Deceased
Shane Bennett
Demographics
19y, male
Coroner
Coroner Peter White
Date of death
2008-03-17
Finding date
2012-03-23
Cause of death
Closed brain injuries sustained in motor vehicle accident
AI-generated summary
A 19-year-old male died from closed brain injuries sustained in a motor vehicle accident while being pursued by police. The deceased was driving an unregistered vehicle with false number plates through a 60 kmph zone toward a traffic-controlled intersection. Police vehicle Frankston 615, driven by an inexperienced officer (Silver-class licence holder) with a Gold-class supervisor as passenger, pursued at excessive speeds reaching 177 kmph. After the pursuit controller ordered abandonment at 00.02.53, the police vehicle failed to properly disengage and continued forward at reduced speed. The deceased collided with another vehicle at the intersection at approximately 86 kmph. Critical failures included: inexperienced driver at the wheel contrary to controller expectations; failure to report actual speeds to the controller; failure to acknowledge abandonment direction; continuation of pursuit despite speeds vastly exceeding the zone limit and approaching a busy intersection; inadequate risk assessment by both officers; and post-incident investigative delays and discrepancies in police statements.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
les)
Court Reference:
Form 37 Rule 60(1) Section 67 of the Coroners Act 2008
(Amended pursuant to s76 of the Coroners Act 2008 on the 3rd April, 2012)*
Inquest into the Death of SHANE BENNETT
Delivered On:
Delivered At:
Hearing Dates:
Findings of:
Representation:
23 March 2012
Coroners Court of Victoria Level 11, 222 Exhibition Strect Melbourne 3000
1 to 4 August 2011
8 to 10 August 2011 15 to 19 August 2011 22 August 2011
23 August 2011
31 August 2011
19 September 2011
Mr P Lawric, Counsel for Chief Commissioner of Police
Mtr A Lewis, Clerk Foley for VicRoads
Mr R Gipp, representing Pursuit Members
Ms F Badali, Gadens Lawyers, representing ESTA
Mr R Taylor, DLA Piper, representing Motorola Solutions Mr S Russell, representing Trimble Navigation Australia
Mr P Rozens and Mr Southey on the instructions of Gadens, Lawyers, Counsel for Emergency Services Telecommunications Authority (ESTA),
Mr Cashen on the instructions of Kelly Hazell Quill, Lawyers Counsel for the Merald and Weekly Times,
Counsel Assisting the Coroner: Mr T Burns of Counsel, on the instructions of Meridian Lawyers, (Mr T Katz)
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1132/08
I, PETER WIITE, Coroner having investigated the death of SHANE BENNETT
AND having held an inquest in relation to this death on 1 to 4 August, 2011, 8 to10 August, 2011, 15 to 19 August, 2011, 22 and 23 August, 2011, 31 August, 2011 and 19 September, 2011
at Melbourne, sitting 16 days
find that the identity of the deceased was SHANE BENNETT born on 2 May 1988
and the death occurred on 17 March 2008
at The Alfred Hospital, Commercial Road, Melbourne 3004
from: la, CLOSED BRAIN INJURIES lb. MOTOR VEHICLE ACCIDENT
in the following circumstances: Background
1, Shane Bennett,! born on the 2nd of May 1988, was brought up in a closely-knit and loving family in New Zealand. He was the third of cight children. His siblings include Arron, Jason, Jamie, Chelsea, Nicole, Phoenix and Ethan. Shane had come to Melbourne to live in September of 2007 and initially resided in the Frankston area with his clder brother, Arron (Bennett),* who had arrived some four years earlier.
2, At the time Shane had, ‘started to get into a bit of trouble in New Zealand ,... mostly for driving to jail. Between the three of us, we decided that he would move here with me to start again, We wanted him to get out of the environment that he was in and he needed a change of lifestyle. Australia would be much better for him and me being his elder brother would be able to keep him in line far better than mum could.’3
3, Just after midnight on Sunday, 16 March 2008, Shane was involved in a motor vehicle accident with another vehicle at the intersection of Frankston-Dandenong Road and Seaford Road, Seaford.
Shortly before the collision, Shane had been pursued by two police vehicles, who had attempted to intercept him as he had been observed committing traffic offences.
4, Mrs Dianne McCready, the other driver involved in the collision, suffered extensive and life threatening injuries [rom which she has made a partial recovery.
Shane suffered critical injuries and was admitted to The Alfred Hospital at 1.38am on 16 March
Despite medical attention, he died in the afternoon of Monday, the 17th of March 2008. Shane was 19 years of age at the time of his death,
E Referred to as Shane in this finding
2 Referred to as Arron in this finding.
° See statement of Arron Bennett Lixhibit 1 page 1. Sce also Exhibit 27B, Shane’s NZ conviction history. (Shane had no criminal record in Australia), As (o Shane Bennett’s state of ound when applying for his Victorian license, sce irauscript at page 28,
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INVESTIGATIONS Purpose of the coronial investigation
The primary purpose of the coronial investigation of a reportable death is to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which the death occurred.> The practice is to refer to the medical cause of death incorporating where appropriate the mode or mechanism of death, and to limit investigation to circumstances sufficiently proximate and causally relevant to the death,
Coroners are also empowered to report to the Attorney-General on a death they have investigated; and to comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice; and empowered to make recommendations to any Minister, public statutory or entity on any matter connected with the death, including recommendations relating to public health and safcty or the administration of justice.
The focus of a coronial investigation is to determine what happened. By ascertaining the circumstances of a death, a coroner can identify opportunities to help reduce the likelihood of similar occurrences in future,
The Evidence
Medical investigations
Dr Paul Bedford, Pathologist, Victorian Institute of Forensic Medicine, conducted an autopsy and determined the cause of death as 1 (a) Closed Brain Injuries and 1(b) Motor Vehicle Accident.
A Toxicological Report following an analysis of Shane’s blood, taken on the 19th of March 2008 indicated the presence of A9-tretrahydrocannabinol (6ng/mL), which is also referred to as THC.7 Dr Morris Odell, Forensic Physician, stated that levels of THC above about 4-5 ng/mL are evidence of consumption of cannabis within the preceding two or three hours. He further stated that:
a. Shane was driving after having used cannabis at an indeterminate time prior to the collision; b. Shane had a low blood THC concentration by the time the blood sample was taken, about 110 minutes after the collision;
4 Section 4 of the Coroners Act 2008 requires certain deaths to be reported to the coroner for investigation, Apart from a jurisdiction nexus with the State of Victoria, the definition of a reportable death includes all deaths ‘hat appear “to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, (rom accident or injury."
5 Section 67 of the Cororiers Act 2008.
6 lions /2(1), /2(2) and 67(3) of the Coroners Act 2008 regarding reports, recommendations and comments respectively.
/ “PHC is a metabolite of cannabis.
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c, Shane’s THC level may have been higher at the time of the collision but it is not possible to calculate or estimate what it might have been; and
d. Shane’s driving skills may have been adversely affected by the effects of cannabis at the time of the collision, ;
Shane’s history in the months before his death
On the 23rd of November 2008, Shane was able to use his New Zealand drivers’ licence .to obtain a Victorian licence, At the time of making his application, he knew that his New Zealand licence had been disqualified, but he did not disclose that matter to Victorian authorities.8
Arron testified that his brother was optimistic about his future at the time of his death. Shane had obtained a job as a welder in a truck body business, within two days of his arrival in Australia, ‘which he loved... He was getting his life together and settling dowa well’. ?
About two to three months after his arrival, Shanc left the home he had previously shared with Arron and Arron’s fiancé, after some difficulties arose when a friend had arrived from NZ seeking accommodation. Thereafter he moved into a new accommodation in nearby Seaford from where he remained in close contact with his brother.
Under further examination, Arron testified that his brother was known to have a history of regular carmabis use! and that his general feeling towards police, whether under the influence of cannabis or not, was one of general antagonism. ! |
The 14th, 15th and 16th of March, 2008
On Friday the 14th of March, two days before his death, Shane purchased an unregistered second-hand red Mazda 323 motor vehicle.!2 The vehicle in question was lawfully sold without number plates.
Shane was excited about the purchase of his first car in Australia and late on Saturday the 15th March he brought it around to show his brother, Arron. ‘There were no number plates on it at this time and Arron advised his brother to get it registered as soon as possible. Shane told Arron that he would get it registered on the following Monday.
At approximately 6,30 pm on the 15th March, Shane and his houscmates, Karan Sterling and Dave Hook left Arron’s home, with Shane observed to be in high spirits. According (o Arron, his brother appéared to be sober and his understanding was that Shane, and his friends were going home.
5 Arron Bennett had learnt from his mother that his brother's license was disqualified, before he left NZ. See also Exhibit 27(C), Shane’s Vic Roads license extract and the evidence of Mr Cattapan, the registration and licensing manager at Vic Roads and the discussion of current palicy approaches at Exhibit 24, and from the transcript at page 810, Concerning current licensing arrangements in Victoria see also the discussion at Comment 3 and Recommendation 5 below.
ye Exhibit [ page |. He held down this position continuously until his death,
) See transer ipt at page 26-27.
1 See transcript at page 26.
12 At the time of the fatal collision in the early hours of Suaday the 16th of March, false cardboard number plates, RUX 292, were displayed at the front and rear of the vehicle. See Exhibit 27(A) and the evidence of Sergeant Whitehead,
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19, Thereafter, according to information later received by Arron, (he group returned to their Seaford home and later Shane drove to the home of a mutual friend, Mana Sherman, who also lived in Seaford. !3
Despite efforts to locate the persons referred to, I have been unable to verify what Shane’s movements were until shortly before midnight that night (Saturday the 15th of March), when his vehicle first came to the attention of police in Frankston.
It is relevant Lo note that the toxicological examination undertaken in this case (as noted above), taken together with the observations of his brother that Shane didn’t appear to be under the influence of illicit substances during his visit in the late afternoon, tends to establish that he consumed cannabis, the traces of which were found during examination, at sometime later that evening.
22, The primary focus of the coronial investigation of Shane’s death,!4 including the inquest, as reflected by the witnesses required to attend the inquest to testify, was on the immediate events leading up the collision leading to Shane’s death including the conduct of the police pursuit, in particular, the accuracy of Global Positioning System (GPS) satellite tracking technology and the response of Frankston 615 to the Pursuit Controller’s direction to abandon the pursuit.
24, The Pursuit Controller was Sergeant Kurt Krause, referred to as ‘Hastings 251’.
26, Efforts were made by Frankston 251 to have the driver of the Mazda pull over for enquiry. .
‘These attempts did not succeed as Shane appeared detcrmined to evade police and, as a result, a pursuit of the red Mazda by Frankston 251 commenced.
13 See the (hearsay) evidence of Arron Bennett at exhibil |, page 2.
At the completion of the police investigation and prior to the commencement of the inquest, it was apparent that a number of the facts about Shane’s death are known and were uncontentions, These inelude the deceased’s identity, the medical cause of his death and aspects of the circumstances, including the place and date of his death,
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the participating police officers, and to a lesser extent on the somewhat more fleeting observations of other (civilian) eyewitnesses. During the course of its investigation, however, the Victorian Police Traffic Management Unit obtained evidence which suggested that the statements received to that point, about the speeds and the passage of Frankston 251 and Frankston 615 in particular, may not have been accurate, 16
Torcasio who had monitored the earlier investigation on behalf of the Ethical Standards Department
(ESD), Victoria Police] spoke again with the pursuing officers, with cach officer broadly confirming his earlier version of cvents.
29, Following these developments the Court, through the Investigating Member made attempts to obtain further information concerning the workings and use of GPS satellite tracking technology, with a view to obtaining a better understanding of the accounts of eye witnesses, while also seeking to verify the accuracy of police witness statements concerning speed arid when and where pursuing police vehicles disengaged, 1. the passage of the concerned vehicles.
30, Issues that arose regarding the data included the following:
a. The margin for error in plotting GPS location in two dimensions, ic. on a map and the sky plot tool (dilution of precision).
The effect on the perimeter of and margin for error.
c, The margin for error for measuring instantaneous velocity including the manner in which it is calculated.
d. The integrity of the data transfer between the Motorola Data Terminal and the Motorola databank and the time delay if any and the UTC and GMT time and the effect, if any, this might have on the integrity of the data received.
31, I note that, with the co-operation of all interested parties, the inquest produced a full raft of evidence concerning the use of GPS technology and its level of accuracy (this evidence coming from sources both within Australia and from the United States), which eventually led to admissions as to the accuracy of the technology being made by the four concerned members.
32, T include a summary of this evidence as Attachment A of this finding.!7 The issue of certificates under section 57 of the Coroners Act 2008
under section 57 of the Coroners Act 2008 for certificates of immunity, which applications were granted, without objection. !8
16 ‘Goth the vehicles in question, Frankston 251 and Frankston 615, carricd GPS satellite tracking derived from the Mobile Data Terminals, (MDT), See the animated CD and diagrams prepared for the Investigating Member by Mr Clive Oberin, the manager of Mobile Data Network (MDN), Victoria Police , which disclosed information which (if rue), contradicted in material aspects, the earlier versions offered by the officers concerned, See Mr Oberin’s statement, Exhibit 22 at page 5.
7 This material draws from notes compiled by Instructing solicitor Mr T Katz in consultation with Counsel Assisting the Coronet, Mr A Burns.
8 Sce transcript at page 964 -65 re S/C Orr; transcript at page 1178 re 1.S/C Bednarczyk; transcript at page 451 re Sergeant Whitehead and at transcript at page 1372. re Const Morgan, From this order it follows that the evidence piven by each officer cannot be used to prove any other offence, civil vr criminal, other than in regard to the falsity of that evidence. See Section 57(7) of the Coroners Act 2008.
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a) Daybook note 16/3/08
intersection), where he collided with a vehicle. I then continued up to the scene and observed the collision,’ 19 ,
b) Running sheet MDT entry made in vehicle outside station early am, 16/3/08
running sheet of the incident.20
And about the attendance at the accident scene of the pursuit controller, Sergeant Krauss, and his senior, a senior sergeant from Pakenham, together with fire and ambulance officers and representatives of the Major Collision Investigation Unit and the Ethical Standards Department.
I note that in his MDT running sheet (written up in the presence of L/S/C Bednarczyk), on his vehicle computer terminal, outside Frankston station, following his return he stated that,
‘Pursuit abandoned on Seaford road approx opp. Pulled_ever_and observed vehicle drive through red tcs into another vehicle. Continued to scene,’
c) Police statement 17/3/08 2!
Later, he came to drive the vehicle back to the station where.they heard about the pursutl, which was close to their current location.
‘and swing wide across the road onto the wrong side of the road.’24
19 See transcript at pages 975-976, as read from his daybook note Exhibit 31A, See further examination on this entry by Counsel assisting the Coroner discussed below, See alsa the internal switching pane! controlling lights and siren within Bhotographs at Exhibit 3B,
See the ‘IMU Mobile Duty Return Tasking Sheet prepared by LS/C Orr at exhibit 31D.
21 See Exhibil 31.
22 LSC Bednarezyk was described by S/C Orr, as a gazetted member of the Frankston TMU and the holder of a gold class classitication. He further testified that if was his passcnger’s duty to.operate the vehicles’ radio, See transcript at page 988.
23° See Exhibit 3] page 2.
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L/S/C Bednarezyk advised the pursuit controller that they were in position as a secondary unit and the controller then requested that they become the primary vehicle in pursuit.
Thereafter, they overtook Frankston 251, becoming the primary pursuit vehicle while two other vehicles pulled over to their left to allow Frankston 615 to pass. They then travelled to ’within approximately 25 metres’ (of the red Mazda), which was travelling at the speed of 120 to 130 kmph.
42, They travelled 500-700 metres as the primary vehicle along Seaford Road before hearing the controller terminate the pursuit, following which he, ‘nurned off the flashing lights and siren and slowed down pulling over to the left still watching the red hatch,2+ estimating that he pulled over at around Sussex Crescent, ‘which is still 350 to 400 metres’ from the intersection.’
‘I saw the red hatch travel a distance in the air and a ball of flame emit from it, I then accelerated the police vehicle to the scene and parked on the north side of the centre of the intersection. ’29
d) Court room testimony from 16/08/2011
44, Under questioning from his Counsel, Mr R Gipp, S/C Orr first testified about his service and about being three months into a 12-month secondment to the Frankston TMU, at the time under consideration and that he had been the driver in a police pursuit, on two previous occasions.26
| He was then called upon to read out his daybook entry made at 4.30am on the 16th of March, which he made at the scene and about the later ‘hot debricf,’ which occurred at Frankston station.
S/C Ore gave evidence about conversations with L/SC Bednarezyk concerning the question of whether he had stopped or not. He stated that he now had no recollection of discussing this matter with L/S/C Bednarezyk earlier, but did discuss it with him during inquest preparation when informed by his legal advisers that it was likely to be a matter of interest to the Court.
47, In answer to Mr Gipp, S/C Orr also testified that he now had no recall as to whether he had come to a complete halt or not.27
. kept an eye on the speedometer (on the Nepean Highway), viewing it on at least three occasions while maintaining his speed within his 150kmph speed limit.29
24 Bxhibit 3£ page 3.
23 Thid page 3.
26 Transcript page 973.
27 See transcript at page 977,
® See trauscript pape 996.997.
29 Sco (ranscript page 998.
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49, Mr Gipp then further questioned S/C Orr with reference to the plotting of speed, concerning his driving on the Nepean Highway between 12.01.27 and 12.01.54, which suggested that he drove at 163 kmph at 12.01.27 and 161 kmph at 12.01.30, His evidence was that he disagreed with these speeds but agreed that it was possible that he might have hit same when he was not looking at his speedometer.
51, _His further evidence was that he carried out a risk assessment and considered the spced limit of 60 kmph along the whole of Seaford Road; the fact that the offender had run two red lights; the fact that the other vehicular traffic was light and the offender’s apparently (good) level of control over the vehicle in question as well as the favourable weather conditions that evening 52
32, S/C Orr testified with respect to his suspicion that the driver had committed a more serious offence, which was the foundation for his wanting to get away.33
33, 9 Mr Gipp then asked S/C Orr about his speed at the point of overtaking Frankston 215 (‘7 can’t recall,’) and about his speed at 12.02.42, the potting point before Brunel Drive with GPS instantaneous speed of 148 kmph, (‘it’s certainly a possible speed.’)
‘T don’t recall that, no. a4
55, It was common ground that thereafter (from the plotting point for 12.02.45), Seaford Road becomes a long straight road up to and including its intersection with the Frankston-Dandenong Road, and beyond.35 :
‘to take up a position behind and keep an equal distance and measure speed’.
Did you do that?
I closed the gap (to) around 20 to 25 metres.
When you reached that point ... (where were you)?
It was definitely after Wicklow and possibly just prior to Elisdon ...,
‘T didn’t look at my speedo. No I can't recall,’ 36
30° See Exhibits 16A and 22B and discussion from transcript page 998-999,
31 see transcript al page 1005,
32 See transcript 1005-1009,
“9 See transcript page 1010 and the discussion at the footnote to paragraph 215 below,
34 Sco transcript al page 1020.
35° See exhibit 22R which shows the times plotted from Frankston 615 and fhe second page of exhibil 16A re the vehicles speed.
36 See transcript page 1021-22. By refercuce to the GPS plotting for Frankston 615 (exhibit 16A), we kuiow that 615 began to decelerate from his maximum speed of [’//kmph, between Wicklow and Elisdon.
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S/C Orr’s further evidence was that his estimate of speed during the catch up phase was, ‘up to 150kmph was ‘an approximate’.
Mr Gipp: But your evidence is you never saw your speedo?
‘Correct’.
So it's a guess?
‘Yes.’ And further in regard to the plotting point between Wicklow and Elisdon at 12.02.54, Me Gipp: That indicates an instantaneous speed is 177 kph.
Yes.
Q. Do you not having looked at your speedo, do you concede that you may have reached those speeds as part of the catch up process?
walt was certainly possible ....
OQ When you reached the back of the Mazda, 20 to 25 metres, did you slow your vehicle down?
Tt was very close to the termination of the pursuit, yes,’37
S/C Orr’s further evidence was that he had estimated the Mazda’s speed at between 120-130
kpmh, but couldn’t say where the Mazda was at this time, though not when he reached a position 20-25 metres behind,
S/C Orr further testified that he abandoned the pursuit upon receiving direction from the pursuit
controller, this occurring at 00.02.53, (shortly before his maximuin speed was reached). From this point he testified that,
Turned the flashing lights and siren off... just gradually slowed,-
I would say within 3-5 seconds approximately after the word abandon has come across that my speed decreased significantly. 36
‘. I would estimate I was around Elisdon Drive when I heard the call and then within 3 to 5
seconds of that which would put me sort of between Prince and Henry Streets, where I’ve sort of
braked more significantly. ’39
37 Tid 1022-23.
8 See transcript at page 1025.
See tauscript al page 1026,
From exhibit [6A speeds, and the 22A, 615’s plotting points we can see that 615’s maximum speed 177kmph was reached
00.02.54, and that vehicle speed reduced from 169 kmph to 135 kmph between 00.03.00, and 00.03.03, between Prince and Henry, and then to 72 kinph by 00.03.09, when 615 was situated between Sussex aad Bellview, ard thea tu 34 kirph, (iis
some 25 seconds after the controler had ordered abandonment).
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Mr Gipp: Q: ‘I'd like to try and pinpoint, where it was that you slowed the vehicle right down, pulled over to the left and as you say you had yirtually come to a halt but you hadn’t actually stopped?
Near Sussex Crescent just between Henry and the next street down from Henry.
Q: So is it your evidence that at the time you reached Sussex Crescent you had virtually come to a stop?
Yes 4
S/C Orr further explained that he then saw the collision at the intersection (this from Sussex), and that he immediately accelerated to get to the collision and render assistance. His further evidence was that it was 10-15 seconds after seeing the collision that he arrived at the collision scene, and that he did not turn back on the blue/red flashing lights and siren during this time.
Thereafter S/C Orr and L/S/C Bednarczyk assisted the parties and notified emergency services.
A further record was made concerning the later theft of a flare from the collision scene at around 2.40am, and the fact that two males were taken back to Frankston in connection with this matter and a subsequent incident of, ‘hindering police and resisting arrest.’
66, S/C Orr also testified as to his return to the Frankston Police Station and of his conversation with Senior Sergeant Torcasio, alter clearing the collision scene at 3.07am, and of a debrief which took place, at that time,43
67, S/C Orr was also then questioned about a further ‘debriefing’ which took place at the Frankston Police Station on the 2nd December 2008, and of being shown an animation CD, by Inspector Talbot which incorporated the D24 transcript and plotting maps, discussed in evidence. S/C Orr understood that the purpose of this meeting was to provide members with an opportunity to clear up inconsistencies between their earlier statements and the maps and animation CD. He believed that Exhibits 16B, the CD and 16A, 31E, and 31F, which concerned the plotting of the path and speed of Frankston 615, and Frankston 251, may have been the documents shown to him. :
40 See transcript pages 977 and 1027-8.
See transcript page 1027. Lnote here that Sussex is situated approximately half way between the plotting points for 615 taken at 00,03.03 (speed 135 kmph) and 00,03,09, (speed 72kmph), If correct it follows that during this 6-second period, $/C Orr slowed from 135 lanph to a ‘virtual halt’ and then witnessed tle accident while at Sussex, and then accelerated to 72kmph, He then slowed again until he came to a stationary position (00.03.42), at the intersection, this slowing including a period of 18 seconds, when he reduced his speed from 72kmph (00.03.09), to 29kmph, (00.03.27).
‘ & See lranseript at page 1029.
1 See transcript at 1041-4,
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T didn’t believe the data I was looking at. I couldn’t accept the speeds that were on the information,
a» 1 made a concerted effort to monitor my speed on the Nepean Highway at 150 prior to engaging at the rear of the pursuit and obviously knowing the upper limitation on my licence I have looked at the digital speedo ..,to ensure I wasn’t exceeding 150, and then to see 163 as the first plotted speed., I didn’t have an understanding as to why it was showing that I was going faster than 150.’
69, S/C Ort, like the other officers present, did not provide a supplementary statement.4+
His view was that that task should have fallen to L/S/C Bednarezyk. He also testified that L/S/C Bednarezyk didn’t have a sufficient opportunity to undertake this task and that there was only 10-15 seconds between hearing the pursuit abandonment tone, and the occurrence of the collision.
71, S/C Orr further stated that it was the task of Frankston 251 to send in speed reports, after Frankston 615 took over as the primary pursuit vehicle.
He was then questioned about the pursuit management ‘prompt sheet (Exhibit 31G), which he had with him at the relevant time, and of his familiarity with the Victorian Police Manual, as it applies to pursuits.
S/C Orr stated that his pursuit of Shane was an elective rather than an imperative pursuit. He further testified that he carried out an ongoing risk assessment in accord with the requirements of the manual, And that the risk he was continuously assessing, had to do with risk to life for himself, as well as to the others involved and whether that risk, ‘outweighed the result to be achieved’
Mr Laurie, Counsel for the Commissioner examination of §/C Orr
74, — S/C Orr stated that his reference in Exhibit 31D to ‘traf light’ might be a reference to either the density of traffic or a traffic light signal. He gave further testimony about the adequacy of his training as the holder of a silver class-driving licence and about the framework, which forms the basis of a pursuit driver’s on going risk assessment.
75, S/C Orr also testified as to why a-tyre deflation device could not have been employed in this pursuil.
Counsel Assisting the Coroner, Mr Burns
In answer to further questions by Counsel assisting the Coroner, Mr Burns, S/C Orr stated that he recognized his duty to tell the truth when making a statement for court proceedings,
He also now agreed that the locations shown on Exhibit 31E and the times shown at the GPS plotting points were correct and he also agreed with the spceds attributed to his vehicle, as set out in Exhibit 16A.
ul Transcript page 1069-1071.
45 See transcript al page 1082-91 on SAC Orr’s evidence as to how he conducted bis risk assessrnent.
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His position was that he did not intend to reach these speeds and was not aware that he had done 50,46 so,
S/C Orr also agreed that when he made his entry in his running sheet, (the mobile duty return), he recorded at 3 minutes and 45 seconds, that he had used the term, ‘pulled over’, and that this term meant that he had come to a stop.47 He also agreed that this was different to his daybook note, (Exhibit 31A), where he stated, ‘slowed to pullover’.
S/C Orr further agreed that in his later statement (Exhibit 31 at page 3), he uses the expression ‘slowed down pulling over’, and further that his statement was made at the Frankston Police Station at or about the same time as those made by his three collcagues also engaged in the pursuit.
S/C Orr further stated, concerning this matter, that he could not remember if he had shown his statement to his colleagues before signing it, and that he was aware that L/SC Bednarezyk had stated in his own statement that he (S/C Orr), had pulled over. He was also aware that Sgt Whitehead and Cons.
Morgan had also stated in their statements that they had seen his vehicle stop.
Mr Burs: Q ‘We now know that your vehicle didn’t stop?
Correct.
O: So you all made a mistake, or all four of you say the wrong thing in your statements for some other reason?
Certainly my statement has been amended to look at the notes that I took on the night 48
S/C Orr was then asked about his meeting with the Investigating Member at the Frankston Police Station on the 2nd December at which the GPS technology and the suggested speeds and passage, were first discussed. He stated that he did not recall whether or not Inspector Talbot had asked him if he had stopped or not.49
He further stated that he did not believe that his statement had conveyed an incorrect impression, and that the focus of Inspector Talbot’s December 2nd inquiry was to do with the accuracy of the (new) allegations, concerning speed.
In further questioning, S/C Orr agreed that his statement (Exhibit 31, page 3), ‘slowed down pulling over to the left’, may have conveyed the impression that he had stopped his vehicle.5®
Mr Burns then suggested that on the 2nd December (at the time of his meeting with Inspector Talbot) that S/C Orr knew that his statement differed from his daybook notes. S/C Orr disagreed, stating that on that day the focus of the conversation was not stopping his vehicle, but the speed at which they travelled.
46 See transcript at page 1103, 47 See tanscript af page 1108-9. This running sheet entry Exhibit 31D, was made back al the police station several hours Tetor,
48 See transcript at page L112.
4 Inspector Talbot testified that be had put this matier, and die question of speed directly to SAC Orr and L8/C Rednarczyk.
50 He also agreed that Mr Bednarezyk had stated in his own statement (hat they pulled over,
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‘.. ay belief when T made my notes was that I didn’t come to a complete stop. That’s sort of reflected quite clear in my notes that I took at the time.
Q: Yes accept that your note is accurate about it.
The question is why didn’t it make its way into the statement?
I don’t know’.
S/C Orr was then further asked why he didn’t make that matter clear to Inspector Talbot on 2nd December and responded that he didn’t recall that, ‘as being a significant matter 31
S/C Orr was questioned about his checking of his speed while on the Nepean Highway. He agreed that he turned into Seaford Road expecting to see the Mazda and Frankston 251 approaching along Railway Parade on his left and that the Mazda entered Seaford Road by going through a red light at that intersection, in front of him, with Frankston 25lapproximately 100 metres bchind. He further agreed with the speeds of both vehicles put to him by reference to Exhibit 16A, as he overtook Frankston 251 that Frankston 251 was decreasing speed (12.02,39-41, See also D24 transcript at exhibit
89, S/C Orr was then asked about his distance (at the time) from the Mazda in front and stated an approximate distance of 100-150 metres and that the Mazda was travelling at 120-130 kmph, And further questioned about the distance travelled at a constant speed of 120kmph, (33.33 metres per second).
91, S/C Orr further confirmed that he responded immediately and disengaged and didn’t wait for the D24 audible abandonment tone to do so, S/C Orr’s further evidence was that he reached his lowest speed at the time of the audible tone.53
Mr Burns Q ’What speed were you travelling when you got to your lowest speed on Seaford Road prior to gelling to the intersection?
wd don’t recall, I didn’t look at my speedo,’ 54
‘So the point where you were nearly stopped travelling 10-15 kmph, it took you another 10-15 seconds where you still hadn’t come to a complete stop? Is that your evidence?
.. i may have been a bit after or a bit before.
31 sce transcript at page 1116, 52 See transcript at page 1127
See transcript page 1131. See also the D24 transcript at exhibit 19B,together with the (agreed) plotted speeds for 615 set out in exhibit 16A. 1 note here that this data tends to establish that in fact 615 was travelling at a speed of 72. kanph at 0Y,03,09, one second afier the audible abandonment tone sounded ai 00,035,08, ot See (ranscript at page 1132,
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O .You’ll agree Senior that that sounds absurd doesn’t it that you nearly stopped?
It does sound absurd, yes, I would agree with that .... The way it sounds I agree with you’?
93, S/C Orr further accepted the suggestion that Elisdon Drive, where he commenced to slow, was a distance of 670 metres from the point of collision. It was also accepted (as earlier), that it would take the Mazda travelling at 120kmph from Elisdon Drive, a period of 20 seconds to reach the scene of the collision.
It was also accepted that based upon S/C Orr’s own estimates concerning the Mazda’s position when the abandonment order was made, (and that the accident occurred within 20 seconds of the order), that the collision occurred at 00.03,17,56
L/S/C Bednarczyk’s suggestion that Frankston 615 pulled over near Prince Crescent, (ie. before Elisdon Drive) was then put to S/C Orr by Counsel ‘Assisting, who did not accept this proposition.
S/C Orr accepted that Henry Street, to the point of collision was 420 metres, and the distance between Sussex and the same point was 319 metres, (the distance between the two being 100 metres).
97, S/C Orr also accepted that the data showed he was travelling at 72 kmph, at 00.03.09, as per Exhibit 16A.
It was further suggested that the collision could not have occurred at 00.03.09 and S/C Orr then accepted that at that time he was closer to Bellview than Sussex and must have been travelling at a speed in excess of 15kmph.
8/C_ Orr was then further questioned about his own position at the point of the accident, earlicr accepted as 00.03.17 and agreed that the data showed he was almost at Ti-Tree at this point, (and one second later measured as travelling at 34kmph).57
Mr Burns: ‘I suggest to you that that was what actually happening?
It’s not my recollection of what occurred’°8
100, He was then asked again where he was at the point of collision.
A ‘Approx Sussex Crescent.
Sull slowing down’?
That’s my recollection - still slowing to about the point of the abandonment tone at 00.03.08 and still not stopped 10 seconds later.
S/C Orr then agreed with Mr Burns that he may have been at most 200 metres from the point of collision, (between Bellview and Ti-Tree), when it occurred,.59
S/C Orr was then asked questions about his post collision travel to the accident scene. Ile agreed that the time taken was about 12 seconds.
»” See transcript at page 1134, 56 See transcript at page 1136, >! See transcript page 1137-38.
38 ibid 1138.
59 See transcript 1138.
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OQ ‘So the suggestion (your Counsel) earlier put to eye witnesses that it might have been longer than a minute is just wrong isn’t it?
.. Well yes it certainly wasn’t a minute, 60
Q ‘The reality is Senior is that you didn’t stop at around the abandonment tone, that you kept going albeit at a much slower pace towards this vehicle?
.f don’t accept that particular statement.
Q Weil you certainly weren’t creeping along at 10 to 15 lanph were you?
No’, 6!
S/C Orr was further questioned about his risk analysis and ‘whether the pursuit endangered the public or the police’, as set out in the VPM, (at Brief 196-97). He stated that he probably would have called the pursuit off before the intersection, having regard to the ‘probability of having people there.’
He was asked about his speeds of 160 -177 kmph being at the ‘high end’ and agreed that he had never driven a police vehicle at such a speed before. He was additionally asked, over objection, about applicable “hoon Icgislation’ and agreed that members of the public may have their vehicle impounded for driving in excess of 45 kmph above the speed Limit.62
He was challenged by Counsel Assisting, in regard to his evidence that he remained unaware of his speed as he drove on Seaford Road. He agreed that there was both an analogue and digital speedo situated in front of him, together with a Motorola screen, and a moving mode radar screen above the Motorola screen, in a central position on the dash.
His further evidence was that he had never previously used the radar screen and did not remember if the radar screen was in the vehicle, or whether it was being operated at the time in question,
S/C Orr stated that on Seaford Road as the primary pursuit vehicle, he wasn’t (able to) pay attention to the two speedometers that he did have access to. And that the pursuit was always an elective pursuit rather than an imperative pursuit with his mind never turning to the latter as a possibility.
109, Under further examination by Counsel Assisting, S/C Orr stated that he was well familiar with the intersection and that at midnight it was reasonable to expect that traffic would be coming and going from the Seaford Hotel. He was aware that there was also a late serving McDonalds store and petrol station at the intersection and that he now knew that there was a lale night pizza store, nearby.
60 See transcript at page 1139,
6] See transcript at page 1140.
62 See transcript and ruling on objection at transcript page 1143-44
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110, S/C Orr was also aware that by this point Shane had run two red lights and he agreed that at midnight the intersection could be busy. :
In response to a suggestion that, in these circumstances and given the Mazda's spced that he should have on his own initiative chosen to abandon, he stated that it was a decision that he could have made, but that having regard to the road the weather, the lighting and his manner of driving, he didn’t perceive, ‘a serious danger.’
S/C Orr, agreed however that the situation was in fact more dangerous than he had realized, and that in such circumstances he should have called the pursuit off earlicr.64
In answer to further questions from the Court, $/C Orr stated that he had not become aware of L/S/C Bedarezyk’s daily report that he had stopped the vehicle until just before the inquest. He was further asked about whether an inference should be drawn from the difference between his daybook note and the subsequent statements of the four attending officers, on the issue of whether Frankston 615 abandoned the pursuit, in accord with the controllers instruction. In response, he stated that in formulating his statement, he had no intention to mislead, S/C Orr stated that he was aware of the manner in which evidence would be collected as part of a coronia! investigation and that he was aware that the management of police pursuits was a matter of public importance.
In response to a further question designed to establish whether the S/C Ort believed the manner of driving of Frankston 615 had contributed to the accident, he disagreed stating that they had abandoned the pursuit, (and) ‘there would have been ample time for Mr Bennett to see that that had occurred and for him to make a decision to slow down and then possibly obey the traffic control or turn left as per the traffic light green urrow.’65
Evidence given by LS/C Bednarezyk a) Daybook note 16/3/08
Emergency lights and sirens turned off + pulled over... word unclear, Obs offending vehicle through red TCS at (intersection). Collision between offending vehicle+ford resulting in fire.
Attended scene... '66
b) Running sheet MDT entry made in vehicle outside Frankston early am on 16/3/08
preparing the cover sheet, 67
¢) Police statement of the 17/3/08,
o4 Sce transcript al page 1153,
55 See transcript at page 1164,
66 See exhibit 33a,
97 Sco transcript al pages 1259-60,
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25-30 metres from the rear of the defendants vehicle. I estimated the defendant was travelling at approximately 120 to 130 kilometres per hour as it continued east...
We have pursued this vehicle for approximately 500 to_700 metres as the primary vehicle, passing iwo civilian vehicles who had already pulled to the left, The pursuit was terminated, I then heard the audible tone to terminate the pursuit. S/C Orr then immediately deactivated our emergency lights and siren, whilst slowing down and pulling over to the side of the road a short distance east of Elisdon Drive near Prince Street.
f continued to watch the red sedan As it continued east I could see the traffic control signals facing the red car at the intersection were illuminated red.which was 350-400 metres from our ‘stationary’ location. 8 I observed the red car accelerate through the intersection against a red light when it then collided head on with another vehicle, ’©?
d) Court room testimony from 18/08/2011
After L/S/C Bednarczyk read his statement to the court (17/3/08), he asked to remove the word ‘stationary’ from page 12, as underlined above.
L/S/C Bednarezyk testified that he had graduated in 1995 and served the next 10 years in general policing duties, transferring to the Frankston Traffic Management Unit, otherwise known as the Highway Patrol, in 2005, obtaining his gold licence qualification in March 2006. Thereafter, from late 2010, he had served in the Frankston Crime Scene Services Unit, having taken over the position in that unit previously occupied by S/C Orr.
. In regard to the events of the 15th and 16th of March, L/S/C Bednarezyk led by his Counsel Mr Gipp, testified that he and S/C Orr, started work at 5.00pm when they were rostered to do a *booze bus’ duty assist, which was subsequently cancelled. Thereafter, following the completion of some paper work, he and S/C Orr went out on patrol, By that time, he had formed a good opinion. of 8/C Orr’s capacity as an officer and as to how he would handle the vehicle, ‘in any situation’ .70
By chance, S/C Orr happened to be driving Frankston 615 when they returned to the Frankston Police Station to write up a report on a motor vehicle accident on the Frankston Freeway. This required an MDT entry to be completed on the vehicle’s computer terminal, before it was driven into the underground car park.
While completing this task in their vehicle outside the station both officers heard the D24 call concerning the ‘Shane Bennett’ pursuit which, at this stage, was heading north on the Nepean Highway.
Inresponse L/S/C Bednarczyk instructed S/C Orr, ‘to gct us there.’
When queried about why he didn’t take over the driving at this point, L/S/C Bednarezyk stated that the changeover might have taken 30 seconds,
08 See below as lo witness secking to remove the word ‘stationary’ from his statement. Sce transcript page 1179.
6? Sev exhibit 33 page 2-3, 19 See transcript at page 1184.
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‘30 seconds can be the difference between us getting to the pursuit or not 7
Further evidence was then given about the passage of Frankston 615 as it joined the pursuit at the Nepean Highway near Seaford as a secondary pursuit vehicle, and how it turned into Seaford and allowed the red Mazda and Frankston 251 to enter off Railway Parade. Thereafter, these vehicles led Frankston 615 up on to the highway overpass on Scaford Road and down to a position where it was again on Seaford Road, a dual lane carriageway heading cast towards the Frankston-Dandenong Road intersection.
At this stage, L/S/C Bednarezcyk was aware of the digital and analogue speedometer(s), within Frankston 615, His further testimony was that he would have to lean over towards the driver to be able o check speeds, which he was able to do,’ and that he so checked S/C Orr’s speed whilst they were on the Nepean Highway, at which time he was doing 145kmph, at ’probably around McCulloch Avenue.’
127, He further estimated that they travelled at maximum speed of around 150kmph before they
unsafe. His further evidence was that they were engaged in urgent duty driving at that stage. -
LS/C Bednarczyk testified that in accord with the GPS plotting he accepted that Frankston 615 was travelling at a speed of 10anph at 00.02.06, as it neared Railway Parade.73
There he saw the Mazda make a left turn against a red light as it entered Scaford Road with, by his estimate, Frankston 251 approximately 50-60 metres behind. At this point LS/C Bednarczyk’s view was that they were thcre to take over as the primary pursuit vehicle, if they got the opportunity.
He further stated that their objective was not to pass the Mazda and this was never contemplated, but that the overall purpose was to stay a safe distance behind until the pursuit comes to an end.
Court: Q ‘And in answer to Counsels question what do you say is a safe distance behind?
Oh, it depends on each different circumstance.
Mr Gipp; Q Well your statement on that point says you did take up a position or reached a position about 30 metres behind the Mazda, is that right?
That's correct.
Well in relation to my risk assessment it satisfied me that we could continue, ’74
In answer to further questioning from Mr Gipp, the witness testified that he did not at any stage (again) check the speedometcr(s) until the pursuit was terminated.
Further evidence was given by L/S/C Bednarczyk concerning the movement of Krankston 615 by reference to the plotting points and MDT data, as all vchicles made their way over the Frankston Freeway overpass, with two cast bound lanes becoming one at the top of said overpass.79
TT soe transcript at page 1187-88.
72 See transcript at pages 1192-93.
13 See exhibits 16A and 31E and transcript p.1196,
75 See exhibit 311 al plotting point 00.02.31,
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urned around on the Nepean Highway and took a left turn into Seaford Road, which he did not feel was.
When Frankston 615 was at the top of the overpass, the wiiness testified that he remembered seeing the Mazda about 100 metres ahead of Frankston 251.
He further confirmed his earlier statcment that Frankston 615 overtook Frankston 251 in the vicinity of Hartnett Drive, (see plotting point 00.02.42) and that at this point the Mazda was ‘a good 150 metres or so ahead.’
In further answers to questions from the Court, L/S/C Bednarezyk stated that he recalled these matters from his general recollection and had not made a record, including these specific recollections, al or about the time of the event which occurred some three years earlier, 76
With no specific recollection of this particular matter, his conversation with S/C Orr would have been,
‘te take up and catch up the offending vehicle,’77
138, The witness was then referred to the plotting point for 00.02.42 which he agreed was his position at Hartnett Drive, when Frankston 615 was travelling at 148 kmph.78
Mr Gipp Q ‘You've estimated it was 150 metres ahead. Can you recall whether 615 accelerated?
Oh yes, we accelerated.
Q And did you catch up?
We did.
Q In your statement you say you got to a distance of 30 metres behind the vehicle?
Yep.
Q Can you say by reference to a GPS plotting point or street where ..
wt the vicinity just west of Elisdon Drive.
Q Plotting point 12.02.54?
Right,
Q Did you hear any instruction from the pursuit controller to terminate this pursuit (at this point)?
1 did.
QU, that direction started at 02.53 and ended at 02.57, (the evidence of Ms Smith refers)?
Right. ,
Q Did 615 take steps to take steps to abandon,.?
Yes we dic.
Q When that happened? ....the abandonment and you took up a position 30 metres behind., How
long were you 30 metres behind?
It happened at the same time.
Q You didn’t check the speedometer Are you able to estimate the speed the police vehicle reached to get to 30 metres behind the Mazda?
Well f would estimate 140-150.
Q Do you accept having listened to the evidence in this inquest and what is referred to as the instantaneous speeds on the GPS that 615 was travelling at speeds higher than that?
Oh, look, its still surprising to me. But you know, if the GPS is accurate well yeah I have to concede it.
Q Did you reduce your speed to maintain this even distance behind the Mazda of 30 metres?
10 See wanscript at page (210.
v7 See Qanseripi at page L214.
’8 Sec exhibit 16A. The attributed speed was said to be consistent with his recollection,
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Oh yes that would have happened . That’s right to
maintain a distance Yes,
Q That you believe is travelling between 120-130?
Mmm.
Q Can you tell His Honour how long you we abandoned the pursuit?
It was hardly any time at all.
Q So it all happened at the same time?
Yeah.
Court: Q Now at that time your driving al avery, Yes...
re travelling at that 120,130 speed before you
fast speed (177 kynph approx)?
Q from your own estimate at 6Okmph faster than the Mazda
Yes that’s how it worked out.
Q I'm just trying to put myself in the position of a driver or passenger in the Mazda. It must have been like an enormous force rushing towards them at a very high speed and overtaking them or reaching a position where it could overtake them momentarily, very very quickly?
1 Well we caught up...I wouldn't believe its an en T guess that’s in the mind of the beholder.
ormous force.
Q At a 60 kmph faster speed than the Mazda was travelling?
Yes Q How does your risk assessment take into acco
unt the driver’s likely reaction to your extremely
fast passage towards his vehicle, (in that situation)?
.. Well that’s why we maintain an even distance and don’t go too close. I can’t speak for how he -
what these people think, (and)
.. Well if we believe its too close we can make adjustments. Depending on the environment, the road what's going on around us we make adjustments the entire way. That's whai a risk assessment
is all about,’7?
139, L/S/C Bednarczyk further testificd how they "washed off speed’ and that they did not get to this
high speed and slam on the brakes, He also stated that
metre gap to the Mazda.80 His further evidence was
they passed, near Prince Crescent.
the "washing off’, of speed occurred at a 40 or 50 s that Frankston 615 reached its lowest speed as
at its slowest speed, Frankston 615 was driven at wa
king pace, at which point the collision occurred.
Thereafter, they hurried to the collision scene and this was the reason they failed to come to a stop as
required by the Victoria Police Manual and that it took
them about 20-25 seconds to reach the scene.
hat they did not respond to the abandonment
direction, because the airways were busy and later because his focus shifted.8!
142, L/S/C Bednarezyk testified that his use of ¢ constituted an error on his part.82 His further testi
he words ‘pulled over’ in his police statement mony was that the words ‘wainteined an even
distance behind offending vehicle’ was also (in error) as he only maintained that distance for a few
seconds, '
ic See transcript at pages 1213-18.
. See transcript at page 1224, which I note is in conflict with es ul Sec transcript al page 1231
82 See transcript at page 1256.
arlier evidence at page 1215-16.
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OQ ‘Maintain’ suggests ’continuous’, It does but we are looking at a split second before it was terminated.3
143, L/S/C Bednarezyk also confirmed his participation in the preparation of the computer Mobile Duty Sheet, completed largely by S/C Orr, at 00.03.45.84 He testified that he did not sign the mobile duty sheet, although aware he was required to do so. His further evidence was that the statement included by S/C Orr that 615 pulled over, was in fact incorrect,85 and that he didn’t report to the controller during the pursuit because he didn’t see the need to as Frankston 251 was available to perform that function, 86
Court: ‘T imagine (after the incident) and after the chasing of and subduing of a couple of young men, who resisted arrest, following theft of a flare, ...that he must have been physically and emotionally exhausted?
A/C Orr was 'professionally composed throughout the entire period. 87
144, — L/S/C Bednarezyk further testified that he and S/C Orr finished work at 7.30am that morning.
He did not recall discussing his notes with other officers involved in the pursuit, prior to his departure, but was sure he would have. He was aware that the normal protocol in such situations was that either the MCIOU or ESD, would take’a formal witness statement, and that this would usually occur on the same night.88 He was informed that MCIU was to be the investigator but only one MCIU officer (Shane Miles), attended and it was determined that they did not have sufficient resources available at that time, and would return the next day, Monday.
145, In regard to the meeting on 2nd December 2008, L/S/C/Bednarczyk testified that he didn’t recall Inspector ‘Talbot raising the issue of whether S/C Orr had stopped his vehicle following the order to abandon.8?
‘I did not believe the speeds on the animation, I did not give credence to anything else he provided’,
147, Tn further response to questions from Mr A Burns, Counsel assisting, L/S/C Bednarczyk stated that when he used the expression ‘pulled over,’ in his day note he was referring to their virtual stand still, in the vicinity of Prince and Henry Crescent.9!
83 See discussion at 1256-57.
84 See transcript at page 1259-60.
85 See transcript at page 1261,
86 See transcript at page 1262
87 Sev (ranscript at page 1265,
BB See transcript at page 1271:
Bo See questions by Court and answers al transcript page 1281/82.
2 See transcript at page 1296, YY See transcript at page 1315,
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148, He then agreed that the term meant ‘stationary’, and that he wasn’t focusing on that, but on the accident.
His further evidence was that he didn’t read S/C Orr’s notes in regard to this matter and that he didn’t recall speaking to Mr Torcasio on the 17th March before he madc his statement.?2
In further examination by Mr Burns, L/S/C Bednarczyk repeated his earlier evidence that he didn’t recall that during the 2nd December meeting with Inspector Talbot, the question of whether they came to a stop in Frankston 615 had been a focus of that discussion, While accepting Inspector Talbot’s evidence on the matter (that both speed and the question of Frankston 615 stopping), had been the focus, his evidence was that he just didn’t remember that aspect. In further questioning by Mr Burns, L/S/C Bednarczyk agreed that he had become competent in estimating speed and that he was confident in his estimate that Mr Bennett’s vehicle was travelling at between 120-130kmph.
And that when we drew close we got to a distance of approximately 30 metres behind.
Q Were you interested to look at your speedo (to compare speed?)
We were conducting a risk assessment. I had plenty of things going on in my mind.93 Your notes indicate that you maintained an even distance?
(Yes for) 1 second maybe 2.94
151, After further examination on the question of speed and distance travelled, L/S/C Bednarezyk then accepted that if he travelled at 177kmph that would mean travelling at almost 50 metres per second, He further testified that they ‘washed off speed’, although he couldn’t say whether at any time they had managed to ‘washed off’ enough speed to match him exactly, ie. to travel at an even distance (behind him).95
L/S/C Bednarezyk’s further evidence was that S/C Orr responded by slowing when they heard Sgi Kraus, call off the pursuit.
The witness did however accept that if the Mazda was just past Elisdon when the call to abandon was made, (S/C Orr’s evidence and the diagram Exhibit 31), then Frankston 615 was there at 00.02.53-57 seconds, (with the Mazda 30 meters in front);
That Elisdon was 670 metres from the intersection; :
That if Mr Bennett maintained a speed of 120kmph from Elisdon, he would reach the point of the collision after a period of 20.33 seconds;
That from the 251 ‘come to grief call,’ (exhibit 19B), that the collision has occurred by 3,20 seconds, say 3.17 seconds:96
Q When you say... that Mr Orr began to slow at 00.02.57 ... when did he get to his slowest point that he was travelling at?
.. somewhere in the vicinity of Prince Crescent and Henry Crescent ..,
QO How tong did that take? ,
i can’t put a time on that.
92 See transcript page 1320,
? Sec transcript at pages 1335/6.
ot See transcript at page 1337.
? Transcript al page 1338.
96 See (ranscript at pages 1339/1341,
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O The evidence from Mr Bellion (Detective Senior Sergeani and reconstruction expert) is that a vehicle travelling at 135 kilometres per hour breaking at 0.5G will stop in 8.6 seconds, do you accept that?
Expert evidence I have to accept that, 97
. Your evidence as to your slowest point has you somewhere between Prince and Henry (at 00.03.03 seconds)?
T agree that's 6 seconds after the point that we were at Elisdon,; I agree that’s faster than suggested by Senior Sergeant Bellion in Exhibit 32.
S/C Orr didn’t brake hard.
Q I suggest to you that the data suggests (you slowed down) well after Prince and Henry, (and instead between Bellvue and Ti Tree).
That was nry recollection.
Q Is your evidence this that you were still in motion albeit at a walking pace a second before Mr Bennett's collision?
That’s what I recall.
O if that’s right you have taken 19’seconds to stop do you agree with that Well if that’s what the figures state.98 And later...
Q Do you agree your recollection can’t be correct?
No.... (Lam agreeing ...).
QT suggest to you that the GPS shows that your vehicle was just west of Ti-Tree at 00.03.18 seconds?
Yes.
L/S/C Bednarezyk then agreed that his recollection of events could not be correct based on the data.?9
L/S/C Bednarezyk also confirmed that he had been aware of the busy nature of the intersection.
In further questioning by the Court, L/S/C Bednarezyk maintained that he continued with his risk assessment in these circumstances, until the controller ordered abandonment, 100
He also maintained that he did not have time to look at the speed of his own vehicle, and that he remained comfortable with its speed.
Evidence given by Detective Sergeant Frank Torcasio, ESD
of the 16th of March 2008.
°7 See wanscript at 1341/42 and further comments by witness concerning both Mr Bellion’s expertise and acceptance of his methodology, at page 1346.
See wanscript at pages 1347/8 and from 1353.
29 See transcript pages 1354/1356, 100, See transcript at pages 1397/62, 101 Exhibit 34
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‘My role was to oversee Inspector Talbot's investigation. Inspector Talbot shares his investigation with me and I share my information with the Office of Police Integrity (OPD).’
160... D/S Torcasio further stated that he returned to the station with the members arriving at 4,05am., He obtained copies of the day notes, which he read at the time. All said that both vehicles Frankston 251 and Frankston 615 became stationary after the abandonment was called, except for that of S/C Orr, who stated that he, ‘slowed down but didn’t mention that he’d come to a complete stop."102
Q Did you read S/C Orr’s formal statement after the 17th of March?
Yes I did.
... Yes, it could have required a bit more clarification as to what he meant by that term, 403
He further stated that he did not come to read this statement until after the 17th of March, and did not think it was an issue, and did not discuss it with Inspector Talbot. He would normally expect the statement taking to occur on the same day, or without delay, and be in Question and Answer (Q & A) form, with the statement taker asking Questions before he types it up. [le would also normally expect the witnesses to be ‘separated,’ !04
He further testified that after leaving the Frankston Police Station early on the Sunday morning, he later went to the Alfred Intensive care unit to make inquirics about the well-being of the driver of the red Mayda (Shane), Early the next morning (Monday 17th), he contacted The Alfred again and was informed that Shane’s brother was with him, that Shane was in a critical condition and that his family was, ‘flying in’.
D/S Torcasio further testified that on the Sunday there was a ‘resourcing problem’ concerning the availability of S/C Miles from the MCIU, and so the statements were put back to the Monday.
Following (he statement taken on the Monday afternoon, Mr Miles gave D/S Torcasio a copy of the statements. These were later placed by the witness in his working file.
In regard to the GPS data, D/S Torcasio testified that Inspector Talbot informed him of the concerns he had about the witness statements and discrepancies within that material as against the GPS data. On numerous occasions Inspector Talbot and Inspector Oberin, who had Victoria Police oversight responsibilities concerning ESTA and D24, discussed the matter.
Q Did you discuss the matter of (immunity)?
Yes, Inspector Talbot and I did. We discussed that provided they did not make false statements...
that there. would be no repercussions (for the members), from making new statements based on evidence that was not previously available, 105
ios See trans ripe: at page 1575.
103 See transcript at page 1574.
104 See transe ript at page L5/6-77/,
105 See exchange af (ranscript page 1584,
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In further questioning by the Couri, D/S Torcasio testified that he was not aware that on the Monday, Mr Miles had not taken statements from the members in a Q & A form and that he hadn’t given a clirection as to how the statements were to be taken.
The witness further agreed that Q & A statements from members, was an appropriate format, and that such an approach had now become ESD practice, though it was not at that point in time.
In regard to the inconsistency in S/C Orr’s day note and original statement on the matter of his stopping Frankston 615 following the order to abandon the pursuit, Det. Sergeant Torcasio’s evidence was that he didn’t think it was an issuc and that this view didn’t change following his receipt of the GPS evidence, which he discussed with Mr Oberin.
170, When questioned as to why he didn’t scek to establish the accuracy or otherwise of the GPS data, given that it appeared to contradict members on questions of both speed and passage (ie. did Frankston 615 come to.a halt or not or otherwise disengage?), Det. Sergeant Torcasio stated that there were difficulties relating to ‘contractual matters,’ to be faced in getting that information, !06
Procedural Fairness
The existence of evidence concerning the GPS technology and its application to issues of vehicle speed and passage was made known to the four concerned members at the Frankston Police Station on the 2nd of December 2008.
Thereafter, supporting evidence in relation to the accuracy and interpretation of that evidence was made known to each member as it became known, which at least during the inquest often occurred because of issues vigilantly canvassed on their behalf by Mr Gipp.
‘This evidence was given and otherwise provided to the Court and to all interested parties, before the officers were called to testify, 107
It is also the case that the fact that new technology was being used in a Victorian Court, to seck to help prove matters not to my knowledge previously proven in this manner, led all parties to proceed with an abundance of caution.
Having reviewed these matters again, I am quite satisficd that cach member was accorded procedural fairness, durmg the course of this investigation.
Findings
106 See transcript at pages 1594-95,
107 While there was later discussion and evidence confirming lat the time code was UTC time for all systems concerned including Motorola, GPS Data and ESTA (the then 1924), and the Telstra talking clock, it was clear (and the members knew), that they had to be the same (either GPS or U'P'C),- because as at that time those time clocks were approximately 15 seconds apart. IE was commaon ground that the 24 lime statement could not be 15 seconds out from the Motorola GPS data, Por completeness sake, Motorola and ESTA provided evidence that their respective data before the inquest, was in U'I'C time.
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After consideration of all of the evidence, I am satisfied that the GPS technology employed in this case has provided a reliable record of the speed undertaken and the passage of police vehicle Frankston 615, during its pursuit of the Mazda driven by Shane, in the early morning of 16th March, 2008, the subject of this investigation.!08 Following a review of this evidence in the light of the observations of various eyewitnesses to the events the subject of this investigation and having paid particular regard to the length of time involved in these various sightings and to their position and perspective relative to the vehicles immediately engaged in the pursuit and following a consideration of the agreed chronology! together with all of the rest of the evidence as well as counscl’s submissions, I further find that:
L/S/C Bednarezyk and S/C Orr have both provided distinguished service to the community in their role as police officers, in careers spanning cighteen and nine years, respectively,
S/C Orr, at all relevant times the driver of Frankston 615, held a silver classification license, which allowed for speeds to a maximum of 150kmph during emergency duty driving. On the 15th March 2008, S/C Orr was a third time driver in a police pursuit with a minimal previous relevant experience in a gold class 8-cylinder, six litre Holden Commodore TMU vehicle, which he was called upon to drive that night, 110
His senior in vehicle Frankston 615, L/S/C Bednarczyk, was a highly experienced pursuit driver with a gold classification licence authorising him to undertake properly authorized pursuits at unlimited speed, as the need arose,!!1
The pursuit commenced at 23.59 and 35 seconds on the 15th March 2008, the time of the first radio submission by Frankston 251 advising that they were in pursuit, as recorded by the D24 tape.!!2
182, Shane was then pursucd north along the Nepean Highway where Frankston 251 reached a toprecorded speed of 154 kmph, this in an 80 kmph zone.!!3 ‘The maximum speed attained by the Mazda during this time was estimated by Sergeant Whitehead to be 120-130 kmph.!!4
108 | satisfied that the information supplied through Motorola personnel Messer’s Sidebottom and Stanley, about average speeds and instantaneous speeds and the passage of both police vehicles Frankston 615 and Frankston 251, was reliable and accurate. I adopt here the remarks of Counsel representing the Commissioner for Police, who observed at page | of his written submission that,
"1) This inquest was the first occasion upon which GPS data derived from the Mobile Data Terminals (MDT), within Victoria Police vehicles involved in a pursuit had been the subject of examination. The polling of this GPS information via the MDT system produced data points, most often every three seconds, during the course of the pursuit. Each GPS data point carried a suit of information including: the vehicles instantaneous speed; the vehicles location (as latitude and longitude}, and the time associated with the data point. These three aspects of the GPS information were the subject of considerable controversy throughout the inquest, Various witnesses gave evidence about the accuracy of the system and the manner in which it worked but important questions persisted which could only be seitled after the receipt of further evidence.
109 See Lixhibit 20.
110 See photographs at Exhibit 313, 11 pysyc Bednarczyk testified that he had previously participated in 20-30 pursuits, the majority of those on a motorcycle, Exhibit 3, Victoria Police Manual (VPM), at 102-2. It is not in dispute that the pursuit of Shane Rennett constituted ‘urgent duty driving,’ within the meaning of the VPM.
(12 See exhibit 27EC(L) the D24 tape | Gwith Gime), of the relevant radio broadcasts and transcript of the D24 recording at exhibit 198, Sce also the agreed chronology at exhibit 20.
113 See exhibit [6A at 12.00.39 seconds and exhibit 22A which shows that Frankston 25] reached this speed near the interseclion of the Nepean Highway and Seaford Road.
14 See the evidence of Sergeant Whitehead contained in his stalement al exhibil 39.
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183, Shane proceeded to turn right and then travel through various side streets. He also went through a red traffic light at approximately 00.01.30 seconds, at the intersection of Railway Parade and Station Street.!15 | Shane then drove over the train line and down Railway Parade and subsequently left onto Seaford Road, going through another red light on Seaford Road,! 16
Shortly thereafter, Frankston 615, (driven by 8/C Orr, with LS/Cons{ Bednarezyk observing and supervising), approached the pursuit. Frankston 615, a TMU vehicle, was then directed by Hastings 251 to take over the pursuit. !!7
The pursuit controller, Sgt Krause, Hastings 251, gave the order at 00.02.20 seconds on Sunday, the 16th of March 2008. .
It is apparent from his statement that Sergeant Krause was unaware that it was S/C Orr rather than the gold licence holder, LS/C Bednarezyk, who was driving Frankston 615 during the pursuit, 118
. Frankston 615 took over as the primary pursuit vehicle at 00,02.41 scconds, the overtaking occurring at the location of Hartnett Drive on Seaford Road.!19 On overtaking S/C Orr continued to accelerate reaching speeds of 148 kmph at 00.02.42, and after a minor reduction to 134kmph at 00.02.45, speeds of 164 kmph and 177 kmph at 00.02.51 and 00.02.54 respectively, These speeds were reached over an area of roadway where the maximum permitted speed, for members of the public, was limited to 60 kmph.
During this time I am satisfied that Frankston 615 made substantial inroads on the gap to Shane’s vehicle. It is also the case that both officers S/C Orr and LS/Const Bednarezyk, understood that their narrowing of the gap continued in the context of both vehicles speeding in the direction of the Frankston-Dandenong Road, a light controlled intersection, which was surrounded by an area which included various late night food outlets, as well as the Seaford Hotel.
Tam also satisfied that both officers recognized that they were approaching the Mazda at a speed which was far in excess of the maximum speed, of which the Mazda itself was capable.
I further find that at all material times Shane was aware that he was being pursued by Victoria Police officers and that he was lawfully required to bring his vehicle to a stationary position. It is also relevant that earlier that evening he consumed cannabis, which is likely to have adversely influenced his perception, judgement and reaction time.
Sergeant Krause gave the order, to discontinue the pursuit at 00.02.53 seconds, and the D24 communication operator later sounded the pursuit abandonment tone to all vehicles in the vicinity at 00.03.08 seconds.!20 T note that the order was given by Sergeant Krause just after he received a report from Frankston 251, or was otherwise awarc that,
'S See the calling of this incident on the-D24 transcript at exhibit L9B and the evidence of Sergeant Whilchead at 1545, 16 See D24 transcript, ibid, Hastings 251 was also a TMU vehicle and the driver Senior Sergeant Krause, (deceased), was the designated police
controller of the pursuit.
8 See exhibit 36 page 4. lt is not known whether the knowledge thal it was a relatively inexperienced driver who was at the wheel, would have (urther impacted upon haw the pursuit controller managed this pursuit.
2 See Exhibit 23A, See also the discussion of this matter in (he evidence of Sergeant Whitehead at transcript page 1545, 20 ‘The pursuit abandonment tone was activated by the O24 operator in accord wilh practise and notified ail vehicles in the area of (he controller's carlier direction,
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a) Frankston 615 had taken over as the primary pursuit vehicle,
b) the vehicles were heading towards the light controlled intersection with the FrankstonDandenong Road and the nearby Seaford Hotel and other late closing commercial premises; and
c) that the speeds of both Frankston 615 and the Mazda were estimated to be 120 kmph.121
193, No such acknowledgement of the order came from Frankston 615 which, while slowing after the abandonment direction, did not stop or nearly stop before the collision occurred. 123
194, Frankston 615 was still travelling at 72 kmph at 00,03,09, by which time it was just before Bellvue Crescent. This was a minimum of 12 seconds after completion of the order by the controller to terminate (00,02,53-57), I also note that S/C Orr had commenced to reduce his speed after attaining a maximum speed of 177 kmph at 12.02.54 seconds.
Expert evidence given by Senior Sergeant Bellion further established that the time needed to safely pull over a TMU vehicle travelling at a speed of 169 kmph reached at 12.03.00, was 10.6 seconds and that this would be achieved within a distance of 249.9 to 272 metres.124
It is further relevant that this speed and the controller’s earlier direction to abandon (at 12.02,5357), was given when Frankston 615 (at 12.03.00), was located on Seaford just before its intersection with Prince Crescent, 534 metres from the point of the collision, which occurred at approximately 12.03.17, a minimum of 20 seconds after the abandonment call.125
It was not in dispute that S/C Orr and L/S/C Bednarczyk both heard the controller’s direction, and I find that his broad slowing from that time, was undertaken in partial response to that direction, !26
On his approach to the intersection, the evidence suggests that Shane would have seen the red light facing him and also have been conscious of the presence of Mrs McCready’s Ford Falcon. Part of
the way into the intersection Shane applied emergency braking causing his wheels to lock and his tyres .
to skid. This left a set of tyre marks on the road surface which marks continued to the point of impact with the Ford Falcon which had been in the process of turning right out of Frankston Dandenong Road into Seaford Road. A reconstruction of the collision carried out by police reconstruction expert Sergeant Urquhart suggests that at the point of collision the Mazda was travelling at a speed of approximately 86 kimph, 127
121 See below as to the significantly greater speed at which Frankston 615 was actually being driven at this time.
Sce exhibit [9B. Sec also the controllers statement at exhibit 36, where he incorrectly states that the speed reported by Set Whitehead was 130 (rather than 120), and that he was familiar with the surrounds, ‘and the intersection and its surrounding business premises, Given a consideration of these factors I decided to abandon the pursuit.’ See Exhibit 22F, 23 Both Orr and Bednarezyk agreed that they heard the direction to discontinue given by the controller, as well as the later abandomnent tone, See lranscript page 1023-24 and Exhibit 31, Orr, and page 1213, Bednarezyk.
See also exhibit 32 at page 5 where Senior Sergeant Bellion sets out his opinion as lo stopping distances and times for a ‘IMU vehicle refercuce speeds of 135 and 148 kmph.
125 ‘The time of collisian is assessed by reference to the communication [rom Sergeant Whitehead, the passenger in Frankston 251, af the facet of the collision, See exhibit 198, 6 Sce finding at paragraph 210-212 below. In so finding 1 eject the contrary submission made on behalf of the members and the Commissioner.
127 See the evidence of A/Serpeant Urquhart at Exhibit 18, It was not in dispute that this light controlled intersection was an often-busy roadway, likely lo see traffic use at any time of
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200, With respect to the actions and decision making of the occupants of Frankston 615, I find that I do not accept the evidence given by LS/C Bednarczyk and S/C Orr as truthful and that I did not believe them. In so finding, I note that at times the testimony of both was inconsistent with the evidence established by the GPS technology,
201, 1 also note the further inconsistency between their testimony about the passage and speed of Frankston 615, and the expert evidence provided to the Court in regard to the time needed to effectively brake such a vehicle by Senior Sergeant Bellion.
202, It is also the case that there was inconsistency within the evidence given by each, and between their testimony and their original police statements,!28 and between the daybook note made at the scene by S/C Orr, and his later MDT log and police statement.
203, As a result, I am unable to ascertain from their testimony what they saw or what was said between them, while they remained within their vehicle, or thereafter.
204, I have now further directed myself concerning the remaining evidence and the evidence of the eyewitnesses, including the evidence of the occupants of Frankston 251 and the statement of the pursuit controller Sergeant Krause,!29 and as to how and in what circumstances inferences might be properly drawn about the operation of Frankston 615, from that remaining body of evidence. | have also directed myself concerning the standard of proof, which applies in Coronial Inquests.
206, At all relevant times both officers were broadly aware of the speeds al which they were travelling, or that from time to time they separately and deliberately ‘turned a blind eye’ lo this issue.
seconds,
the day or night, 128 Ya all the circumstances, Y consider the omission from their earlier statements etc of information about their actual
speed, to constitute a misleading record of whal uctually occurred.
129 Soo the unsigned statement of Sergeant Krause, (deceased), setting out inter alia, bis reasons for ordering abandonment,
at exhibit 36.
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209, I find that S/C Orr received little or no assistance in regard to his manner of driving from his senior, L/S/C Bednarezyk. It is also the case, however, that S/C Orr himself chose to ignore the general limit placed upon his driving at a high speed, of which he was aware.
211, Instead, I find that while slowing he contimied to drive intending to maintain contact, albeit at a decreasing speed and at an increasing distance behind the Mazda, and that this conduct continued until he and his colleague witnessed the collision.
While Frankston 615’s lights and siren were turned off, I am satisfied that the intention of maintaining a visual and geographical proximity to the red Mazda remained, despite both S/C Orr and L/S/C Bednarezyk knowing that the controller’s direction to abandon the pursuit required them to disengage and pull over.
I further find that these actions subverted the cfforts of Sergeant Krause to manage the pursuit in any meaningful way, and that a reasonable and appropriate system for managing a pursuit was frustrated, by the actions of both officers.
As to the risk analysis, both officers were familiar with this stretch of Seaford Road, and that it was a designated 60 kmph zone, leading towards a light controlled intersection and a commercial area, quite usually the scene of late night patronage.
While engaged in the pursuit S/C Orr drove for a significant period without regard to any properly conducted risk analysis in a manner which created a serious threat to the wellbeing of himself and his colleague, !3!
130 | am satisfied from the evidence of Senior Sergeant Bellion (see statement at Exhibit 32) and al! of the remaining evidence, that notwithstanding his speed, there was a more than sufficient opportunity for Frankston 615 to pull ever, (this before the collision occurred), had S/C Orr determined to so act, 131 s/c Orr’s driving also had an ill-considered potential concerning Shane, who had already, by his actions, demonstrated a manifestly irresponsible attitude. Additionally, I find that neither officer had any reason to believe that their actions, i.e. a pursuit conducted at high speed, would cause Shane to desist from his course of conduct. J also find that the officers gave little or no consideration to the possibility that they would be able to trace the driver by pursuing a more orthodox line of investigation, Tn all cases of police vehicle pursuit, il is axiomatic that officers have no way of knowing how a suspect is likely to react under the pressure created by the pursuit. As difficult as such a consideration is, this understanding should always form part of the officers on-going risk evaluation. In this case, Shane Bennett's hostile predilection lo police officers generally, together with his earlier consumption of cannabis, meant that the possibility that he would respond appropriately to the pursuit was always unlikely, (See the evidence of Arron Bennett discussed above, together with the evidence of his ongoing unlawful conduct during the pursuit, which evidence together establishes to my satisfaction that Shane Bennett generally maintained a hostile and otherwise poor attitude towards police officers).
Prior to and during the course of the pursuit, Shane Bennett was suspected concerning displaying false number plates and failure to stop together (L expect), with other accumulating driving related offences, During the period of the pursuit, there was no sufficient reason for cither officer lo suspect that Shane Bennell was evading arrest for any more serious pre pursuit conduct. Further, in the absence of reasonable grounds for such a suspicion, his failure to stop could not properly be assumed by the officers to suggest that more serious criminal conduct had occurred, or was occurring.
See transcript page 1010 and 1240 where S/C Orr and L/S/C Bednarczyk respectively, discuss their suspicions concerning the Mazda driver, and the then applicable VPM which does not suggest such the relevance of such an approach.
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I find then that neither L/S/C Bednarezyk, nor S/C Orr took sufficient care when assessing the risks involved in their chosen course of conduct and that the attitude of L/S/C Bednarczyk, in particular, and his understanding of the concept of risk assessment (as expressed in his evidence set out above), was badly lacking in substance.
It is also relevant that both officers had earlier heard Frankston 251 call in a speed of 100 kmph, which was seen to meet with the controller’s approval.
The subsequent failure of L/S/C Bednarczyk to call in their significantly faster speeds, resulted in the pursuit controller remaining uninformed about this matter, and therefore unable to intervene and terminate their involvement in the pursuit.
219, Similarly, L/S/C Bednarczyk’s failure to call in a response to the abandonment direction also further isolated both himself and S/C Orr from the controllers (immediate) inquiry and supervision.
The evidence collected in this case might normally establish (the inference of) a nexus between the conduct of the occupants of Frankston 615, and the decisions made by the driver being pursued (Shane Bennett). 132
It is relevant however that the (circumstantial) evidence does not allow me to make a determination of what was going through Shane’s mind during the pursuit and whether he was aware of the speeds reached by Frankston 615, and how he responded to that knowledge. Similarly, I do not know whether Shane was aware that Frankston 615 had commenced to slow down, and later came to turn off its lights, and how he responded or would have responded to that information.
222, In this regard, I find that Shane’s general hostility towards police, the evidence of his driving on that night and the likely impact of his carlier use of cannabis does not permit me to safcly draw any inference(s), about his perception of, or likely responses to these matters. 133
223, Following their return to the Frankston Police Station S/C Orr and L/S/C Bednarezyk, while still inside Frankston 615, completed the Mobile Duty Return exhibit 31D. Having regard to the contents of this Exhibit, where S/C Orr noted at page 3 that he had ‘pulled over,’ and his earlier contradictory Daybook note Exhibit 31A, and to the general demeanour in the witness box of L/S/C Bednarezyk, I find that while in Frankston 615, L/S/C Bednarezyk exercised an unhelpful influence over the content of this Mobile Duty Return entry.
224, 1 further find that later at the Frankston Police Station, neither S/C Orr or L/S/C Bednarezyk (or the objectives of this Inquest), were assisted by the failure of Detective Sergeant Torcasio, ESD, to insist that separate statements were taken forthwith, from both officers, !34
132 Tdo not accept the member’s submission that such an inquiry is outside the parameters of the Coroners Act 2008.
133 The evidence from the occupants of Frankston 615, does not permit a finding as to how close Frankston 615 came to the Mazda. (although I note that the GPS evidence concerning the speed 615 and the time of the collision is not inconsistent with the evidence of the officers concerning this matter.) See also the discussion below in regard to recommendation 2, concerning the possible future access to the national digital satellite system and to the potential for a real time visual recording of all parties to a pursuit, and the potential for that data to be immediately available to a third party, (or pursuit controller),
Mr Torcasio slated that there were not enough staff to take the statements from Lhe four occupants of both Frankston 251 and 615 on the Sunday morning and that witnesses were fold to return to Frankston Station on Monday morning when statements would be taken. His further evidence was that the wilnesses retumed on tle Monday morning and were later asked to make non Q and A statements and that they were not ‘separated’ during this intervening period.
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226, At this point Detective Sergeant Torcasio’s rather too low-key approach, failed to ensure that S/C Orr was directly questioned about the discrepancy between the account of the pursuit he obtained from S/C Orr at the collision scene,!35 and the version he later gave in his running shect!36 and written statement, 137
Pursuant to section 67(3) of the Coroners Act 2008, I make the following comment(s) connected with the death and pursuant to section 72(2) of the Coroners Act 2008, I make the following recommendation(s) connected with the death;
Comment 1
Having regard to Victoria Police policy concerning pursuits, T find that there is a great potential for conflict between the need to conservatively assess the risks involved in continuing with any particular pursuit, and to respond appropriately to that assessment, on the one hand and the practice of attempting to bring suspects to justice, without proper regard to an ongoing risk assessment, (on the other), 138
I note that the then existing pursuit directions, as sct out in the Victoria Police Manual of the time, direct that the objective of bringing suspects to justice, should be continually weighed against the competing public interest issues, which uniquely arise in a police pursuit, !39
While this matler has not been made the subject of further inquiry, I observe that the then applicable sections of the manual (and indeed the present manual directions), appear to give little direction to the reader concerning how to go about actually balancing these conflicting considerations. I do not know however, and make no comment concerning whether the training, then supplied to officers, as to how in practical terms they should make such assessments, was adequate.
I further observe here my view that such an approach should always favour the abandonment of the pursuit, when the risk assessment concludes that the risk of accident/collision, appears to be rapidly increasing, or otherwise becoming more probable than when the pursuit commenced,
T35 gee S/C Orn’s daybook record dated 16/3, at exhibit 31A, where he stated that he had not stopped 615 before the
collision and L/S/C Bednarezyk’s contradictory account in his own daybook record. Det Sergeant Torcasio alone among the
investigating officers, was aware of this contradiction.
136 Exhibit 31D
37 See S/C Orr’s non Q&A statement dated 17/3, at exhibit 31, where like the other officers he staled that he had driven
615), at (by inlerence), a permitted speed and stopped before the collision, all in accordance with the controller’s direction.
IT note that the large number of youth fatality accidents in recent years, arising during or otherwise connected to police
pursuits, has led to a wide-ranging debate about the manner in which such pursuits are currently managed,
The Coroners Prevention Unit has, at my request, produced a breakdown of all police pursuit related deaths between the
/1/2000 and the 30/1/2012, which I attach to this finding at attachment 2. As indicated, the slalistical contents include
reference to some more recent incidents, which are only indicative, and subject 10 more formal findings in yet to be
concluded Court investigations. Assuming their broad accuracy, the contents of the CPU Report again underlines the need to
ensure that fully defined pursuit policy objectives are put in place, and are supported by carefully managed training and
supervised practise, which matters are both made the subject of resular review,
39 See Exhibit 3, the then applicable Victoria Police Manual,
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Specd, driver control and relevant environmental factors such as the possible impact upon other road users, should be pre-eminent considerations in this analysis, !40
Turning now to the management of the pursuit, I am satisfied that Scnior Sergeant Krause, quite properly made the decision to abandon as svon as he learnt, (that it was being suggested), that ’speeds had reached 120 kmph in a 60 kmph zone, '4!
It is also relevant that he made his decision to abandon, having regard to the unpredictable consequences of the pursuit speeding towards the up-coming Frankston-Dandenong Road light controlled intcrsection and in the further circumstances of the occupants of 615 themselves, not already having abandoned.
Having reviewed the actions of Sergeant Krause, in particular, and the system employed to manage this pursuit, I am satisfied that the practice of involving a pursuit controller is a well-crafted solution which has the potential to properly mect the needs of both Victoria Police and the community at large.
However, it is self-evident that such a management policy can only succecd in its objective if controllers can be certain that they are receiving accurate advice, from the officers engaged in the pursuit.
Again, it is also self-evident that it is of fumdamental importance that information on speed is passed on regularly, and that the data so passed, is accurate.
Recommendation 1
To better support the existing system and to help ensure the accuracy of information passed to the controller, [recommend the ongoing use of existing MDT/GPS technology to identify and to maintain a lasting record of the speeds undertaken by Victoria Police pursuit vehicles, in all future designated pursuits.
Comment 2
It is relevant that in addition to GPS data, a more directly useful data collection should soon be possible through the national digital satcllite system, which is under the control of the Australian Communications and Media Authority (ACMA), !42
As noted in Comment 1 and Recommendation 1, the currently available MDT data collected via the GPS, allows for the recording of data relating to the speed of an in pursuit police vehicle, though not the transfer of this data in real lime, to a third party.
{40 Tam unaware of the materials currently in use for training police drivers about risk analysis, I have however (post inquest), been made aware of a Department of Justice report entitled Summary Report-Study of vehicle pursuit offenders (2002) by Mr James Charisioy, The report is too extensive to attach to this finding bul 1 would respectfully draw its existence to the attention of interested parties and to Victoria Police in particular, Over and above the materials set out in Attachment 2, the report includes highly relevant information from page 3, concerning the profiles of persons involved in attempts to abscond hy vehicle in Australia, which material I consider has a great potential to be helpful to any driver pursuit relevant teaching, about risk analysis.
Unknown to him, 615 was in lact travelling at speeds approaching 145 kmph plus, by this point, Further, he had not and did nol receive any report conceming speed trom either occupant of 615, Sce the N24 transcript, exhibir 9B, 142 Tt is understood that space on this new digilal network is likely to become available from sometime in 2014,
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The future deployment of the national digital satellite system with the use of data collected through vehicle installed MDT terminals, would however permit the real time recording of both passage and speed, (with a live visnal feed of all data to _a pursuit controller), of any vehicle being pursued by Victoria Police in a designated vehicle pursuit. By the same operation, this data transfer would_also include the passage and speed of the pursuing police vehicle, this to occur on all occasions when an MDT equipped vehicle engages in such a pursuit.
Recommendation 2
To take advantage of this development I recommend that the State of Victoria now seek through the Australian Communications and Media Authority, an allocation of sufficient bandwidth on the national digital satcllite system, to allow for the collection of real-time video and location data by Victoria Police.
Such use should be fully independent of other data carriers, telecommunications companies and media companics, and would be needed to support the above-discussed Victoria Police data collection proposal.
Recommendation 3
I also recommend that the State of Victoria, through the Commissioner, further review the need for the additional ancillary equipment, which would also be required, !43
Recommendation 4
I further recommend, that the same technology be made available and be employed to visually record a police vchicle’s passage and speed in all other instances where such vehicle exceeds a specified speed limit, such limit to be set by the Commissioner and to be promulgated in the Victoria Police Manual,
Comment 3
Austroads represents all Australian states concerning the creation of consistent rules to do with licensing and registration.
New Zealand, which has adopted a similar system to that adopted in Australia, is not a party to the Australian national database, which database allows for ease of checking, when a drivers licence applicant in one state seeks to rely upon the drivers licence earlicr obtained in another state.
Under this present system, as it applies to New Zealand, applicants have until recently been permitted to obtain a Victorian licence by the presentation of evidence that a New Zealand licence was issued, coupled with only a supporting statement by the applicant that he/she was not disqualified, in another country. 144
143] note from the Age 30/12 at page 4 that the Deputy Police Commissioner, Mr Kieran Walshe, was recently quoted as stating that the MDT tcrminals required fo send and receive GPS signals arc, ‘presently installed in about 700 of the 2400 police Meet.’ Victoria Police may or may not consider it necessary to have all of its fleet vehicles prepared for the introduction of such a technology.
144 See the discussion from transcript page 810,
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The evidence before me establishes that Shane exploited this system, to obtain a Victorian licence, to which he was not entitled.
Tt appears likely that his concern that this misconduct would also come to be detected by pursuing officers was a factor that contributed to his decision to drive in the manner, which he then did.
Recommendation 5
I recommend that as per the Court’s discussion with the VicRoads manager for registration and licensing policy, both Austroads and VicRoads, review their licence verification systems, as they apply to New Zealand applications for the issue of a (Victorian) licence. Such a review should occur with future arrangements to be designed to allow for the electronic filing and retention in Victoria of both a copy of the applicants current New Zealand licence, together with a supporting letter of verification from the New Zealand Road Traffic Authority.}45
Comment 4
Having regard to what I find to be an unsatisfactory involvement by the Ethical Standards Department, and to the need for the Court to be proactive in protecting and supporting our own investigatory processes,!46 J] adopt the final recommendation made by the State Coroner, Her Honour Judge Coate, in her recently published finding in the matter of Tyler Cassidy,
Recommendation 6
"Taking of Police Statements
8 To allay perceptions regarding collusion and bias, without compromising the coherence of the account given by Victoria Police members following a police related death, I recommend that the
Secretary to the Victorian Department of Justice provide an institutionally independent, legally trained person to observe the interview process with Victoria Police members involved in the incident,"!47
Recommendation 7
It is my further view that such statement taking should take place in a question and answer format immediately following the event the subject of investigation, or as soon as is practicable thereafter.
Recommendation 8 In addition, a police briefing, coupled with earlier witness daybook statements, together with any other
relevant materials, should be provided to such an observer by the investigator(s), before such statement taking is commenced.
145 note from the VicRoads written submission to the Inquest, that it is suggested that some amendments, which go to supporting the above stated abjective, may already have been introduced in Victoria.
“? See Coroners Court of Victoria website a( Coroners Case finding number 5542 of 2008, al page 128. 1 would suggest thal a panel of suitably qualified and experienced practitioners might be recruited by the Mepartment of Justice, from both the Victoriau Bar and (he Law Jnstifute of Victoria.
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i \ | |
Recommendation 9
Such a process should also allow the observer to express to the statement taker any concerns about the content of the questioning that he or she may have, before the statement taking is brought to a conclusion, !48
Comment 5
Finally, 1 refer this finding to the Office of the Director of Public Prosecutions in the Stale of Victoria, pursuant to Section 49 of the Act, so that he might take such action against the occupants of Frankston 615, as he may deem to be appropriate.
Conclusion
Shane Bennett was 19 years of age at the time of his death and had found a career in Australia that was full of promise, He has left behind a family, which has bravely acknowledged his foolishness, while remaining devastated by his logs,
T know that all parties would wish to join me in extending our condolences to family members, both in New Zealand and in Australia.
I direct that a copy of this finding be provided to the following:
The family of Shane Bennett
The Minister for Police in the State of Victoria
The Commissioner for Police in the State of Victoria
The Secretary of the Department of Justice in the State of Victoria
The Director of Public Prosecutions in the State of Victoria
The Commanding Officer, Ethical Standards Department, Victoria Police
The Chief Executive Officer, VicRoads
The Chief Executive Officer, Austroads
The Chief Executive Officer of the Australian Communications and Media Authority The Chief Executive Officer Motorola Australia
The Chief Exccutive Officer Trimble Navigation Australia
The Chief Executive Officer the Emergency Services Telecommunications Authority (ESTA) The Chairperson of the Bar Council !49
The Chairperson of the Law Institute 150
Detective Sergeant Torcasio
Sergeant Whitechurch
Leading Senior Constable Bednarezyk
Senior Constable Orr
Constable Morgan
Inspector Mick Talbot, MCIU.
The Manager, Coroners Prevention Unit, (Attention Lyndal Bugeja and Jeremy Dwyer).
148" such an approach should be applied conservatively, to include all pursuit cases resulting in accident, where death and/or setious injury, is suspected io have occurred,
“? Recommendation 6 and footnote 147 refer,
150 As above
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Counsel assisting the Coroner, Mr T Burns of Counsel, on the instructions of Meridian Lawyers, (Mr T Katz). ;
Counsel for the Commissioner of Police, Mr P Lawrie of Counsel, on the instructions of Victoria Police, Civil Litigation.
Counsel for Sergeant Whitehead, LS/C Bednarezyk, S/C Orr and C Morgan, Mr R Gipp of Counsel, on the instructions of the Victorian Government Solicitor.
Counsel for Motorola Solutions, Mr R Taylor of Counsel, on the instructions of DLA Piper.
Counsel for VicRoads, Mr A Lewis of Counsel, on the instructions of Lander and Rodgers.
Counsel for Trimble Navigation Australia, Mr S Russell and Mr O'Neill of Counsel.
Counsel for Emergency Services Telecommunications Authority (ESTA), Mr P Rozens and Mr Southey of Counsel on the instructions of Gadens, Lawyers. ,
Counsel for the Herald and Weekly Times, Mr Cashen of Counsel, on the instructions of Kelly Hazell Quill, Lawyers
Signature:
23 March, 2012
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Wendy McCabe, a 40-year-old woman with a history of depression, anxiety, substance use and previous self-harm, died of asphyxiation from ligature compression after fashioning a noose from a standard blanket in her police…
Rachel Piskun, aged 42, died from pneumonia complicated by severe cerebral palsy. She had severe disabilities requiring 24-hour care in supported accommodation. During a September 2021 hospitalization, compression stocki…
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