction for a coroner to hold an inquest.

55. In this matter, ss. 23 and 27 of the Act confer additional jurisdiction and mandate that an inquest is required to be held by a senior coroner. Section 23 provides: (1) A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died (or that there is reasonable cause to suspect that the person has died)—

(a) while in the custody of a police officer or in other lawful custody, or … 57 Shipley - Further Note on 14 December Appearance 18.11.24.

58 Submissions of CA re CoP Notes - 29.11.24.

59 NSW Commissioner of Police’s Note in Reply dated 12 December 2024.

(d) while in, or temporarily absent from, any of the following institutions or places of which the person was an inmate— … (ii) a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, …

56. Section 27 provides that: (1) An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances— …

(b) if the jurisdiction to hold the inquest arises under section 23, …

57. Section 81 requires findings as to identity, date, place, manner and cause of the identified person’s death and for those findings to be recorded in writing.

58. Section 82 allows the coroner to make recommendations and provides: (1) A coroner … may make such recommendations as the coroner … considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned.

(2) Without limiting subsection (1), the following are matters that can be the subject of a recommendation—

(a) public health and safety,

(b) that a matter be investigated or reviewed by a specified person or body.

Outline of submissions on the Application Commissioner’s submissions

59. I have carefully read each of the written submissions prepared on behalf of the Commissioner and listened to oral argument and will attempt to summarise the main points made. In summary, the Commissioner submitted that “any connection between Ms Shipley’s death and the conduct of the NSW Police is simply too remote”60 and that any investigation into NSWPF interactions with Ms Shipley and its institutional frameworks for dealing with persons suffering from 60 CoPWS at [4]; Transcript 17/10/24 p 746 ln 34-44.

mental illness is beyond jurisdiction and should be excluded from the scope of the Inquest.61 A Coroner’s jurisdiction

60. In relation to a Coroner’s jurisdiction, the Commissioner submitted that:62 “The jurisdiction of the Coroner is conferred by statute and informed by the common law. The [Act] sets the limits of power beyond which the Court is not authorised to exceed. To exceed those limits is to commit a jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [22]-[25].

A senior coroner has jurisdiction to hold an inquest concerning a death if it appears that a person has died while in custody: the Act, s 23(1)(a).

That power is confined by the scope and objects of the Act: Barton v R (1980) 147 CLR 75, 94; Water Conservation and Irrigation Corporation (NSW) v Browning (1947) 74 CLR 492, 505.”

61. The Commissioner further asserted that the power of a Coroner to make recommendations does not enlarge the scope of a Coroner’s jurisdiction,63 submitting: “It is not a free-ranging general power but arises as a consequence of a coroner’s primary function under the Act, being to make the findings required by s 81: Conway v Jerram [2011] NSWCA 319, [47]; Harmsworth v The State Coroner [1989] VR 989, 996”.

62. Citing Conway v Jerram,64 the Commissioner submitted the Act does not authorise a “roving Royal Commission”65 into matters connected with the death, some of which must be considered “too remote from the event”.66 A line must be drawn by application of a common sense test of causation as identified in March v E & MH Stramare (1991) 171 CLR 506 (“March v Stramare”): cited in Re Doogan; ex parte Lucas-Smith and Others (2005) 193 FLR 239 (“Doogan”), [29].67 61 CoPWS at [7]-[8.2].

62 CoPWS at [18]-[19].

63 CoPWS at [23].

64 [2011] NSWCA 319 (“Conway v Jerram”).

65 CoPWS at [24]; see also CoPWSR2 at [6]-[7].

66 CoPWS at [25].

67 CoPWS at [36]; CoPWSR2 at [2]-[5] citing Conway v Jerram at [30]-[31] and [48]-[49] and Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553, at [46]-[47]; Transcript 27/20/24 p 746 ln 37-39.

63. In Doogan, the Full Court of the Supreme Court of the Australian Capital Territory stated: “A line must be drawn at some point beyond which, even if relevant, factors which come to light will be considered too remote from the event to be regarded as causative. The point where such a line is to be drawn must be determined not by the application of some concrete rule, but by what is described as the “common sense” test of causation affirmed by the High Court of Australia in March v E & MH Stramare Pty Ltd (1991)

171 CLR 506.”

64. The Commissioner additionally submitted that: “Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, [43]”.68

65. The Commissioner asserted that the examination of matters occurring on 9 December 2022 and the question of whether Ms Shipley should have been in custody when she died conflates “a possible precondition to Ms Shipleys death with the common-sense test of causation” found in March v Stramare where Deane J stated:69 “… the mere fact that something constitutes an essential condition (in the ‘but for’ sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a ‘cause’ of that occurrence as a matter of either ordinary language or common sense.

Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a ‘cause’ of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation.”

66. In oral submissions, Counsel for the Commissioner took me to the decision of Harmsworth v State Coroner [1989] VR 989 (“Harmsworth”) in relation to the inquests into the deaths of 5 persons in custody. In that decision, Nathan J held at 995: “Before turning to the particulars, I shall dispose of the legal issues raised.

Mr. Black has contended the power to investigate is limited to relevant 68 CoPWRS2 at [12].

69 CoPWSR at [11]; CoPWSR2 at [13].

enquiries relating to the causes or circumstances of the fire and deaths.

Mr. Gillard contends the coroner's enquiries and requirements do, in fact, fall within that class. He contends the class of enquiries must be broadly construed, because a coroner will not know whether an enquiry is relevant, or whether it is likely to lead to the discovery of material likely to assist him in making his findings, until it is made.

The issue of causation as exemplified by the above arguments has vexed philosophers and judges since Socrates was obliged to drink the hemlock.

I deal with this issue of causation, not by way of assessing the correctness or otherwise of the coroner's questions or requirements, but by dealing with the issue as being one of jurisdictional error of law. That is whether or not he had the ministerial power, to be exercised judicially, to investigate the issues he characterised as causative? ...

…The coroner's source of power of investigation arises from the particular death or fire. A coroner does not have general powers of enquiry or detection ...”70

67. Continuing, concerning the concept of “remoteness”, Nathan J held:71 “The enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of “remoteness”. Of course the prisoners would not have died if they had not been in prison. The sociological factors which related to the causes of their imprisonment could not be remotely relevant. This can be tested by considering how wide, prolix and indeterminate the inquest might be if each of the many facets of the individual personalities, of all those involved were to be considered. A coroner would be confronted with a need to enquire into the personal peculiarities of all of the prisoners who barricaded themselves in. Both those who relented and those who did not. Whether for example, one group or person suborned others, and if so why and how. The personalities of all of the prison officers who interacted with all of the prisoners could also be investigated. Even the interaction of all of the other prisoners at any time in Jika with the deceased. Such an inquest would never end, but worse it could never arrive at the coherent, let alone concise, findings required by the Act, which are the causes of death, etc.

Such an inquest could certainly provide material for much comment. Such 70 Transcript 17/10/24 p 747 ln 10-19 citing Harmsworth at p 995.

71 CoPWS at [42]; CoPSWR2 at [22]; Transcript 17/10/24 p 747 ln 18-31 citing Harmsworth at p 995-6.

discursive investigations are not envisaged nor empowered by the Act.

They are not within jurisdictional power.

Enquiries must be directed to specific ends. That is the making of the findings as required and set out in s. 19(1).

The power to comment, arises as a consequence of the obligation to make findings: see s. 19(2). It is not free-ranging. It must be comment "on any matter connected with the death". The powers to comment and also to make recommendations pursuant to s. 21(2) are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner's prime function, that is to make "findings"… … But the power to comment is incidental and subordinate to the mandatory power to make findings relating to how the deaths occurred, their causes and the identity of any contributory persons.”

68. Counsel for the Commissioner continued:72 “Not all questions of causation can be related to time. As a general proposition the greater the time lapse between the event enquired of is from the allegedly causative factor, the less relevant as an initiating cause that factor will be.”

69. In written submissions, it was put on behalf of the Commissioner that: “A factor which secures the presence of a person at a place when and where they are injured (or here, died), is usually not causally connected with the injury (or death): March v E & MH Stramare, at 516 (Mason CJ).”73

70. Applying the above principles, the Commissioner submitted that: “If the fact of Ms Shipley being in custody at the time of her death is a sufficient connection to enable an inquiry into the appropriateness of her arrest, then that must be true of every death in custody even if the time between arrest and death is 30 years.”74 72 Transcript 17/10/24 p 747 ln 31-33 citing Harmsworth at p 999.

73 CoPSWR2 at [13].

74 CoPWSR at [13].

71. The Commissioner referred to the “many” intervening factors between Ms Shipley’s arrest and her death 11 days later in the care of CSNSW which “concern shortfalls with the treatment provided” to her by CSNSW and bear no connection to the conduct of NSWPF Officers. The Commissioner noted CSNSW owed a non-delegable duty of care to Ms Shipley.75

72. Counsel for the Commissioner was aware of evidence at the Inquest given by CSNSW staff that the NSWPF custody management record for a prisoner “can be an important record” to inform care provided by CSNSW to inmates, demonstrating the potential link between the information that NSWPF pass on to CSNSW and the care that a prisoner may receive. In response, the NSWPF asserted that “[c]ommon-sense causation remains the relevant test even where there are one or more intervening factors: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 6.”76 The Commissioner asserted that errors in NSWPF records, in the face of intervening information obtained by CSNSW, had no role to play in the cause of Ms Shipley’s death.77

73. In relation to Ms Shipley’s mental health condition at the time of her arrest, the Commissioner noted that expert witness Associate Professor Sullivan gave evidence that police would not have immediately identified that she was suffering from mental illness78 and the Commissioner asks “how the police could be expected to pick up on a mental state [on 9 December 2022] that Ms Shipley’s treating practitioner did not 4 days earlier.”79

74. The Commissioner contended that, applying “common sense and experience”, neither Ms Shipley’s arrest, nor her remand, “caused or materially contributed to her death” and that an inquiry into why she was in custody and remained there “is beyond jurisdiction”.80 It is asserted that the involvement of NSWPF is “simply too remote in relation to the manner and cause of Ms Shipley's death”.81 75 CoPWSR at [15]-[16].

76 CoPWSR2 at [16]-[18].

77 CoPWSR2 at [15] and [19-20].

78 CoPWSR at [14].

79 CoPWSR at [19].

80 CoPWSR2 at [14]-[15].

81 Transcript 17/10/24 p 746 ln 41 – p 747 ln 3.

Determining jurisdiction

75. The Commissioner submitted the first duty of a judicial officer in every judicial and quasi-judicial body, irrespective of the executive or investigatory nature of their functions, is to satisfy themselves they have jurisdiction.82 Furthermore, as an inquest is entering its “curial phase” there should have been “a substantial investigatory stage by which the Coroner obtains some knowledge of the issues” so a Coroner is aware whether potential lines of inquiry at the inquest are not only relevant but “whether they are within jurisdiction.”83

76. According to the Commissioner, while a Coroner has a discretion about what matters within jurisdiction are to be the subject of inquiry, such discretionary considerations are not relevant to the first task of determining whether a matter is within jurisdiction. The boundaries of a coroner’s jurisdiction “are to be determined by application of a common-sense test of causation”.84

77. The Commissioner submitted that relevance, or potential relevance, to manner of death and the recommendations function of the Court is not the test for jurisdiction, asserting:85 a. “The power to make recommendations arises as a consequence of a coroner’s primary function to make the findings required by s 81: Conway v Jerram [2011] NSWCA 319, [47]; Harmsworth v The State Coroner [1989] VR 989, 996. It does not enlarge the scope of a coroner’s jurisdiction: Doogan, [41].

b. As a result, it is “necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case”: Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553.

c. Beyond that, and it becomes too remote: Mullaley v State Coroner of Western Australia [2020] WASC 264, [111]-[112]. Remoteness 82 CoPWS at [27]-[29].

83 CoPWS at [30]-[31].

84 CoPWSR at [3]-[4].

85 CoPWSR at [4]-[6].

demarcates the line in the sand beyond which the Court cannot inquire: see Conway v Jerram [2011] NSWCA 319, [49].”

78. The Commissioner further asserted that, contrary to the submissions of Counsel Assisting: “Asking whether [an] inquiry is “relevant”, or “potentially relevant”, or whether the Coroner “may wish” to understand certain matters, is to apply the wrong test.”86 Further, that “even applying Counsel Assisting’s test of relevance, the proposed inquiries would fall outside of jurisdiction.” Relevance to recommendations is not sufficient as a Coroner’s power to make recommendations arises as a consequence of the findings required by s. 81 of the Act.87

79. Aside from submitting that examination of Ms Shipley’s interactions with the NSWPF are beyond jurisdiction, the Commissioner further submitted that the Court can reach a concluded view in relation to jurisdiction prior to hearing any evidence from NSWPF witnesses. Citing his Honour Wright J in Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595; the Commissioner submitted there is a distinction between “nascent” and “curial” stages of the proceedings and asserts that the Act “requires the consideration and identification of issues at a relatively early stage.”88

80. In relation to the authorities relied on by Counsel Assisting, the Commissioner submitted that suggestions of prematurity in deciding jurisdiction found in Thales Australia Ltd v The Coroners Court & Ors [2011] VSC 133, and the decisions in the Inquest into the death of Kumanjayi Walker, are not binding on this Court.

Citing Doogan at [13], the Commissioner submitted that, while a Coroner has a discretion about what matters within jurisdiction are to be the subject of inquiry, a “coroner is not free to enlarge his or her own jurisdiction by the adoption of terms of reference…”.89

81. Regarding the NSWPF’s connection to the cause of death, the Commissioner submitted that the authorities relied on by Counsel Assisting “do not mandate, 86 CoPWSR2 at [5].

87 CoPWSR2 at [22]-[23] citing: Conway v Jerram, [47]; Harmsworth, 996.

88 CoPWSR at [7]-[9].

89 CoPWS at [32]-[33]; CoPWSR at [2]]; Transcript 17/10/24 p 747 ln 36-40.

nor suggest, a different conclusion” to that propounded by the Commissioner”. In particular:90 a. Atkinson v Morrow [2005] QCA 353 concerned very different factual circumstances to the Inquest. The Commissioner concedes “the conduct of [Queensland] police in that case was plainly relevant to the circumstances of the death” and, contrary to Ms Shipley’s case, “there were not a multitude of known intervening factors like with Ms Shipley.” b. The Inquest into the Death of Heather Winchester “was also a very different case” where a coroner ruled that the issue in contention was “inextricably linked” to the circumstances of her death.

82. The Commissioner submitted there is no such connection in Ms Shipley’s case whereby her “arrest and subsequent bail refusal by the Local Court were the reasons she was in custody between 10 and 20 December 2022, and not, based on a common-sense approach, reasons for her death.” Accordingly, it is submitted that NSWPF involvement was “too remote to fall within the Coroner’s jurisdiction”.91

83. In oral submissions, Counsel for the Commissioner’s submissions included a statement that: “[n]othing that NSW Police did or did not do prior to [Ms Shipley] coming into the care of [CSNSW] can have any bearing on the manner and cause of her death. It's just simply too remote ...”92

84. Counsel for the Commissioner further asserted that Counsel Assisting had failed to engage with the concept of remoteness required by the common sense test used to determine jurisdiction.93 Counsel Assisting Submissions

85. Counsel Assisting submitted that; “[f]ar from being a “roving Royal Commission” … the inquest was planned to run in an efficient and modest way, over a relatively short period of time (prior to objection raised by the NSWPF, the matter had been 90 CoPWSR at [21]-[25].

91 CoPWSR at [26]-[27].

92 Transcript 17/10/24 p 748 ln 33-35.

93 Transcript 17/10/24 p 751 ln 36-47.

listed for only eight days, which was to include evidence and oral submissions).

Counsel Assisting suggested that the Application should be dismissed since the Coroner had jurisdiction to hold this mandatory inquest, the matters to be inquired into were not too remote and did not exceed jurisdiction and the request for documents and a statement from a senior police officer within the NSWPF are “likely to provide material assistance to the Court.”94

86. Counsel Assisting rejected the Commissioner’s submissions that she had “failed to grapple with the chief complaint made on behalf of the Commissioner that the matter or the manner in which the inquest is being conducted suggests that it is beyond jurisdiction.”95 A Coroner’s jurisdiction

87. In relation to a Coroner’s jurisdiction, Counsel Assisting submitted that the Act sets out the statutory basis of a Coroner’s power and as Ms Shipley died in custody, an inquest into her death is mandatory pursuant to ss. 23 and 27 of the Act.96 Counsel Assisting further asserted “the case law is clear that once jurisdiction is established, the Court has a broad jurisdiction to determine what matters should be inquired into, relevant to the statutory function; manner and cause of death and recommendations.”97

88. Counsel Assisting submitted that at the conclusion of the Inquest, the Coroner is required to record, inter alia, “the manner and cause of the person’s death.” The “cause” of death means the physiological cause or causes of death while the “manner” of death is “intended to encompass the circumstances surrounding the death, allowing for considerable discretion for the Coroner to determine the scope and focus of the inquiry.” Section 82 of the Act provides power for a Coroner to make recommendations the Coroner “considers necessary or desirable to make in relation to any matter connected with the death … with which an inquest … is concerned.”98 Authorities relating to scope of an inquest

89. Counsel Assisting referred me to the recent interlocutory ruling of Deputy State 94 CAWS at [1] and [5].

95 Transcript 17/10/24 p 749 ln 4-9.

96 CAWS at [45]-[48] citing s. 81(1)(c) of the Act.

97 Transcript 17/10/24 p 749 ln 11-18.

98 CAWS at [49]-[50] citing Dillon and Hadley ‘The Australasian Coroners Manual’ 2015 p 112 and s. 82(1) of the Act.

Coroner O’Neil in the Inquest into the death of Heather Winchester99 (“Winchester”) in which his Honour conveniently sets out relevant authorities on scope. As that decision is unpublished, the relevant paragraphs are reproduced below.

“[76] The relevant terminology in the NSW Coroners Act is “manner of death”. In Conway v Jerram, after reviewing the authorities, Barr J concluded that: “manner of death should be given a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred.” (emphasis added) [77] So far as the extent of the inquiry into manner is concerned, Harmsworth confirms that inquiries must be directed to the making of the statutory findings and cautioned against embarking on an inquiry that might never end and that might never enable coherent and concise findings to be made. In R v Doogan, the Full Court of the Australian Capital Territory Supreme Court warned against conducting a “roving royal commission”.

[78] Whilst these authorities make clear that the scope of an inquest is not unlimited, Waller notes that it is important that “manner of death” not be too narrowly construed.100 [79] What is a permissible scope will turn on the facts of each inquest.

Consideration of authorities is instructive as to what has been found to be within scope.

[80] In Atkinson v Morrow101, the deceased (Mr O’Sullivan) had captured police attention when he had complained that persons hiding in trees had a gun trained on him. Police attended and transported the deceased from the area where his complaint had been made, and later dropped him off in a Queensland country town, known as a place where long haul trucks picked up persons who wanted transportation to other parts of the state.

The deceased was not seen alive again. The Queensland Court of Appeal confirmed that it was within permissible scope for a senior police officer to 99 CAWS at [51]-[53] citing Inquest into the death of Heather Winchester; Interlocutory decision of Magistrate O’Neil 20 February 2023 at [76]-[87] (unpublished).

100 Waller’s, Coronial Law and Practice, 4th Ed., 81.19.

101 [2005] QCA 353.

be required to give evidence in relation to dealing with situations similar to that which had eventuated in relation to the death of Mr O'Sullivan.

[81] In Thales Australia Limited v The Coroners Court [2011] VSC 133, in an inquest that had become fragmented due to the manner in which Thales had made submissions, the Coroner had made findings as to cause and circumstances while at the same time indicating the inquest would be continued for further inquiry into occupational health and safety issues. On appeal Beach J was satisfied that it was open to his Honour to consider evidence on these issues.

[82] In Harmsworth, it was clear the deceased died in a fire in a prison following some prisoners barricading themselves and ultimately one of the prisoners starting a fire. On appeal, Nathan J accepted that an inquiry into the cause of each deceased prisoner’s frustration would be a permissible area for inquiry, as would whether the levels of frustration and anger induced by the relevant incarceration required extra diligence and care by the Department of Corrections.

[83] In Doomadgee v Clements,102 Muir J, whilst acknowledging that the power to comment was ancillary to the duty to make the statutory findings, expressed the view that the scope of an inquest is not confined to evidence directly related to the statutory findings.

[84] In Doogan,103 the Coroner was inquiring into bushfires that had caused death and widespread damage in a Canberra area. In the course of its judgment on the question of apprehended bias, the Full Court of the ACT Supreme Court observed, by way of example, that consideration of the “circumstances in which the fire occurred” could have extended to referring to Australia Day traffic hampering the deployment of firefighting units.

[85] Finally in relation to authority I will refer to some comments of superior courts in relation to the role of the coroner.

[86] In R v Doogan,104 in a ruling that the application was premature, the Court observed that it was neither necessary nor appropriate to go through either the evidence or issues list with a view to making rulings as 102 Doomadgee v Clements (2006) 2 Qd R 352 at 360, [28].

103 R v Doogan [2005] ACTSC 74 at [36].

104 R v Doogan (2005) 158 ACTR 1.

to the relevance of each of the issues identified.

[87] In Bauwens,105 the Northern Territory Supreme Court noted that a Coroner’s Court fulfils the “important public function” of investigating the cause and circumstances of reportable deaths and that it is “generally … inappropriate to interfere with the gathering of evidence by a coroner” or to “seek from a coroner a ruling that one piece of evidence or another is inadmissible or irrelevant as if the coroner were conducting a civil or criminal trial”.”

90. Additionally, Counsel Assisting’s submissions included reference to the following observation of the Court of Appeal of England and Wales: “A decision on scope represents a coroner’s view about what is necessary, desirable and proportionate by way of investigation to enable the statutory functions to be discharged. These are not hard-edged questions. The decision on scope, just as a decision on which witnesses to call, and the breadth of evidence adduced, is for the coroner. A court exercising supervisory jurisdiction can interfere with such a decision only if it is infected with a public law failing. It has long been the case that a court exercising supervisory jurisdiction will be slow to disturb a decision of this sort .”106

91. Counsel Assisting referred me to the decision of Re State Coroner; Ex parte Minister for Health, where Buss JA, with whom Martin CJ and Miller JA of the Western Australian Supreme Court agreed, expressed the opinion that the jurisdiction and obligation to find, if possible, how death occurred referred not only to the means or mechanism by which the death was suffered or inflicted but extended to the circumstances attending the death. A construction which entitled and required the coroner to find, if possible, by what means and in what circumstances the death occurred reflected the public interest “which is protected and advanced by a coronial investigation”.107 105 Bauwens & Anor v The Territory Coroner 2022 NTSC 92 at [62, 64].

106 CAWS at [54] citing Coroner for the Birmingham Inquests v Hambleton [2018] EWCA Civ 2081 at [48].

107 CAWS at [55] citing Re State Coroner; Ex parte Minister for Health (2009) 38 WAR 553; [2009] WASCA 165 at [42].

92. I was taken by Counsel Assisting to the decision of State Coroner Barnes’ (as his Honour then was) in a ruling on the scope of the Lindt Café Inquest. His Honour stated:108 “Without pleadings or the strict adherence to the rules of evidence to constrain and guide me, I must be conscious of the cost and delay unnecessary inquiry can cause. It is probably true that coroners do on occasions go too far down unproductive even unnecessary lines of inquiry. Conversely, coroners very regularly draw a line beyond which they decline to inquire, even though as a matter of strict logic they have not reached the beginning of the chain of causation. They do that by applying common sense and the legal concept of remoteness”.

93. In relation to the issues arising in the Inquest, Counsel Assisting submitted that the case of Atkinson v Morrow [2005] QCA 353 is particularly relevant. In that matter, the Coroner presiding over an inquest had requested, and subsequently admitted into evidence, a statement of a senior police officer of the Queensland Police Service (Acting Chief Superintendent Kummerow) in relation to the “Queensland Police Service’s policy guidelines (or the like) for dealing with similar situations” to those examined in relation to the deceased. At the inquest it was submitted on behalf of the Commissioner that the statement had nothing to do with Mr O’Sullivan’s death and was irrelevant to the inquest. Rejecting the Commissioner’s submission, the Coroner ruled that the statement of the Acting Chief Superintendent was admissible and that he required that senior officer to give evidence that was “relevant to the issue of how Mr O’Sullivan came to be at Mulgildie on the morning before it appears he died”, and that he wished to be informed about police procedures that applied in the particular circumstances that arose for the police officers in relation to the deceased. The Police Commissioner unsuccessfully appealed to a single justice of the Supreme Court and then to the Queensland Court of Appeal. Referring to authority addressing the scope of a coroner’s inquiry, the Queensland Court of Appeal stated:109 “[7] In the present case, no question is raised that the State Coroner acted within jurisdiction conferred by s7(1) and s7B(1) in holding an inquest into 108 CAWS at [56] citing Inquest into the Deaths Arising from the Lindt Café Siege (Katrina Dawson, Tori Johnstone and Man Haron Monis) (Coroners Court of NSW, 5 June 2015 per State Coroner Barnes).

109 CAWS at [57] citing Atkinson v Morrow at [7]-[17].

the death of Mr O’Sullivan. The real issues here are whether the acting coroner at Gladstone exceeded the ambit of his jurisdiction (1) in making the request for the statement provided by Acting Chief Superintendent Kummerow; and (2) in deciding to admit it into evidence… … [13] The decision110 seems to me, with respect, to be clear authority against the proposition contended for here by Mr Martin SC for the applicant Commissioner, which is that “how the death occurred” in s 24(1) does not mean “by what means and in what circumstances the death occurred”… [14] … My conclusion is that on the first question on this appeal those decisions confirm that the acting coroner was correct in concluding here that it was part of his function in conducting the inquest into the death of Mr O’Sullivan to inquire into all the circumstances attending that death or which might have caused it. In deciding to do so, he did not exceed the jurisdiction conferred by s 24(1)(c), or potentially under s 43(2)(a)(ii), or otherwise under the [Coroner’s Act 1958]. This conclusion accords with the decision of the learned judge below in refusing the application to review the acting coroner’s decision in this matter.

[15] The second question concerns the admissibility of the Statement of Acting Chief Superintendent Kummerow. In it, he states that the Queensland Police Service policy and procedures “associated with the situation that confronted the police at Monto on 28 March 2003 are primarily contained in various service publications or manuals with names such as the Operating Procedures Manual, the Human Resources Manual and so on ...

… [17] It may be thought that not much of this appears to bear directly on the circumstances of or attending the death of Mr O’Sullivan in this case.

Mr Martin SC submitted that most, if not all of it, was in any event contained in statutory provisions, legislative instruments or published instructions that are or would have been available to the acting coroner, without troubling Acting Chief Superintendent Kummerow. But it may be 110 The ‘decision’ referred to is R v Graham (1905) 93 LT 371. See Atkinson v Morrow at [8]-[12].

that the acting coroner, in inquiring into the circumstances of the death of Mr O’Sullivan wished to know what it is that police in a distant part of the State are expected to do when “confronted” with a case like this. If, for example, there were, objectively speaking, indications that on 28 March 2003, Mr O’Sullivan was suffering from the effects of drug ingestion that were obvious to some others if not to the police officers concerned, it would not appear to have been helpful or “appropriate” that Mr O’Sullivan should have been taken and left alone in a more remote and even less populous part of the district.” Authorities relating to the status of an issues list

94. Counsel Assisting also relied on Deputy State Coroner O’Neil’s explanation of the status of an issues list in Winchester, submitting the following “core principles” apply:111 i. An issues list does not have any legal or statutory status; it is a document circulated prior to an inquest to foreshadow issues that might be explored by counsel assisting in the course [of] an inquest.

ii. An issues list does not delimit the scope of an inquest and it can neither enlarge nor restrain a coroner’s jurisdiction.

iii. Issues may rise or fall away as evidence unfolds during the course of the inquiry, even at a late stage of proceedings.

iv. An issues list is distributed as a matter of procedural fairness to advise participants of matters that may arise on the evidence.

95. Counsel Assisting submitted that it was a misunderstanding of the coronial jurisdiction to assert, as the Commissioner appeared to have done, that there is an inquisitorial phase that ends prior to the inquest, and then a curial phase of an inquest where further inquiries cannot be undertaken. Counsel Assisting drew my attention to authorities “where courts have repeated that issues may arise throughout the inquest”.112 Counsel Assisting cited the decision of Northern Territory Coroner, Judge Armitage, in Kumanjayi Walker (Ruling No 2), [2022] NTLC 017, including the following passages:113 111 CAWS at [58] citing Winchester at [32].

112 Transcript 17/10/24 p 749 ln 34-41.

113 CAWS at [60]; Transcript 17/10/24 p 749 ln 45-50.

“[13] As the Full Court of the Supreme Court of the Australian Capital Territory noted in R v Doogan; Ex parte Lucas-Smith, [(2004) 157 ACTR 1], one difficulty with trying to conclusively determine the scope of an inquest at its outset is that it may ‘become apparent ... that an issue identified in the list early in the proceedings was no longer relevant at the conclusion of the evidence.’[R v Doogan; Ex parte Lucas-Smith (2004) 157 ACTR 1, [13] (Higgins CJ, Crispin and Bennett JJ)]. Equally, evidence may emerge late in the inquest that may give rise to new issues. In light of the investigative character of an inquest, [Domaszewicz v State Coroner (2004) 11 VR 237, [81]] this is not surprising. In Doogan, the Full Court continued: “…the mere admission of evidence that appears to canvass a range of issues extending beyond those specified in [the Coroners Act] does not demonstrate any error of jurisdiction. Indeed, a liberal approach to the potential relevance of evidence may sometimes be appropriate, particularly in the early stages of an inquiry when the Coroner is still seeking to identify what issues are likely to arise. [R v Doogan; Ex parte Lucas-Smith (2004) 157 ACTR 1, [34] (Higgins CJ, Crispin and Bennett JJ]”…

96. Counsel Assisting also referred me to the decision of Beach J in Thales Australia Limited v Coroner’s Court [2011] VSC133 where his Honour said it was premature to object to evidence yet to be called where the question of what comment or recommendation might be permissible as a result of that evidence is not yet capable of determination. His Honour’s reasoning includes:114 “It is, at this stage, hypothetical to consider whether the calling of a particular witness or particular evidence might infringe the prohibition on not inquiring for the sole or dominant reason of making a comment or recommendation.

Similarly, it would be premature to speculate on whether any particular evidence that might or might not be called might or might not be ‘connected with the death”.

Application of principles to facts of the Inquest

97. In relation to the draft issues list for the Inquest, Counsel Assisting submitted that “the circumstances of Ms Shipley’s entry into custody became more rather than less relevant” as the Inquest progressed,115 stating: 114 Transcript 17/10/24 p 750 ln 1-19.

115 CAWS2 at [37].

“As the hearing of the Inquest proceeded, and the issues were explored, matters connected with [Ms Shipley]’s death which involved the actions and policies of the NSWPF were both illuminated and refined.”116

98. Counsel Assisting submitted that there are several reasons why the interaction between the NSWPF and Ms Shipley may be relevant to manner of death, and to the recommendations function of the Court, noting that the Court will not be able to reach a concluded view until the evidence is heard.117

99. Firstly, Counsel Assisting submitted that: a. “The evidence is persuasive that on 9 December 2022, the date of [Ms Shipley’s] arrest and detention into NSWPF custody, [she] was suffering from chronic schizophrenia and bipolar disorder and was in an acute phase of her illness”;118 b. “[t]hat acute phase of [her] illness continued from her arrest until the date of her death”;119 and c. that the NSWPF may have “missed an opportunity to divert [her] from the criminal justice system” and back into the mental health care system either by “having her scheduled, or by providing information to the Magistrate who could have considered that in making a determination on bail and access to legal representation.”120

100. Counsel Assisting noted the evidence of the expert psychiatrist A/Prof Sullivan and submitted that there is no expectation that NSWPF officers would have known of Ms Shipley’s mental illness by her presentation on 9 December 2022 alone.121 However, she pointed out that NSWPF records included references to previous occasions when NSWPF officers had dealt with Ms Shipley when she was mentally ill, which may have provided police with information relevant to her presentation on 9 December 2022, and to subsequent treatment and care that she could have had access to.122 116 CAWS2 at [8]; Transcript 17/10/24 p 750 ln 32-35.

117 CAWS at [62].

118 CAWS2 at [9] and [33].

119 CAWS2 at [10].

120 CAWS at [63]-[64].

121 CAWS2 at [11]-[13].

122 CAWS2 at [38].

101. Second, Counsel Assisting submitted that it was a mistake by police to record on Ms Shipley’s ‘Custody Management Record’ on 9 December 2022 that she had no history of mental illness when she clearly did, and that information was available from a search of police records. Counsel Assisting pointed out that it is not yet clear why the Custody Management Record appears to have been completed incorrectly by a NSWPF officer at the watch house.123 Prior to her arrest on 9 December 2022, Ms Shipley had interactions with NSWPF officers three times in 2022 alone where her mental health issues were apparent and required intervention.124

102. Third, Counsel Assisting submitted that the error made by police means that documentation provided to CSNSW about Ms Shipley’s mental health was incomplete and that information is utilised by CSNSW intake staff.125 Even if it did not ultimately make a difference to Ms Shipley (because CSNSW staff eventually found out about Ms Shipley’s schizophrenia from a review of their own records), the failure to pass on accurate police history may be the subject of a recommendation, and relevant to the coroner’s death prevention function.

103. Fourth, The NSWPF Criminal History Bail Report located on the Court file in relation to the H76115633 offences stated “POLICE BAIL: BAIL CONDITIONAL”.

Counsel Assisting asserted that the NSWPF prosecutor appearing at Campbelltown Local Court on 14 December 2022 did not alert the Magistrate to the fact that Ms Shipley had been issued a detention application for breach of bail in relation to the H76115633 offences. That meant that the Magistrate laboured under the incorrect belief that “as far as [they were] concerned, that should mean [she would] be released” on 14 December. It is still not clear why that occurred and the Court may have been “misled by the documentation”.126

104. Fifth, Counsel Assisting submitted that the Court may decide to make recommendations that “might prevent Aboriginal deaths in custody”, noting I have power to make recommendations that are deemed to be “necessary or desirable”127 and stating I may; 123 CAWS at [65] citing Tab 44A: Statement of SC Tracey Evry and Tab 45: Custody Management Record – Campbelltown Police Station.

124 Transcript 17/10/24 p 753 ln 39-42.

125 CAWS at [66]-[67] citing Transcript 17/09/24 p 111 ln 21 – p 112 ln 2; p 116 ln 1-18; Transcript 17/10/24 p 753 ln 17-24.

126 CAWS2 at [34]-[36] and [39]; see also CAWS3 at [9]-[13].

127 CAWS2 at [40]-[42]; see also Transcript 17/10/24 p 756 ln 49 – p 757 ln 14.

“…be interested in recommendations that may assist police to divert persons suffering from mental illness from the custodial system, or at the very least, to ensure that they pass on accurate information that will assist a subsequent decision maker.”128

105. Counsel Assisting noted the publication of the NSWPF report “Summary Internal Review of the NSW Police Force response to mental health incidents in the community” and asserted it “underscores the prevalence of contact between police and mentally ill, mentally disordered and mentally disturbed members of the community”, suggesting Ms Shipley is one such community member who may have benefited by referral to another agency with better expertise to deal with her mental illness.129 Counsel Assisting asserted that the purpose of the request to the NSWPF is to understand what options were, or should have been, available to police to assist Ms Shipley with her mental health care that might have helped to prevent her death in custody, “to determine if there were missed opportunities to better care for her, and to support any recommendations that might assist someone in [Ms Shipley’s] position (and Police’s) in the future.”130 Counsel Assisting’s Response to the Submissions of Commissioner of Police

106. In response to CoPWS, Counsel Assisting submitted it was incorrect to suggest that the involvement of mental health providers who treated Ms Shipley prior to her arrest were too remote to “require a sufficient interest” letter. Counsel Assisting noted that a sufficient interest letter had been sent to (amongst others) the My Doctors Medical Centre where health practitioners had treated Ms Shipley in the months prior to her death, and to the South West Sydney Local Health District. Further some of those practitioners had given evidence and each acknowledged they may have missed opportunities to assist Ms Shipley, exemplifying the importance of a Coroner “taking a wider lens” and considering recommendations that lead to systemic change and death prevention.131

107. Counsel Assisting acknowledged that inquests should not be permitted to become a ‘roving royal commission’ but argued that it was misconceived to suggest there was a danger of that in this case, where the focus on NSWPF 128 CAWS at [69].

129 CAWS at [70]-[72].

130 CAWS at [72]-[73].

131 CAWS at [74]-[76]; CAWS2 at [44].

related to a short time period of 9 December 2022 when she was last arrested by police (only 11 days before Ms Shipley’s death), through to 14 December 2022, the last date she appeared in Court, only six days before her death. That was a date when Ms Shipley was unrepresented and in circumstances where the police prosecutor appeared before the Court and would have provided certain information to the Magistrate.132 The Magistrate disposed of the matter believing, on the basis of the information before him, that he was releasing Ms Shipley from custody.

108. In relation to the citing of Harmsworth by Counsel for the Commissioner, Counsel Assisting submitted that that there was a further relevant paragraph of that decision which indicates the Court was “not suggesting a strictly narrow line of inquiry”. That paragraph is as follows:133 “If the coroner has come to a preliminary view that frustration and anger induced the prisoners to build the barricades and disrupt the airconditioning system and that, in turn, led Wright to ignite the barricade and suffocate himself and his companions, then the sources of that frustration and anger could provide a line of enquiry, which is within the coroner's jurisdiction. Namely, that the frustration and anger led to dangerous behaviour resulting in death. However, I take that issue no further, it is for the coroner.”

109. Counsel Assisting accepted that the Court in Harmsworth was highlighting circumstances in which an inquest might be deemed to include issues that are so remote that they are beyond scope, but in Ms Shipley’s case the Court is “not inquiring into the various sociological factors, at length, that led [Ms Shipley] coming into custody”.134

110. In response to the assertion in CoPN1 and CoPN2 that the Police Prosecutor may not have been in the courtroom at the Campbelltown Court Appearance, Counsel Assisting submitted that submission “is neither logical, nor helpful to the Court”. Counsel Assisting submitted that:135 132 Transcript 17/10/24 p 749 ln 24-33.

133 Transcript 17/10/24 p 751 ln 14-18 citing Harmsworth at p 989.

134 Transcript 17/10/24 p 751 ln 26-32.

135 CAWS3 at [7]-[11].

a. first, it is open to the Coroner to take judicial notice of the fact that the proceedings to hear the criminal charges against Ms Shipley would not have continued without the prosecutor present at the bar table; b. second, the Bench Coversheet indicates that a Prosecutor with a surname of “Sanders” was present at the Campbelltown Court Appearance; and c. third, as criminal prosecutors in the Local Court are employees of the NSWPF, it is within the purview of the NSWPF to establish whether their own Prosecutor was present at the Campbelltown Court Appearance and to assist the Coroner in relation to that issue.

111. Finally, Counsel Assisting submitted that there is no dispute that I have jurisdiction to hold the Inquest (in fact it is a mandatory inquest) and the authorities make it clear that the scope of the Inquest, although not unlimited, is a matter over which I have broad discretion, guided by common sense.136 Furthermore “[t]hat jurisdiction extends to examining the circumstances of [Ms Shipley’s] arrest and imprisonment in December 2022, and her likely mental health condition at the time”.137

112. Counsel Assisting submitted: “It is clearly within a common sense test to look at the circumstances in which [Ms Shipley] came to be in custody since they are directly relevant to her death 11 days later.”138 Counsel Assisting explained how this is supported by the evidence of the expert psychiatrists Dr Large and A/Prof Sullivan, submitting:139 “The expert panel of psychiatrists who was called – Dr Large and Dr Sullivan - agree that [Ms Shipley] had suffered from a chronic mental illness for well over a decade, and that illness was schizophrenia. It manifested itself in various ways, including psychosis and depression.

The experts agree that [Ms Shipley] was mentally ill or mentally disturbed when she entered into custody. She was in an acute phase of her psychosis.

136 CAWS at [77]-[78]; Transcript 17/10/24 p 751 ln 42-47.

137 CAWS2 at [37].

138 Transcript 17/10/24 p 751 ln 42-47 and p 757 ln 17-25.

139 Transcript 17/10/24 p 751 ln 49 - p 752 ln 41.

They agree that she died as a result of behaviour that was directly linked to her psychosis, her schizophrenia. They agree that she could not have received good treatment for her schizophrenia in the MSU, the Mum Shirl Unit, in custody. They agree that she would’ve received better treatment in the community.

They agree that [Ms Shipley]’s presentation on 9 December 2022, 11 days before she died, could be attributed to her depressive condition – it was a depressive phase of the bipolar; so she was unwell. They agree that her psychosis would not have been obvious or may not have been obvious to police at face value – that is, the presentation itself did not reveal, necessarily, the psychosis. They also gave evidence then that underscores the need to check the record and history – that is, to have access to mental health history that might tell you more about [Ms Shipley]’s circumstances - and to make that record available to subsequent decision makers.

Those subsequent decision makers included NSW Police who were dealing with [Ms Shipley] on 9 December, but also the police prosecutor who was dealing with her at the bail court and subsequently including on 14 December, and the Magistrate… [Ms Shipley]’s case was before the Magistrate on 10 December, on 12 December and on 14 December. On 14 December, the Magistrate who was sentencing [Ms Shipley] for her shoplifting offence and trespass on one day, believed that he was releasing her. He became aware of her mental health condition because [Ms Shipley] mentioned it. She said that she would, on release, go straight and get her buprenorphine. She explained that her mental health deterioration related to her coming off buprenorphine, and [his Honour] said: “As far as I am concerned, this means that you can be released” – and he was not corrected on that day.

Now, that issue is an issue that has emerged throughout the course of the inquest, but it is an issue that concerns New South Wales Police because there was a police prosecutor at the Bar Table…”

113. Furthermore, in relation to “issues that emerged during the course of the Inquest”, Counsel Assisting stated;

“Applying a common sense test, they could not be remote, and what the case law suggests is that there is considerable discretion for your Honour when you are applying that common sense test.”140

114. Counsel Assisting asserted that the Inquest “is being run in a way that is conscious of the jurisdictional limits and is confined and sensible” and that “the nature of the inquiry is clearly within scope”.141

115. Consequently, Counsel Assisting submitted I should dismiss the Application.142 Family Submissions

116. The Aboriginal Legal Service, appearing on behalf of Ms Shipley’s mother Vicki and her family (“the Family”) made oral submissions at the hearing of the Application.

117. In relation to a Coroner’s jurisdiction, the Family relied on the written and oral submissions of Counsel Assisting, submitting that Ms Shipley’s “arrest and detention by New South Wales Police was the first of a series of inextricably connected events by government institutions that failed [Ms Shipley] at the end of her life”.143

118. In relation to Ms Shipley’s presentation at the time of her arrest, the Family submitted that the Commissioner’s assertion that arresting police would not have immediately identified she was suffering a mental illness, selectively addressed the evidence adduced at the Inquest.144

119. The Family asserted that the NSWPF had “both longitudinal and recent institutional knowledge about Ms Shipley’s mental health” which should have informed decisions police made in relation to her. Mr Rees stated: “The failure of police dealing with [Ms Shipley] on 9 December through to the police prosecutors in court, to have regard to or even be aware of [Ms Shipley’s] known mental health history, means that opportunities were lost to make better informed decisions.”145 140 Transcript 17/10/24 p 762 ln 1-4.

141 CAWS at [77]-[78].

142 CAWS at [79]; CAWS2 at [45]; CAWS3 at [15].

143 Transcript 17/10/24 p 758 ln 25-27.

144 Transcript 17/10/24 p 758 ln 27-39.

145 Transcript 17/10/24 p 758 ln 44-47.

120. In relation to the Commissioner’s reliance on the authority of Harmsworth as to the relevance of sociological factors to a person’s imprisonment, the Family submitted that it was the information the NSWPF possessed and what they “did or didn’t do” with that information that was relevant, as opposed to “matters intrinsic to” Ms Shipley. More specifically:146 “…how do police use known information about a person’s mental health to better inform decisions they make? How does that information get communicated within the [NSWPF] to inform downstream decision making in the justice system by legal representatives, police at court, the courts, judicial officers, [CSNSW] and [JHFMHN]?”

121. The Family asserted that the statement “Police are not aware of any drug or mental health issues of the accused” which appears in the NSWPF Fact Sheet147 for Ms Shipley’s offending is false and it: “…fails to inform, misrepresents, and has the potential to mislead people reading the document. That includes legal representatives who [Ms Shipley] refused to engage with but likely would have been provided with that document, [JHFMHN] staff at court, police prosecutors and the magistrates who dealt with [Ms Shipley’s] matters.”148

122. The Family further submitted that: “Had [Ms Shipley’s] mental health history been accurately recorded in the fact sheet, there was an opportunity to a legal representative who would have read it to make the magistrate, [JHFMHN] or [CSNSW] aware. The same is true of the police prosecutor who appeared on each of the occasions [Ms Shipley’s] matters were before the court.

The magistrate, properly informed, may have referred [Ms Shipley] to [JHFFMHN] or endorsed a warrant to be assessed for mental illness and medication on entry into [CSNSW’s] ... There was a lost opportunity for each of those institutions to consider the known information and make more informed decisions on how to care for [Ms Shipley]. It could’ve affected the timeliness of any intervention.”149

123. In relation to the use of information by the NSWPF, the Family submitted “the Inquest is silent as to how police are trained to access, use and communicate 146 Transcript 17/10/24 p 758 ln 49 p 759 ln 11.

147 Tab 42: Offence Details – H76115633.

148 Transcript 17/10/24 p 759 ln 15-21.

149 Transcript 17/10/24 p 759 ln 36-48.

information held by police information systems”150 and the fact that Ms Shipley was sentenced in her absence on 12 January 2023, at Campbelltown Local Court, exemplifies there is a problem. The Family asserted no one, including the police prosecutor, notified the Court that day of Ms Shipley’s death, even though the NSWPF had commenced investigating it some three weeks earlier.151

124. Ultimately the Family submitted that exploring issues in relation to the NSWPF’s involvement in the matter “may inform recommendations for change to ensure somebody in [Ms Shipley’s] position in the future is better cared for.”152 Decision

125. Having carefully considered the written and oral submissions of Counsel for the Commissioner, I have determined to dismiss the Application. I decline to make the orders sought by the Commissioner as set out above at paragraph [32]. That is: a. I decline to order that any investigation into: i. the appropriateness of the NSWPF’s interactions with Ms Shipley; ii. its institutional frameworks for dealing with persons suffering from mental illness; and iii. any similar investigation into the NSWPF; is excluded from the scope of the inquest into the death of Ms Tammy Michelle Shipley; and b. I decline to order that the request for documents and a witness statement made to the NSWPF on 16 August 2024 is withdrawn.

Reasons for my decision The Court has jurisdiction

126. The powers of the Court are governed by the Coroner’s Act 2009 (NSW) (the Act).

127. As Counsel Assisting submitted, since Ms Shipley died while she was in custody, this is a mandatory inquest. Section 23(1)(a) of the Act provides that a senior 150 Transcript 17/10/24 p 759 ln 23-24.

151 Transcript 17/10/24 p 760 ln 12-19.

152 Transcript 17/10/24 p 760 ln 7-10.

coroner has jurisdiction to hold an inquest concerning the death of a person while in the custody of a police officer or in other lawful custody; s. 23(1)(d)(ii) provides that a senior coroner has jurisdiction where there has been a death in a correctional centre and 27(1)(b) of the Act provides that an inquest concerning the death of a person in custody “is required to be held” in those circumstances.

128. I must fulfil the functions provided for in the Act. As set out above, s. 81 of the Act requires me to make findings as to Ms Shipley’s identity, date, place, manner and cause of death.

129. It is well recognised that “cause of death” relates to the medical or physical cause, while “manner of death” is a term that “should be given a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred”.153

130. Clearly the scope of my inquiry is not unlimited. As Nathan J warned in the decision of Harmsworth, inquiries must be directed to the statutory findings I am required to make and I must be careful not to embark on an inquiry that might never end, or one where I might never be able to make coherent and concise findings.154 I am aware that I do not have the powers of a “roving royal commission” and I have been reminded of the warnings issued in Doogan against attempting such an inquiry.155

131. While the authorities referred to above make it clear that the scope of an inquest is not unlimited, there is also ample authority to the effect that I have considerable discretion to determine the scope of my inquest. The learned authors of Waller’s, the leading NSW text book on the Coroner’s jurisdiction, note that it is important that “manner of death” not be too narrowly construed.156 I accept, as did State Coroner Barnes in the Lindt decision cited above, that this was well expressed by the authors of another leading Australian text on coronial matters when they said: “The question is one of remoteness and is not readily susceptible to definition”.157 153 Conway v Jerram (2010) 78 NSWLR 689.

154 Harmsworth v the State Coroner [1989] VR 989.

155 Harmsworth v the State Coroner [1989] VR 989.

156 Waller’s, Coronial Law and Practice, 4th Ed., 81.19.

157 Death Investigation and the Coroner’s Inquest, Freckleton and Ranson, Oxford University Press, Melbourne 2006, 548, cited in the Lindt decision at [16].

132. Further, it is appropriate to recognise (as did State Coroner Barnes in the Lindt decision) that a Coroner may need to investigate matters wider than the issues on which they will ultimately make statutory findings. In Atkinson v Morrow [2005] QSC 92 Mullins J stated:158 “That the scope of the inquest is for the purpose of establishing those matters (the findings) does not limit the evidence to that which is directly relevant to those matters. It is obvious that it may be necessary for evidence of a broader nature to be adduced before the coroner for the purpose of assisting the coroner to reach a conclusion on the specific matters on which findings are required”.

133. Similarly, in Doomadgee v Clements,159 in referring to the provisions in the Queensland Coroners Act160 (s. 45) that correspond to s. 81 of the NSW Coroners Act, Muir J held that the scope of the inquiry under s. 45 is extensive and not confined to evidence directly relevant to the matters listed in s. 45(2).

134. It clearly emerges from the principles and authorities referred to above that an issue does not need to be directly causative of the death to be within the permissible scope of an inquest. It is clear from the authorities that “manner” has different content to “cause” and, in appropriate circumstances the exploration of manner may go beyond exploration of causative matters.161

135. This is consistent with the wording of the Act, and the Coroner’s obligation to conduct a thorough investigation and pursue reasonable lines of inquiry to determine in what circumstances the death occurred. As Deputy State Coroner O’Neil stated recently in Winchester, “[t]here is a significant public interest in the Coroner conducting a thorough public inquiry”. The importance of a thorough investigation for a death that occurs in custody is highlighted by the legislative provision that an inquest into a death in such circumstances is mandatory.

136. The scope of an inquest depends on all the circumstances of the case and requires the coroner to exercise discretion and to use “common sense” in determining the line beyond which it is not appropriate to inquire.

158Atkinson v Morrow & Anor [2005] QSC 92 [30], cited by State Coroner Barnes in the Lindt decision at [18].

159 [2006] 2 Qd R 352.

160 Coroners Act 2003 (Qld) 161 A point made by Coroner O’Neil in Winchester at [88].

137. I accept the submission made by Counsel Assisting that it is within “a common sense test” and not beyond the scope of my jurisdiction, to look at the circumstances in which Ms Shipley came to be in custody.

138. On 20 December 2022, 11 days after Ms Shipley was arrested by NSWPF officers and entered custody, she died in the MSU at SWCC, ostensibly from complications arising from her mental illness. The institution of the NSWPF had information about Ms Shipley’s history of mental illness, including her recent mental ill health, and had recorded that information, although, for reasons I wish to inquire into, that may not have been known to the relevant officers who were involved in dealings with her on 9, 10 and 14 December 2022.

139. I am satisfied that an examination of the events that led to Ms Shipley’s arrest and imprisonment in December 2022, including her likely mental health condition at the time and examination of the appropriateness or otherwise of the NSWPF’s interactions with Ms Shipley (including on 9, 10 and 14 December) is within permissible scope of this inquest and as such within jurisdiction.

140. At paragraphs [97]-[105] above, I have summarised the argument of Counsel Assisting in relation to the ways in which the information sought from the NSWPF is relevant to the ‘manner’ of Ms Shipley’s death, or in other words, the circumstances surrounding her death.

141. I accept that the interaction between members of the NSWPF concerning Ms Shipley are within my jurisdiction. Specifically, I accept that there are legitimate lines of inquiry in relation to: a. First, with respect to the interaction between members of the NSWPF and Ms Shipley on 9 December 2022 when Ms Shipley came into custody. Although it is understandable that NSWPF officers dealing with her did not immediately recognise that she was mentally ill or mentally disordered, it is not clear to me why the custody records were marked as if she had no history of mental illness when the NSWPF as an institution had numerous and recent dealings with Ms Shipley where she was mentally ill, and her history of mental illness was well documented on NSWPF records.

b. Second, on 10 December 2022 when a police prosecutor appeared to assist the bail Court, the records handed to the Court by the police prosecutor do not refer to Ms Shipley’s mental health issues and there is no mention of that important fact in Court. Ms Shipley appeared in Court unrepresented and declined to apply for bail, in circumstances where she may have been too mentally ill to make any informed decision in relation to representing herself or applying for bail. I note that she was not bought before the Court on 11 December 2022 and received a medical certificate deeming her to be too mentally unfit to attend court on 12 December 2022.

c. Third, on 14 December 2022, Ms Shipley was again before the Court.

Again, she represented herself and so did not have any advocate there to assist her, or to assist the Court on her behalf. An audio recording of her Court appearance reveals that Ms Shipley was able to inform the Court about some aspects of her mental ill health. The NSWPF Criminal History Bail Report stated that Ms Shipley had conditional bail on another matter (H76115633). The Magistrate then sentenced Ms Shipley for the offence before him and determined that as far as he was concerned, she would be released from custody, but his Honour did not know, and was not informed by the police prosecutor, that Ms Shipley no longer had bail on the offence under H76115633, a minor shoplifting charge. Contrary to the apparent intentions of the Magistrate presiding on 14 December 2022, Ms Shipley was further detained and died in custody 6 days later in circumstances where (according the expert panel of psychiatrists) she could not get adequate treatment for her mental health condition and died as a result of it.

142. I also accept that there are matters related to the circumstances in which Ms Shipley came to be in custody that may be the subject of recommendations aimed at preventing the loss of life of others in a similar situation. Tragically, deaths in custody are all too common in the Coroners Court in this State, and Aboriginal people in particular continue to be overrepresented in the numbers of deaths. They are not just numbers to the families of loved ones grieving deeply for their loss and striving to understand if there are lessons to be learnt that might

save other families from experiencing that grief. As Counsel Assisting said in her opening of this inquest: ““[W]e recognise that this inquest is one of too many where the Coroner is tasked with investigating the death of an Aboriginal person in custody.

Thirty years on from the Royal Commission into Aboriginal Deaths in Custody, Aboriginal people are still massively over-represented in prisons in New South Wales and around the country. And we know that it is a source of pain for [Ms Shipley]’s family and to many other Australians. It is important to understand why [Ms Shipley] was in custody …”162

143. It will be evident from this ruling that I reject the submission of Counsel for the Commissioner that one reason I should not inquire into the circumstances of Ms Shipley’s court appearance on 14 December 2022 is that I could not be satisfied that a NSWPF prosecutor was present (or at least available) to assist the Court on 14 December 2022. The Commissioner asserts that it would be unsafe to make a finding in relation to the prosecutor being present on the basis of the information available to me at this time. It is clear from the Court papers that the name of a particular person was recorded on Ms Shipley’s papers as someone who was the prosecutor in the matter. I have taken judicial notice of the fact that criminal matters should not proceed in the absence of a police prosecutor who is there to, inter alia, hand up the facts and record, and to assist as required. In any event, although the evidence strongly suggests a police prosecutor would have been available to assist the Magistrate on 14 December 2022, I have not reached a definitive conclusion on that issue at this stage. I intend to ask my Counsel Assisting team, and the Officer in Charge of the coronial investigation, to make the further necessary inquiries to clarify, if possible, the role and responsibilities of the prosecutor on that date.

144. Counsel for the Commissioner submitted that where an inquest is entering its “curial phase … there should already have been a substantial investigatory stage by which the Coroner obtains some knowledge of the issues”.163 Counsel for the Commissioner submitted that at the time of the Application “proceedings [were] 162 Transcript 16/10/24 p 3 ln 46 – p 4 ln 2.

163 CoPWS at [30].

no longer at a nascent stage; the curial stage of the proceedings [was] almost complete”.164

145. Clearly there was a significant investigative stage in the Inquest before I commenced the hearing, leading to the production of a substantial brief of evidence, numerous witness statements, a draft issues list and a witness list.

That does not mean, however, that the investigation or inquiry phase must cease when the hearing begins.

146. First, while it is true that a substantial part of the investigating is done before the inquest starts, it is the very nature of an inquiry that some issues emerge as the inquest/inquiry takes place. Unlike criminal cases, where the accused is entitled to know the case before it commences, or a civil matter where there are strict pleadings, an inquest is a jurisdiction that allows for an investigation, consistent with the “objects” of the Act set out in section 3.

147. Second, there is a good reason why courts have warned against prematurely determining all the issues before the hearing has commenced, since evidence being exposed and explored during the inquest may lead to certain issues being refined, or revealed, while others fall away. In the case of Doogan, cited above (and often during discussions on scope), the ACT Supreme Court stated that “[e]ven when the inquiry has been formally convened and evidence is being adduced, the coroner may still be engaged in an investigation of potential issues, the scope of which will not have been defined by pleadings. Issues may continue to arise and be progressively clarified and refined …”. Similar comments were made by the Northern Territory Supreme Court in Bauwens, cited above. I accept, as Counsel for the Commissioner has said, that these are not binding authorities, but they are decisions that accord with a sensible reading of the relevant legislation, and a proper understanding of the nature of the coronial jurisdiction.

148. Third, one of the very reasons for some of the unanswered questions at the commencement of this inquest is that the NSWPF declined to provide the policies and procedures requested by the CSO on my behalf and declined to provide a statement of a senior officer. Instead, the Commissioner bought this application.

164 CoPWSR at [8.3].

I am not critical of the decision to bring the Application, but it can hardly be suggested that my curial stage is almost complete, when I do not yet have all the information that I have sought to inform me.

149. Fourth, this case is an excellent example of the way in which some matters crystallise during the course of an inquest, while others assume less significance.

It became increasingly evident to me that there may be real systems issues revealed by Ms Shipley’s appearances at Court on both 10 and 14 December 2022.

150. A review of the custodial records shows that Ms Shipley was extremely mentally unwell when she left NSWPF custody and entered into the custody of CSNSW on 9 December 2022, and she remained mentally unwell until her death 11 days later. Yet on 10 December 2022, a day after she was taken into police custody, she appeared in the bail court unrepresented in circumstances where it is appears on the face of the transcript that the Magistrate was not informed of her mental health issues. The police prosecutor present makes no mention of her mental health issues. On 14 December 2022, Ms Shipley herself told the Magistrate of some of her mental health troubles and he sentenced her in a way that he said would allow her to leave custody. It is obvious from the face of the record that his Honour believed she had bail on another minor shoplifting charge and could be released. Again, Ms Shipley was not legally represented by someone who could advocate on her behalf.

151. As Counsel Assisting has repeatedly sought to emphasise, inquests are not adversarial and the inquiries directed to the NSWPF are not aimed at criticising its members, but rather at identifying opportunities to improve the care of persons who come into the custody of the NSWPF or CSNSW.165 165 See for example Transcript 16/10/24 p 22 ln 16-19.

Orders

152. The Application is dismissed.

Magistrate Teresa O’Sullivan State Coroner Coroners Court of New South Wales 16 January 2025

ANNEXURE "A" Inquest into the death of Tammy Michelle Shipley CSO Ref: 202203874 | Court Ref: 2022/384929 Unofficial Transcript1 Parramatta Local Court: Saturday 10 December 2022

• P1: Unknown prosecutor #1

• M1: Unknown male #1

• M2: Unknown male #2

• MA: Magistrate

• TS: Tammy Shipley Timestamp Name Transcription 0:11 P1 Are you with one of these? Are you Ms Shipley?

0:13 M1 No.

0:14 M2 No.

… … (Paper shuffling and discussion re other matters) 2:52 MA Right, is this Ms Shipley?

2:54 TS Speaking.

2:55 MA Right Ms Shipley I’m told your representing yourself, is that right?

2:59 TS That’s right.

3:00 MA Right are you applying for bail today?

3:02 TS Um yes.

3:03 MA Right, um, I’ll read the facts and records Sergeant.

3:06 P1 Yes your Honour, I’ll hand up those.

3:08 MA Thank you.

3:09 TS Yeah no I don’t want bail.

3:11 MA You don’t want bail?

1 Unofficial Transcript prepared by the NSW Crown Solicitor’s Office. To be considered an aide-memoire to the audio recording..

3:12 TS No I don’t want bail.

3:15 MA So you want to stay in custody?

3:16 TS Yeah I want to stay in custody.

3:18 MA Alright. Sergeant what’s the proper venue for this?

3:22 P1 Ahh, Campbelltown your Honour.

3:24 MA Alright I’ll have your papers… 3:26 TS Why am I in the Children’s Court?

3:28 MA Pardon?

3:29 TS Why am I in the Children’s Court?

3:30 MA Because that’s where we do the Bail Court from, you’ll be at Campbelltown on Monday alright. That’s Monday the 11th of December and you’ll be on screen there nice and early in the morning I hope alright. Thanks Ms Shipley you can go outside the room now.

… … (no speaking) 3:56 MA In relation to the detention application I’ll simply mark it not challenged.

4:00 P1 Yes your Honour.

ANNEXURE "B" Inquest into the death of Tammy Michelle Shipley CSO Ref: 202203874 | Court Ref: 2022/384929 Unofficial Transcript1 Campbelltown Local Court: Wednesday 14 December 2022

• MA: Magistrate

• TS: Tammy Shipley

• F1: Unknown female #1 Timestamp Name Transcription 00:00 MA … lawyer is that correct?

00:01 TS No that’s correct, I just wanna represent myself, I shouldn’t really be here I made a mistake.

00:05 MA Okay, that’s fine. Um, you’re entitled to represent yourself. Now, Ms Shipley I have two charges before me today, and I’m gonna read those charges to you and ask you whether you can enter a plea of guilty or not guilty to the charges.

00:22 TS Yep.

00:23 MA The first, first charge alleges that on the 9th of December this year, at Macquarie Fields you did without lawful excuse enter into the inclosed lands of Glenquarie Town Centre, situated Harold St Macquarie Fields without the consent of the Glenquarie Town Centre, the owner of the said inclosed lands. I, I’m assuming what that means is that you had a banning notice from there...

00:46 TS No I was only banned from Target I wasn’t banned from the mall.

00:50 MA Yeah well it, it, it says here, the whole Glenquarie Town Centre… 1 Unofficial Transcript prepared by the NSW Crown Solicitor’s Office. To be considered an aide-memoire to the audio recording.

00:56 TS I, now, I am now um banned from the mall but at the, at the time I was only banned from Target, and I did go into Target.

01:04 MA Oh okay, you did go into Target so you… 01:06 TS Yeah I just wanted to get some clean clothes because I had a daughter at home and her, and her baby detoxing from Ice and I just wanted some clean clothes for us.

01:14 MA Okay, so you’re pleading guilty with an explanation are you?

01:17 TS Yep, yep.

01:18 MA Thank you. I’ll note that. And the second charge alleges that, on the 9th of December this year at Macquarie Fields you did steal certain property, the value of 23 dollars 10 cents. Namely a rolling pin, kitchen knife and a 70, 750ml bottle of olive oil, olive oil the property of Woolworths. How do you… 01:41 TS Yep.

01:42 MA …plead to that?

01:43 TS Yep guilty.

01:44 MA Thank you. Now I’m gonna have a look at the, the facts and your criminal record now and I’ll… 01:51 TS Yep, thank you.

01:51 MA …see whether I can finalise it now or not.

01:56 TS I hadn’t had any, can I just say I hadn’t had any Bupe for a week and I went into like a small psychosis, and I … 02:01 MA Okay.

02:02 TS …I thought someone was after me and I wanted to just be safe so I went to Woolworths to get charged.

02:06 MA Okay.

02:07 TS So I could come here and be safe.

02:08 MA Okay well I’ll… 02:09 TS And I’m alright with my head now.

02:11 MA Okay, well I’ll just read these and I’ll hear what you’ve got to say.

02:15 TS Okay thank you.

02:16 MA Um, I think I can say safely those other matters two o’clock.

02:21 F1 Thank you your Honour.

… … (Discussion continues re another matter) 03:00 … Silence 03:32 TS Sorry your Honour I was, um in, I was barred from the mall.

03:35 MA Yeah that’s, that’s alright, I’ve just read the facts. That’s Okay.

03:38 TS Yep.

03:39 MA When you went in there they’ve, they’ve barred you from the mall then you went back in.

03:42 TS Yep, yep.

03:43 MA Thank you.

03:47 TS Because I felt unsafe in the community.

03:49 MA Okay.

03:50 … Silence 04:06 TS I’m really hoping to get home to my granddaughter detoxing off Ice.

04:12 MA Okay, just let me have a look. I’m reading your criminal record now.

04:16 TS Yep thank you.

04:17 … Silence 04:54 MA Okay.

04:56 … Silence.

05:09 MA You’ve been in custody since err, you were arrested at 6pm on the 9th of December, correct?

05:17 TS 9th of December?

05:19 MA 9th of December you were arrested and you’ve been in, been in custody since.

05:24 TS Ah yeah this, yeah, yep that’s correct.

05:31 MA So that was last Friday.

05:32 TS Yep, that’s correct.

05:41 MA Okay.

05:42 TS The pretty much reason why it all happened is because I didn’t have the money to pay for my Bupe and it sent me into like a little psychosis.

05:49 MA Okay, it looks like you… 05:52 TS So from here, from here I’d go straight to the doctors and get straight back on it.

05:56 MA Okay, you were out of, out of trouble for about 6 years and then you had a… 05:59 TS Yep mmm.

06:00 MA …a, a larceny here on the 5th of October… 06:04 TS Yep.

06:05 MA …where, where you got a fine in Court and you… 06:07 TS Yep.

06:08 MA …you’ve got these two larcenies and two trespasses from the 9th, okay… 06:14 TS Yep.

06:14 MA …one of them’s already listed for the 12th of January next year where you… 06:17 TS Okay.

06:17 MA …were given bail and you went back to the shopping centre.

Correct?

06:21 TS Okay. Yep… Oh wha, what was that? I, I thought that got heard in my absence.

06:29 MA Ahh… 06:30 TS Do I go back to court on the 12th of January?

06:32 MA 12th of January it says, yeah.

06:34 TS Oh I didn’t know that, okay.

06:35 MA Okay, well hopefully… 06:37 TS Alright.

06:38 MA …you remember that now.

06:39 TS Yeah I will.

06:40 MA Umm... Well trespassing it only carries a fine. I’m gonna find you $100 for that.

06:50 TS Yep, thank you, your honour 06:53 MA And the… larceny (inaudible).

06:57 TS Shoplifting was just to get, that was just to get clean clothes for my family to put on because my daughter and my granddaughter just come home from hospital detoxing off Ice… 07:05 MA Well..

07:05 TS …I just wanted them to feel clean

07:07 MA …I’ll tell you what I’m gonna do. I’ll take into account you’ve spent ah… into account… you’ve spent 9, 10, 11, 12th, 13th, 14… ah what’s today, the 14th, so you’ve spent 6 days in custody, I’ll take that into account… I’m gonna put you on a CRO, Conditional Release Order for 12 months, okay.

07:39 TS Thank you your Honour… 07:39 MA So… 07:40 TS …thank you so much.

07:40 MA …that says no offences, so… 07:42 TS Yep.

07:42 MA …you can’t commit any offences and you gotta… 07:44 TS Yep.

07:45 MA … come to court if you get a notice. So do you understand all that?

07:48 TS Yes I do your Honour.

07:49 MA Okay, now, as far as I’m concerned, that should mean you’ll be released.

07:55 TS Thank you your Honour.

07:56 MA Okay, thank you, you can go.

07:57 TS Yep, thank you.

08:10 … (Next matter heard)