Deceased
Joy Maree Rowley
Demographics
60y, female
Coroner
State Coroner Judge Sara Hinchey
Date of death
2011-10-14
Finding date
2018-07-31
Cause of death
strangulation and suffocation by James Mulhall
AI-generated summary
Joy Maree Rowley, aged 60, was murdered by her partner James Mulhall in October 2011, following a serious assault in February 2011. The coroner found multiple systemic failures in Victoria Police's response to the family violence situation. Key issues included: failure to execute warrants promptly, failure to record critical information on LEAP (police database), inadequate formal referral to support services, bail conditions not being entered on LEAP so responding officers were unaware of them, unnecessary delay in charging Mulhall, inadequate supervision of frontline officers, and failure to act on a breach of the intervention order. The coroner found that Victoria Police officers did not adhere to existing policies and procedures. While Victoria Police has since made substantial improvements including creation of a Family Violence Command, new training programs, and better audit mechanisms, these deficiencies represented preventable systemic failures that may have contributed to the victim's inability to fully appreciate her risk and access appropriate protections.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
IN THE CORONERS COURT Court Reference: COR 2011 3947
OF VICTORIA AT MELBOURNE FINDING INTO DEATH WITH INQUEST Form 37 Rule 60(1) Section 67 of the Coroners Act 2008 Findings of: JUDGE SARA HINCHEY, STATE CORONER Deceased: JOY MAREE ROWLEY, born 17 September 1951 Delivered on: 31 July 2018 Delivered at: Coroners Court of Victoria, 65 Kavanagh Street, Southbank Hearing date: 21-23 May 2018 Counsel assisting the Coroner: Ms Erin Gardner, Counsel Assisting the State Coroner Representation: Mr Ronald Gipp on behalf of Chief Commissioner of Police Mr David Grace QC on behalf of Ms Rowley’s family Ms Marion Isobel on behalf of DLSC Paul Smith, LSC Anthony Coates, and LSC Daniel Riddle Catchwords: Homicide, family violence, offender subject to family violence charges at the time of offence
TABLE OF CONTENTS Background 1 10 February 2011 – Family Violence incident 3 17 March 2011 – Family Violence incident 7 21 March 2011 – Family Violence Intervention Order 9 March and April 2011 9 Mr Mulhall charged in relation to 10 February 2011 Family Violence Incident 10 2 October 2011 – Breach of Intervention Order 11 The purpose of a coronial investigation 12 Meaning of ‘family member’ in the Family Violence Protection Act 2008 13 Matters in relation to which a finding must, if possible, be made 14 Identity of the deceased pursuant to section 67(1)(a) of the Act 14 Medical cause of death pursuant to section 67(1)(b) of the Act 14 Circumstances in which the death occurred pursuant to section 67(1)(c) of the 15 Act Assignment of the coronial investigation Coronial investigation and request for an Inquest 17 Scope of the Inquest 19
The evidence 20 Statements of Assistant Commissioner McWhirter 20 Assistant Commissioner McWhirter’s viva voce evidence 22 Breaches of Victoria Police Policies and Procedures 22 Warrants 24 Victoria Police Family Violence Training 24 Review and Audit of compliance with and adequacy of Victoria Police 26 Policies and Procedures Risk Assessment and communication of risk 30 Comments pursuant to section 67(3) of the Act 31 Proposed amendment to the Criminal Procedure Act 2009 (Vic) 32 Investigation of family violence-related incidents by the Criminal 32 Investigation Unit Stand-alone offence of strangulation 33 Apology to Ms Rowley’s family on behalf of Victoria Police 36 Recommendations pursuant to section 72(2) of the Act 36 Systemic reviews of family violence-related homicides by Victoria Police 36 Review of resources and funding of family violence support services 37 Findings and Conclusion 38
Joy Maree Rowley (Ms Rowley) was 60 years of age at the time of her death. She was born in Traralgon and was one of four children to Alfred and Lorna Rowley. Ms Rowley’s family were and remain, a very close, loving and supportive family.
In the early 1970s, while on a working holiday travelling around Australia, Ms Rowley met and commenced a relationship with a Canadian man, Les Woolridge (Mr Woolridge).
They married and had three children: Renee Woolridge, Nadine Power and Aaron Woolridge. Ms Rowley is reported to have happily dedicated herself to home and parental duties.
In 1992, Ms Rowley’s marriage to Mr Woolridge ended. Ms Rowley’s sister, Avlon Rowley (Avlon), with whom Ms Rowley shared a close relationship, reported that the divorce took a very heavy toll on her sister.1
After the divorce, Ms Rowley sold the family home and purchased a new home at 15 Observation Drive in Rye. She also commenced a new relationship.
In 1998, as a result of a fire, Ms Rowley’s new home burnt to the ground and she lost everything. The house was eventually rebuilt the following year.
Ms Rowley had an active social life which included attending the Rye Hotel and other local venues. She frequently hosted informal social gatherings of friends and is reported to have been “most happy when she had company at home” and she would “befriend almost anyone.”2
At the time of her death, Ms Rowley was employed as a housekeeper and was in receipt of a disability pension. She often hosted boarders at her home to supplement her income.
Ms Rowley was deeply saddened by the death of her father in 2010, followed by the passing of her partner due to cancer in early 2011. In that same year, she also lost a close friend to cancer.3 1 Coronial Brief, statement of Avlon Rowley, dated 23 November 2011, 54 2 Coronial Brief, statement of Maria Free, dated 20 December 2011, 57 3 Above n 1, 54-55
In November 2010, Ms Rowley met James Mulhall (Mr Mulhall) at the Rye Hotel.
Ms Rowley was unaware of an incident which occurred in 1972, that involved Mr Mulhall discharging a firearm which injured his first wife. Following that incident Mr Mulhall was dealt with leniently by the Court on the basis that he claimed that he was irresponsibly clowning around when the gun had gone off.4 Ms Rowley was also unaware that Mr Mulhall was, according to his second wife and daughter, a dangerous man who had a long history of engaging in physical, emotional and sexual abuse, with the severity of this abuse often significantly increased by alcohol use. This alleged abuse had not been reported to any police service, nor had it resulted in any application for an intervention order.
In late December 2010, Ms Rowley was approached by Mr Mulhall who asked her if he could move into her house. Ms Rowley reported to Victoria Police that Mr Mulhall “was in between places I had known him not long maybe two weeks but he appeared to be a nice person.”5
In early January 2011, Mr Mulhall moved into Ms Rowley’s home. Ms Rowley is reported to have told Leading Senior Constable Anthony Coates (LSC Coates): “I suppose a relationship of sorts commenced we had been intimate once and Jimmy referred to me as his girlfriend. I didn’t quite see it that way and looked at us more as friends.”6
Ms Rowley also reported to have told LSC Coates that when Mr Mulhall started to move his belongings to her house it worried her as it appeared that he was moving in permanently.7
On Wednesday 9 February 2011, Ms Rowley approached Mr Mulhall about the living arrangement. Also present during this discussion were Ms Rowley’s friends, Priscilla and Bruce McAlister. Mr Mulhall is reported to have not taken the conversation well and tried to get Ms Rowley to change her mind. Ms Rowley reported that he told her that: “he didn’t want to go because he said he was madly in love with me but I felt it was more like that he didn’t have anywhere to go.”8 4 R v Mulhall [2012] VSC 471 at [2] 5 Coronial Brief, statement of Joy Rowley dated 13 February 2011, 233 6 ibid 7 Above n 5 8 ibid
10 February 2011 – Family violence incident
In the early hours of 10 February 2011, LSC Coates and Leading Senior Constable Steven Champion (LSC Champion) of Rye police responded to a family violence incident involving Ms Rowley and Mr Mulhall.9
Ms Rowley informed the police officers that she and Mr Mulhall had had an argument which resulted in her requesting Mr Mulhall to move out of her house. Ms Rowley alleged that after she went to bed, she was awoken by Mr Mulhall on top of her and threatening to kill her with a knife. She also alleged that Mr Mulhall covered her mouth and then choked her to the point of unconsciousness.10
In a statement to LSC Coates, Ms Rowley alleged: “The next thing I remember waking up as I was being choked. I was on my bed I was face down and something was around my throat. I was also being bent backwards. At the same time someone was on my back. I was then spun over so I was now on my back, this movement took me off the bed and I was on the floor.
Jimmy was back on top of me I remember he was still choking me and that he at some point was trying to pull down my jeans. I could see his face and looked like a mad man, just so angry. I remember Jimmy was yelling at me “I’m going to kill you, you bitch, your [sic] dead”. I thought he was being serious he had such a horrible look on his face… I remember begging Jimmy to stop hitting me at this point Jimmy went and got a large knife. It is his knife I have seen it before… Jimmy picked the knife up held it so the blade was pointed towards me…I thought at this stage I had better stop moaning as he was going to kill me.”
After this incident, Mr Mulhall took Ms Rowley’s mobile phone out of the house, to prevent her seeking help. Ms Rowley stated that as Mr Mulhall began to calm down, she made up a story that her daughter was on her way to the house for an art exhibition. Consequently, Mr Mulhall left the house in a taxi which afforded Ms Rowley the opportunity to contact Victoria Police and a nearby friend.11 9 Coronial Brief, statement of Leading Senior Constable Anthony Coates dated 10 September 2015, 228 10 Above n 5, 234 11 ibid, 234-235
As a result of the incident, LSC Champion completed a Victoria Police Family Violence Risk Assessment and Management Report (L17)12 that recorded:
(a) that Mr Mulhall had harmed or threatened to harm Ms Rowley, had tried to choke her and that he had threatened to kill her;
(b) that Ms Rowley’s level of fear as “3 – very fearful”;
(c) that the risk of future family violence was assessed as “likely”; and
(d) that Ms Rowley’s attitude towards referral to a family violence support agency was indifferent and that an informal13 (as opposed to formal)14 referral was made.15
Ms Rowley was conveyed to Rosebud Hospital by ambulance where she was treated for a dislocated left shoulder, sternal tenderness and facial and neck bruising. Ms Rowley stated that Mr Mulhall told her that he was aware of her children’s addresses.16
Prior to discharge from the hospital, Ms Rowley was provided with a ‘Safety for Women’ brochure and a brochure for Mornington Peninsula Domestic Violence Service. The Hospital’s Response, Assessment and Discharge Team strongly recommended that Ms Rowley contact the domestic violence service. They also discussed with Ms Rowley that she should consider changing the locks at her home and informing Victoria Police if she intended staying somewhere other than at her home. Ms Rowley declined to notify her family of her situation, stating that her daughter was busy and her mother had recently been hospitalised. Upon release from hospital, Ms Rowley stayed with a friend for safety and recuperation reasons. She also enlisted the help of a friend to change all the locks on her house.
Also on 10 February 2011, LSC Coates submitted an Application and Warrant for a family violence intervention order (FVIO). Mr Mulhall was named in the application as the ‘Respondent’ and Ms Rowley the Affected Family Member (AFM). The conditions sought 12 Assistant Commissioner Dean McWhirter states that “The Form L17 is the key tool used in family violence risk assessment and management by Victoria Police. The L17 is consistent with the Common Risk Assessment Framework (CRAF) that is the key family violence risk assessment process in Victoria. The Form L17 is utilised organisation-wide and must be completed for every family violence incident reported to police” (Coronial Brief, page 457) 13 An informal referral means that the police officer gives the parties involved contact details of appropriate external agencies, so that they can seek assistance if desired. The First Edition of the Victoria Police Code of Practice for the Investigation of Family Violence provided at 3.2.2 that a formal referral must occur where police are seeking an intervention order or where charges are to be filed in relation to the family violence incident or where there are concerns for the welfare of the affected family member 14 A formal referral occurs when a police officer attends a family violence incident and then directly relays information about the incident to an external service funded to assist people who experience family violence.
15 Coronial Brief, Family Violence Risk Assessment and Management Report (L17) completed by Leading Senior Constable Champion, dated 10 February 2011, 236-240 16 Coronial Brief, Peninsula Health medical records of Joy Rowley, 1509-1510
to be included on the FVIO included a prohibition on Mr Mulhall contacting Ms Rowley, or approaching her or her home. A complaint and warrant was issued by the Frankston Magistrates’ Court later that day and faxed back to LSC Coates to execute. This allowed LSC Coates, or another police officer, to arrest Mr Mulhall and bring him directly before the Court or to bail him with conditions to appear at the first return date for the intervention order application.
LSC Coates established that Mr Mulhall was not present at that address. LSC Coates left his contact details with Mary and informed her that he wished to speak to Mr Mulhall. At this point in time, there was no known mobile telephone number for Mr Mulhall which might assist police officers in executing the warrant. Consequently, the warrant was not able to be executed upon Mr Mulhall within 24 hours of it being issued.
(b) if it cannot be executed within 24 hours or police become aware that the defendant is actively avoiding apprehension, the police member who has taken the warrant must record its existence on LEAP.”
The current edition of the Code of Practice continues to provide guidance in the same terms at 5.4.3.
Since 12 October 2015, the Victoria Police Manual – Procedures and Guidelines (VPMG) entitled “Family Violence” has also provided that if the warrant cannot be executed within 24 hours it should be entered on LEAP by the member who applied for the warrant by submitting a Form L12.17
The LEAP records in this case reveal that, although the warrant for Mr Mulhall was not executed within 24 hours, it was not entered on LEAP as advised in the Code of Practice.
Coronial Brief, Attachment “DM-38”, Victoria Police Manual – Procedures and Guidelines – Family violence, updated 12 October 2015, 1605
LSC Coates states that he was unable to recall what referrals were made for Ms Rowley at the time of completing the L17, but could confirm that when he took her statement “she received a victims of crime information booklet.”18
LSC Coates advised Ms Rowley that the warrant had not been executed. He sought Ms Rowley’s advice as to Mr Mulhall’s associates and she suggested that police officers canvass local hotels in the greater Rosebud/Rye area.19
On 16 February 2011, LSC Coates submitted a ‘Whereabouts Desired’ form to the Central Data Entry Bureau (CDEB) in relation to Mr Mulhall, to flag that he was to be detained and arrested pursuant to section 459 of the Crimes Act 1958 for the assault on Ms Rowley. This form was recorded on LEAP on the same day. The Whereabouts Desired form did not mention the complaint and warrant and therefore it was not recorded on LEAP. LSC Coates stated that “the order however was being held in the same file as the assault investigation.
At the time it seemed unnecessary to record same or file same at Criminal Record Branch.” On the same day LSC Coates approached two hotels and requested that if Mr Mulhall was seen, Victoria Police should be contacted via ‘000’.
On 10 March 2011, Mr Mulhall was interviewed and released without charge in relation to the criminal assault. Mr Mulhall was bailed to appear at the Frankston Magistrate’s Court on 28 March 2011 for the hearing of the FVIO application. The bail conditions prohibited Mr Mulhall from contacting or approaching Ms Rowley or going to or remaining within 200 metres of her home. LSC Coates states that after he bailed Mr Mulhall on 10 March 2011, he completed the relevant Victoria Police form (an L22 report) in relation to the bail and faxed it to CDEB for entry onto LEAP. He also contacted Ms Rowley and informed her that Mr Mulhall was now on bail in relation to the complaint and warrant.
18 Above n 9, 229, 232 19 ibid 20 The first edition of the Code of Practice, at 5.4.2.3, provided that where a complaint and warrant were executed, police were to bring the defendant directly before the Court or bail them to appear at the relevant Magistrate’s Court within five working days to hear the application for the intervention order. The current edition of the Code of Practice, at 5.4.2, is in the same terms. The VPMG entitled “Family Violence” also provides the same guidance, although it did not include this detail in 2011
17 March 2011 - Family Violence Incident
On 17 March 2011, Rosebud police officers, Leading Senior Constable Daniel Riddle (LSC Riddle) and Leading Senior Constable Greg Patterson (LSC Patterson) attended Ms Rowley’s house in response to a dispute between her and Mr Mulhall and his refusal to leave the premises. Ms Rowley reported to the police officers that Mr Mulhall was in breach of his bail conditions.21
LSC Riddle noted that both Ms Rowley and Mr Mulhall were affected by alcohol. He reported that Ms Rowley was verbally aggressive toward himself and LSC Patterson.
At this time the bail conditions had not been entered on LEAP and therefore attending police officers were unaware that Mr Mulhall was in breach of his bail conditions. Ms Rowley also told attending police officers that Mr Mulhall was in breach of an intervention order.
However, there was no FVIO in place at that time.
(a) that there was “nil violence mentioned or alleged;”
(b) that there were “nil concerns at this time for the welfare of either party;”
(c) under the heading “intervals between violence,” that an earlier incident involving Mr Mulhall and Ms Rowley had occurred on 10 February 2011 and that Victoria Police attended;
(d) that charges were pending;
(e) at one point on the form, that the risk of future family violence is assessed as “likely” while at another point, the risk of future family violence was assessed as “unlikely;”
(f) that Mr Mulhall is currently excluded from the address; and
(g) that further follow up action was “not required” and that the risk management strategy was “completed.” 21 Coronial Brief, Statement of Leading Senior Constable Riddle, dated 4 September 2015, 259
Shortly after this incident Ms Rowley’s sister, Avlon, who resides in London, contacted Ms Rowley by phone. Ms Rowley told her sister that Mr Mulhall had come to her house, she was emotional and upset and asked her sister to contact Victoria Police because she felt that police officers hated her.
On 18 March 2011, Avlon contacted Sergeant Warwick Rose (Sgt Rose). She expressed her concerns about her sister’s welfare. Sgt Rose contacted the Officer-In-Charge at both the Rye and Rosebud police stations and relayed Avlon’s concerns for her sister. Sgt Rose was informed that a brief of evidence was being prepared against Mr Mulhall and that it was going to court as soon as possible. Sgt Rose relayed this information back to Avlon.
On 18 March 2011, as a result of Sgt Rose’s intervention, police officers at Rosebud Station realised that Mr Mulhall was on bail and that an application for an intervention order was active. LSC Riddle re-sent the bail forms in relation to Mr Mulhall to CDEB for entry onto LEAP. Mr Mulhall’s bail conditions were entered onto LEAP on 23 March 2011.
In addition to re-sending the bail forms to CDEB, LSC Riddle obtained a Family Violence Safety Notice (FVSN) listing Mr Mulhall as the Respondent and Ms Rowley as the AFM. It contained conditions that prohibited Mr Mulhall from approaching or contacting Ms Rowley or her house. The FVSN was issued as an interim protective measure for Ms Rowley until the FVIO application could be heard at Frankston Magistrates’ Court.
The FVSN was served on Mr Mulhall at 11.23 pm on 18 March 2011. An attempt was made to serve the FVSN on Ms Rowley at that time, however, she was not at home. It was served on her on Sunday, 19 March 2011 at approximately 5.00pm by Sergeant Paterson.
LSC Riddle stated that on 18 March 2011, he made enquiries that revealed a complaint and warrant for a FVIO had been applied for, was executed upon Mr Mulhall on 10 March 2011 and that he had been bailed to attend Court on 28 March 2011 to hear the application for the FVIO. LSC Riddle stated: “this complaint and Warrant and the bail conditions on MULHALL were not on the system at the time of my attendance on 17th March. There was no mention of an Interim Order being issued on the system….It appears that the bail form, or possibly a copy of the complaint and warrant were sent to CDEB for recording on 18 March 2011, most likely by me. Having not been able to locate any current order in place at this time I was requested by my supervisor to obtain a safety Notice for Rowley
pending the matter coming before the Court... on the 18th March 2011, Mulhall was served with his copy of the Safety Notice”.
LSC Coates states that he was not aware that police officers had attended an incident in relation to Ms Rowley and Mr Mulhall on 17 March 2011. LSC Coates states “I was not aware until much later of a Safety Notice being issued by Senior Constable Riddle in relation to a separate incident.” 21 March 2011 - Family Violence Intervention Order
On 21 March 2011, at Frankston Magistrates’ Court, the two FVIO applications were consolidated. Mr Mulhall was recorded as the Respondent and Ms Rowley as the AFM. A twelve-month FVIO was issued by consent, but without admission. The order prohibited Mr Mulhall from, amongst other things, following or contacting Ms Rowley, being within 200 metres of her house, or approaching within five metres of her personally.
Ms Rowley attended Court on that day accompanied by her friend, Priscilla McAlister (Ms McAlister). In her statement, Ms McAlister recalls waiting at the Court for several hours with Ms Rowley for the case to be called. While Ms McAlister did not recall Ms Rowley speaking to Mr Mulhall, she recalled both her and Ms Rowley being uncomfortable when they went outside for a cigarette and Mr Mulhall was there.
Ms McAlister recalled that Ms Rowley was told that there was a restraining order in relation to Mr Mulhall and that she could not take it off. Her general recollection is that when Ms Rowley left the Court that day she was happy with the order and the conditions it contained.
Thomas Mulhall states that Mr Mulhall was distressed by the prospect of being incarcerated.
March and April 2011
Ms Rowley’s medical records indicate that during General Practitioner (GP) visits in March and April 2011, she discussed the ongoing physical and emotional impact of Mr Mulhall’s assault and sought a referral for counselling and ongoing treatment for mental ill health.
On 14 April 2011, Ms Rowley was convicted and sentenced to a community-based order of nine months for charges regarding drink driving, careless driving and failing to wear a seatbelt. The community-based order was imposed due to Ms Rowley’s previous offences
through the 1990s and again in 2001, where she appeared before the Court for the offence of cultivating marijuana.
Mr Mulhall charged in relation to the 10 February 2011 family violence incident
On 23 August 2011, Mr Mulhall was charged by way of summons in relation to the family violence incident he perpetrated against Ms Rowley on 10 February 2011. Those charges included making a threat to kill, recklessly causing serious injury, recklessly causing injury, intentionally causing injury and unlawful assault against Ms Rowley. He was summonsed to attend Frankston Magistrates’ Court on 29 September 2011.
LSC Coates stated that there was delay in submitting the brief for the criminal charges: “due to accessing the appropriate and suitable charges given the facts of the seriousness of the injuries, the lack of admissions by MULHALL and that there were no independent witness to the actual assault. There was some concern over there being insufficient evidence in relation to a prosecution. However, it was agreed that given the injuries the amount of force used by MULHALL must have, at some point been excessive and inappropriate given the threat which ROWLEY could have posed.”
LSC Coates states that prior to issuing the charges he spoke to Ms Rowley and confirmed that she still wished to have the matter proceed to Court. LSC Coates reported that Ms Rowley told him “she felt it was necessary that MULHALL be held responsible for what he had done.”
Despite the FVIO being in place and the charges being issued, at an unknown time Ms Rowley and Mr Mulhall resumed contact. Regardless of this contact, Ms Rowley maintained that she wanted the prosecution against Mr Mulhall to proceed and remained a cooperative witness. A statement from a boarder who lived with Ms Rowley and Mr Mulhall at the time, and a statement from Mr Mulhall’s brother, both indicate that Ms Rowley’s position was that it was important for her that the charges proceed and that Mr Mulhall face the consequences of his actions. However, Ms Rowley’s insistence on the criminal charges proceeding is reported to have been a source of conflict between Ms Rowley and Mr Mulhall.
LSC Coates reports that he had numerous conversations with Ms Rowley and that she never indicated that she had been further threatened, assaulted or was having issues with
Mr Mulhall, “she never expressed concern for her safety.” He deposed that prior to her death, he was of the opinion that Mr Mulhall had been abiding by the conditions on the
2 October 2011 - Breach of Intervention Order
On 2 October 2011, police officers attended at Ms Rowley’s house in response to a report that Mr Mulhall had been assaulted by another man. As a result of this attendance, Ms Rowley provided a statement to Detective Leading Senior Constable Paul Smith (DLSC Smith) on 5 October, at which time it came to police officers’ attention that Mr Mulhall was in breach of the FVIO by being at Ms Rowley’s house.
DLSC Smith reported that he asked Ms Rowley about the FVIO and she told him: “she and MULHALL had planned on attending the Frankston Magistrates’ Court the following Friday being 7 October 2011 to have it revoked. I asked her why and she told me that things were good between the two of them and that she didn’t need it anymore. I did not give it anymore thought at that time as my main focus was on investigating the serious assault of MULHALL. At no stage did ROWLEY indicate to me that she was in any danger from MULHALL.”
The VPMG titled ‘Family Violence’ stated, at the relevant time, that a contravention of a FVIO is a criminal offence, that FVIOs need to be strictly interpreted and enforced, and that there is no such thing as a technical or minor breach. It also stated that an AFM could not consent to a breach and any claim by a respondent that they had so consented was not a valid reason to not authorise prosecution of the respondent. It was noted that where contravention appears to be with the agreement of the AFM, a police officer must advise the AFM of the appropriate procedures to vary or revoke the order.
The first edition of the Code of Practice, at 4.6.3.4, contained the same guidance. The terms of the current edition of the Code of Practice are very similar.
Ms Rowley’s death constituted a ‘reportable death’ under the Coroners Act 2008 (Vic) (the Act), as the death occurred in Victoria and was violent, unexpected and not from natural causes.22
The jurisdiction of the Coroners Court of Victoria is inquisitorial.23 The Act provides for a system whereby reportable deaths are independently investigated to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which death occurred.
It is not the role of the coroner to lay or apportion blame, but to establish the facts.24 It is not the coroner’s role to determine criminal or civil liability arising from the death under investigation, or to determine disciplinary matters.
The expression “cause of death” refers to the medical cause of death, incorporating where possible, the mode or mechanism of death.
For coronial purposes, the phrase “circumstances in which death occurred,” refers to the context or background and surrounding circumstances of the death. Rather than being a consideration of all circumstances which might form part of a narrative culminating in the death, it is confined to those circumstances which are sufficiently proximate and causally relevant to the death.
The broader purpose of coronial investigations is to contribute to a reduction in the number of preventable deaths, both through the observations made in the investigation findings and by the making of recommendations by coroners. This is generally referred to as the Court’s “prevention” role.
(a) to report to the Attorney-General on a death;
(b) to comment on any matter connected with the death they have investigated, including matters of public health or safety and the administration of justice; and 22 Section 4 Coroners Act 2008 23 Section 89(4) Coroners Act 2008 24 Keown v Khan (1999) 1 VR 69
(c) to make recommendations to any Minister or public statutory authority on any matter connected with the death, including public health or safety or the administration of justice. These powers are the vehicles by which the prevention role may be advanced.
All coronial findings must be made based on proof of relevant facts on the balance of probabilities. In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw.25 The effect of this and similar authorities is that coroners should not make adverse findings against, or comments about individuals, unless the evidence provides a comfortable level of satisfaction that they caused or contributed to the death.
In writing this Finding, I have conducted a thorough forensic examination of the evidence including the evidence given and submissions made during the inquest hearing, all of the witness statements contained in the coronial brief, submissions provided by the parties, and the responses to the recommendations made by the Royal Commission into Family Violence
Meaning of ‘family member’ in the Family Violence Protection Act 2008
Ms Rowley’s children maintain that at the time of her death, their mother was not in a voluntary and consensual relationship with Mr Mulhall. Ms Rowley’s son, Aaron, states that: “..our mum felt threatened, felt pressured, was in fear for her life, especially given the intensity of the attack on her in the February incident, in which Mulhall had attempted to murder her when she had requested him to leave in an attempt to end their relationship.… she felt trapped and obliged to allow the relationship to occur again in a bid to make it to the court hearing, where Mulhall was to face the charges of the February incident. This was a last resort for our mum at that time due to an apparent lack of support, assistance and protection provided. The lack of concern placed on these previous incidents by the police only further enforced the perspective of mum's that she had to do this to protect herself.”26
While there is evidence contained within the coronial brief that suggests that Ms Rowley and Mr Mulhall were in a relationship27 at the time of her death, I consider it important to
25 (1938) 60 CLR 336 26 Mention Hearing transcript, 37 – 38 27 In a statement given to police on 5 October 2011, about the assault on Mr Mulhall, Ms Rowley describes Mr Mulhall as her “partner.”27 Statements from friends and a boarder at Ms Rowley’s house, also indicate that they understood Ms Rowley and Mr Mulhall to be in a relationship
focus on the risk that Mr Mulhall posed to Ms Rowley rather than the nature of their relationship.
Focusing on whether or not Ms Rowley and Mr Mulhall were in a consensual relationship at the time of her death, has the potential to blame Ms Rowley for her own death and not address the important task of determining whether the risk that Mr Mulhall posed to Ms Rowley was appropriately assessed and controlled.
For the purposes of the Family Violence Protection Act 2008, the relationship between Ms Rowley and Mr Mulhall was one that fell within the definition of ‘family member’ as they had, at least at 10 February 2011, been in an intimate partner relationship. That incident and Ms Rowley’s death fall under the definition of ‘family violence’ as the term appears in the Family Violence Protection Act 2008, because both incidents involved physical, emotional and psychological abuse.
MATTERS IN RELATION TO WHICH A FINDING MUST, IF POSSIBLE, BE MADE Identity of the Deceased pursuant to section 67(1)(a) of the Act
On 19 October 2011, the Deceased’s identity was determined by Deputy State Coroner West by positive fingerprint match and circumstantial evidence, to be Joy Maree Rowley, born 17 September 1951.
Identity is not disputed in this matter and therefore required no further investigation.
Medical cause of death pursuant to section 67(1)(b) of the Act
On 18 October 2011, Dr Sarah Parson (Dr Parsons), a Forensic Pathologist practising at the Victorian Institute of Forensic Medicine, conducted an autopsy upon Ms Rowley’s body. Dr Parsons provided a written report, dated 12 January 2012, which stated that Ms Rowley’s cause of death could not be ascertained.
The post mortem examination was hampered by the degree of decomposition of Ms Rowley’s body that had occurred prior to her body being located.
A toxicological analysis conducted on Ms Rowley’s post mortem blood revealed an alcohol content taken from her leg of 0.9g/100mL and a vitreous humour content of 0.25g/100mL.
Circumstances in which the death occurred pursuant to section 67(1)(c) of the Act
On Friday 14 October 2011, Ms Rowley and Mr Mulhall went shopping in Frankston before attending the Grand Hotel at midday. Mr Mulhall consumed three pots of beer and Ms Rowley consumed three glasses of wine. At approximately 1.00pm, they left the Grand Hotel and travelled back to Rosebud where they stopped at the Rosebud Hotel and continued to consume alcohol.
Approximately two hours later, Mr Mulhall and Ms Rowley left the Rosebud Hotel and travelled to Ms Rowley’s residence in Rye.
At Ms Rowley’s residence, Ms Rowley and Mr Mulhall continued to drink alcohol and smoked cannabis together. Mr Mulhall claims that, while affected by alcohol and cannabis, they discussed an incident that occurred on 5 October 2015 where Mr Mulhall was assaulted by another man at Ms Rowley’s home.28 The discussion escalated into an argument.
According to Mr Mulhall, Ms Rowley stated that she had been in a recent sexual relationship with the partner of the man who assaulted Mr Mulhall.
Mr Mulhall states that he became enraged and strangled Ms Rowley using his hands as well as a necktie. Ms Rowley attempted to defend herself, however Mr Mulhall was sitting on top of her and he was too powerful. Mr Mulhall smothered Ms Rowley with a pillow until she was deceased. He covered her head with a pillowcase and then went to sleep with Ms Rowley’s body beside him.
After killing Ms Rowley, Mr Mulhall accessed her bank account on 12 occasions between 15 and 18 October 2011 and withdrew a total of $2,598.50. During this period, Mr Mulhall utilised Ms Rowley’s car as transport to bet on the Caulfield Cup and buy pizza before returning to sleep at Ms Rowley’s house on 16 October 2011.
On 17 October 2011, Mr Mulhall attended Crown Casino and later attended his mother’s house in Blairgowrie, where he informed his brother that he had killed Ms Rowley.
Mr Mulhall apparently considered turning himself in to St Kilda Road Police Station however, he changed his mind. Mr Mulhall shaved his head and beard to disguise himself and spent the night in a hotel room consuming alcohol.
28 Coronial Brief, Transcript of interview with Mr James Mulhall, 146-148
At approximately 8.55am on Tuesday, 18 October 2011, Mr Mulhall called Rosebud Police Station and reported that he killed Ms Rowley. He also called his daughter and informed her of his actions.
Police officers attended Ms Rowley’s residence. They gained entry via an unlocked window and located Ms Rowley lying on her back in an upstairs loft. Two open jewellery boxes were scattered on the floor and written on a couch seat cushion were the words “So sad so sorry I love you babe Joy Jim.”
Mr Mulhall subsequently caught a bus to Seymour and a train to Melbourne. He attended the Batman Hill Hotel where he consumed alcohol, before catching a taxi to the St Kilda Road Police Station. At approximately 8.45pm, Mr Mulhall presented himself at the counter where he was interviewed regarding the death of Ms Rowley.
At the time of Ms Rowley’s death, criminal proceedings in relation to the family violence incident that occurred on 10 February 2011 had not been determined.
Assignment of the coronial investigation
After Ms Rowley’s death was notified to the Court, Judge Ian Gray, State Coroner (as he then was) determined that the death was a ‘reportable death’ and commenced a coronial investigation into the circumstances of her death.
His Honour temporarily suspended his investigation, pending the outcome of Victoria Police’s charge of murder brought against Mr Mulhall. On 10 October 2012, in the Supreme Court of Victoria, Mr Mulhall pleaded guilty to murdering Ms Rowley and was convicted and sentenced to 19 years’ imprisonment with a non-parole period of 16 years.29
Upon recommencing his investigation, Judge Gray determined that it was necessary to obtain further information beyond that contained in the criminal brief. Judge Gray requested that the Coroners Prevention Unit30 examine the circumstances of Ms Rowley’s death as part of the Victorian Systemic Review of Family Violence Deaths (VSRFVD),31 focusing on the systemic responses to the family violence incidents involving Ms Rowley and Mr Mulhall.
29 R v Mulhall [2012] VSC 471 (10 October 2012) 30 The Coroners Prevention Unit is a specialist service for coroners established to strengthen their prevention role and provide them with professional assistance on issues pertaining to public health and safety 31 The VSRFVD provides assistance to Victorian Coroners to examine the circumstances in which family violence deaths occur. In addition, the VSRFVD collects and analyses information on family violence-related deaths.
Together this information assists with the identification of systemic prevention-focussed recommendations aimed at reducing the incidence of family violence in the Victorian community
As stated above, it is not the role of the coroner to lay or apportion blame, but to establish the facts. Therefore, my investigation focused on the interactions Ms Rowley and Mr Mulhall had with various agencies since 10 February 2011, to determine whether there are any matters related to public health and safety and the administration of justice that require review.
Judge Gray held a Mention hearing32 in this matter on 20 August 2015 and directed that he be provided with information, including statements, to address:
(a) the manner and timeframe within which Mr Mulhall was brought to account for the incident in which he perpetrated family violence against Ms Rowley on 10 February 2011;
(b) the arrangements which were put in place in the interim to provide for Ms Rowley’s safety, including the information and support that was provided to her;
(c) the responses to Mr Mulhall’s breach of the intervention order against him, which came to Victoria Police’s attention on 3 October 2011; and
(d) the policy and procedural context within which Victoria Police responded to the 10 February 2011 incident and subsequent incidents involving Mr Mulhall and Ms Rowley.
The letter contained a document titled ‘Attachment A’ which detailed the findings Judge Gray proposed to make.
32 The hearing was attended by members of Ms Rowley’s family, the Chief Commissioner of Police represented by Ron Gipp of counsel and the Coroner’s Investigator 33 Leading Senior Constable Anthony Coates, Leading Senior Constable Daniel Riddle and Detective Senior Constable Paul Smith
(a) the Chief Commissioner of Police, dated 26 February 2016;
(b) the individual police officers, dated 26 April 2016; and
(c) the family of Ms Rowley, dated 21 November 2016.
Both the Chief Commissioner of Police and the individual police officers stated that they were content to have this matter finalised without an inquest.
Mr David Grace QC, legal representative for Ms Rowley’s children, made a formal request for an inquest to be held. This application, inter alia, stated that based on the coronial brief, the matter needed to progress to an inquest for the following reasons:
(a) not all the relevant public issues relating to the death have been canvassed by the criminal law judicial process, nor by the contents of Attachment A;
(b) a chambers finding is insufficient to address all relevant issues;
(c) an inquest is needed to assist in maintaining public confidence in the administration of justice, the health services and public agencies including Victoria Police
(d) an inquest is likely to uncover systemic defects or risks not already known;
(e) an inquest may help to prevent other similar deaths;
(f) an inquest will determine whether restorative and/or preventative measures have been implemented in response to the death; and
(g) the investigation, to date, leaves a lot of unanswered questions as to the reasons for certain acts and omissions of various police officers and does not adequately address how procedures have been and will be improved to avoid a similar occurrence to another person in our community.
‘Decision by coroner whether or not to hold an inquest into death’) on 14 February 2017 that this matter be re-referred to the Victorian System Review of Family Violence Deaths for further investigation. The purpose of the further investigation was to ascertain whether there were other services with which Ms Rowley had contact, who had identified that Mr Mulhall posed a risk to Ms Rowley’s safety.
Prior to the commencement of the Inquest, an agreed summary of facts and a scope of hearing for the inquest was settled among the interested parties who were to be represented at the inquest.
The following scope of issues (scope) was proposed for examination during the Inquest:
(a) By reference to its present policies and training, what would Victoria Police (VP) expect of its members (VP members) if the circumstances faced by Ms Rowley in 2011 were to arise now. In particular:- i) how would the type of risk posed by Mr Mulhall to Ms Rowley currently be assessed by VP members?
ii) how would the type of risk posed by Mr Mulhall to Ms Rowley currently be managed by VP members?
iii) how would the type of risk posed by Mr Mulhall to Ms Rowley currently be communicated by VP members to a family violence victim?
iv) what method or methods would now be utilised by VP members to ensure that a victim of family violence such as Ms Rowley, adequately appreciated the type of risk that a perpetrator such as Mr Mulhall poses?
v) how would a family violence perpetrator such as Mr Mulhall currently be managed by VP members?
(a) prevent family violence;
(b) improve early intervention
(c) support victims
(d) make perpetrators accountable
(e) better coordinate community and government responses
(f) evaluate and measure strategies, frameworks, policies, programs and services
vi) how would the investigation and prosecution of Mr Mulhall for the serious assault of Ms Rowley in February 2011 now be managed?
(b) What training (including ongoing and refresher training) is presently provided by VP to VP members in relation to the matters set out in paragraph 1?35
(c) What supervision of VP members is currently undertaken by VP to ensure compliance with VP policies, procedures and training in relation to the matters set out in paragraph 1?
(d) What mechanisms for review and/or audit currently exist within VP to assess:- i) the adequacy of VP policies and training in relation to the matters set out in paragraph 1?
ii) the extent of compliance by VP members with VP policies and training in relation to the matters set out in paragraph 1?
Mr Ronald Gipp appeared on behalf of the Chief Commissioner of Police. Ms Marion Isobel appeared on behalf of LSC Coates, LSC Riddle and DLSC Smith.
Statements of AC McWhirter
(a) the creation of the Family Violence Command in March 2015, to “monitor Victoria Police’s organisational response to family violence, maintain organisational 35 Renumbered Paragraph 100(a)i)-vi) for the purpose of this Finding
accountability, and improve police responses to family violence, sexual assault and child abuse;”36
(b) the organisational structure of the Family Violence Command and its specialist units and resources available to Victoria Police members who are dealing with situations involving family violence;
(c) the procedures in place to ensure a timely execution of warrants;
(d) the completion of appropriate forms such as the L17;
(e) referrals to agencies;
(f) the review and follow-up of L17s;
(g) a consistent approach to contraventions of intervention orders;
(h) the ongoing review of victims’ safety; and
(i) the timely and appropriate investigation of family violence offences.
AC McWhirter’s statement of 15 December 2015 also spoke to the procedures or practical measures that were in place at the Rosebud Police Station between 10 February 2011 to late October 2011, and the overseeing actions of individual Victoria Police members regarding family violence procedures. The statement detailed the Victoria Police policies and procedures applicable to Ms Rowley’s family violence situation in 2011.
AC McWhirter’s second statement to the Court, dated 10 October 2017, sought to address:
(a) the changes made by Victoria Police regarding the management of family violence matters that occurred between February 2016 and September 2017;
(b) how Ms Rowley’s case may have been managed differently if the systems present as at the time of the statement had been in place in 2011;
(c) how the type of risk Mr Mulhall posed to Ms Rowley would now be assessed and managed;
(d) how the risk that Mr Mulhall posed to Ms Rowley would be communicated to a family violence victim as at the time of the statement; 36 Coronial Brief, Statement of Assistant Commissioner Dean McWhirter, dated 12 December 2015, 452
(e) how a perpetrator such as Mr Mulhall would be managed as at the time of the statement;
(f) the methods used to ensure that a family violence victim, such as Ms Rowley, appreciated the risk that Mr Mulhall posed, as at the time of the statement; and
(g) the steps that would be taken as at the time of the statement to ensure that a family violence victim, such as Ms Rowley, was provided with adequate support to maximise her chance of avoiding future harm from a perpetrator such as Mr Mulhall.
AC McWhirter’s viva voce evidence
Breaches of Victoria Police Policies and Procedures
(a) a failure to record the warrant issued in relation to Mr Mulhall following the 10 February 2011 FV incident on LEAP within 24 hours when the warrant could not be executed;37
(b) a failure to return to court the warrant issued in relation to Mr Mulhall following the 10 February 2011 FV incident after 7 days, in the situation where it remained outstanding for one month;38
(c) a failure to formally refer Ms Rowley to appropriate services or agencies, despite the fact that Victoria Police members sought a FVIO after the 10 February 2011 family violence incident and charges were to be laid against Mr Mulhall;39 37 T page 46, 4-11 38 T page 46, 12-17 39 T page 46, 18-23
(d) on 10 March 2011, when Mr Mulhall handed himself in to Victoria Police, he was bailed to a hearing in relation to the FVIO 12 working days later, when the Code of Practice required the first return date to be delivered in 5 working days;40
(e) in relation to the timing of charges against Mr Mulhall in circumstances where Mr Mulhall was interviewed on 10 March 2011 and was not charged until August 2011, the charges should have been laid as promptly as possible, namely on 10 March 2011, having regard to the resources available to the relevant Victoria Police officer and other competing priorities;41
(f) there should not have been doubt in some Victoria Police officers’ minds regarding the sufficiency of the evidence against Mr Mulhall regarding the FV incident, given the significance of Ms Rowley’s injuries as documented at Rosebud Hospital;42
(g) with the existence of a warrant in relation to Mr Mulhall, his bail conditions were not recorded on LEAP and were therefore not known to Victoria Police members who attended Ms Rowley’s residence on 17 March 2011, which was contrary to the usual practice at the CDEB of entering this information within one working day;43 and
(h) a failure to take action by way of laying charges, completing an L17 or referring Ms Rowley to appropriate services or agencies in relation to a breach of the FVIO by Mr Mulhall, when he was found by Victoria Police members who attended Ms Rowley’s home on 3 October 2011.44
AC McWhirter was not aware whether it had been raised with the relevant Victoria Police members from the Rosebud and Rye police stations that the Code of Practice and VPMs relevant to family violence had not been adhered to. AC McWhirter acknowledged there had been a failure of supervision, in that members’ failure to adhere to policy was not identified by the supervising officers of the Victoria Police members involved.45
Ms Rowley’s case demonstrates a failure by frontline Victoria Police officers to implement policies relevant to family violence which were in existence at the time of the family violence incidents involving Ms Rowley, and at the time of her death.
40 T page 46, 24-30 41 T page 46, 31; T page 47, 1-9, 15-20 42 T page 47, 25-31; T page 48, 1-7 43 T page 48, 9-18 44 T page 48, 21-29 45 T page 62; T page 120; T page 121
Warrants
There have been improvements regarding the visibility of unexecuted warrants, which are now placed on LEAP through ‘Leader Mark 2’. Where an application for a warrant is made, and a LEAP check on the subject of the warrant was made, it would now be identified in LEAP that the warrant application had been made, and if it was not executed within 24 hours a ‘Whereabouts Desired’ form is completed, which flags that the subject of the warrant has not been located. The ‘Whereabouts Desired” form is sent to CDEB to be uploaded into LEAP, as was the case for Mr Mulhall in circumstances described at paragraph 29. Were the same situation occurring today, the key difference is the application for the warrant would automatically be visible to Victoria Police members in LEAP due to the automatic uploading of this information via ‘Leader Mark 2’.
Following the compliance issue regarding return of warrants to court where the warrant could not be issued within 7 days, the current policy states that warrants are to be returned to court within 14 days. The existence of the warrant must be documented on LEAP, and Victoria Police must provide the court with a report, endorsed by supervisors, that sets out the circumstances preventing execution of the warrant. Compliance with the requirement to return warrants to Court within 14 days is managed through the AIM file process referred to in paragraph 123 of this Finding.
With regard to issues experienced in locating Mr Mulhall to execute the warrant, the implementation of the family violence information sharing scheme46 created by the new Part 5A of the FVP Act, will enable Victoria Police members to obtain information held by other agencies about the subject of the warrant to assist with location of perpetrators.47 Victoria Police Family Violence Training
At the time of both the family violence incident and Ms Rowley’s death, the Code of Practice and the VPMs were the key documents Victoria Police had in place informing members of the actions required in relation to family violence matters. The Code of Practice has been in place since 2004. At the time of the family violence incident involving Ms Rowley and Mr Mulhall in February 2011, the VPMs had been in place for approximately one year.
46 Family Safety Victoria, Information Sharing and Risk Assessment, https://www.vic.gov.au/familyviolence/familysafety-victoria/information-sharing-and-risk-management.html 47 T page 93, 3-18
As a result of all the inputs to those policy changes, which is normally, and in a lot of cases, in response to legislative change, they are formulated policy and the policy is then sent out as per a particular date. If it’s brand new policy that is circulated and if it is – it would then be, my expectation, that in the training officer sense, that would be picked up in regular training, throughout the course of their training cycle.”48
AC McWhirter observed that training is fundamental to the understanding and application of policy.49 Victoria Police is undertaking a full training needs analysis of the whole organisation to identify gaps in education, with the objective to identify education for every level of supervisory rank within Victoria Police. AC McWhirter anticipates members will receive education on the dynamics of family violence, power and control, coercive control, identifying risk, and other such issues within the family violence space. Beyond the broader training needs analysis will be analysis undertaken for family violence roles within Victoria Police. AC McWhirter has anticipated that all members in family violence roles within the organisation will receive specific family violence training relevant to their role.50
Current Victoria Police recruits now receive 30% more training than previous recruits, with career-long family violence training now mandatory for all members of all ranks.
In response to an education gap identified by Victoria Police, the RCFV made a recommendation that Victoria Police establish a Family Violence Centre of Learning with external academic governance to improve family violence education at all levels in the 48 T page 51, 8-22 49 T page 120 50 T page 59-60
organisation.51 The education provided to Victoria Police members by the Family Violence Centre of Learning will ensure that members appropriately take account of the criminality of family violence, and the dangers that exist in the family violence space.52 The family violence training will be delivered by the Family Violence Centre of Learning, via 21 Senior Sergeants across the 21 divisions who will ensure delivery of training in the workplace and online.
Review and Audit of compliance with and the adequacy of Victoria Police Policies and Procedures
In the case of the relevant officers who had dealings with Ms Rowley and Mr Mulhall, the supervision was inadequate.
AC McWhirter was unaware whether Victoria Police Command ever raised with the relevant Rosebud and Rye Victoria Police members that the Code of Practice and the FV VPMs had not been adhered to in Ms Rowley’s case. AC McWhirter acknowledged that considering the gaps in compliance, this should have been raised with the relevant officers.53
At present, supervisors are expected to undertake a quality assurance role regarding the management of family violence incidents in their region. This quality assurance role includes reviewing L17s and checking LEAP entries completed by members to ensure compliance with the Code of Practice. Checks and balances on compliance with Victoria Police policy and procedure relating to family violence have increased, and Victoria Police is moving toward a more structured approach to oversight and accountability.
AC McWhirter pointed to additional current means of ensuring members are complying with prescribed practices. Since 2012, Victoria Police members responding to family violence incidents create what are referred to as Accelerate Investigation and Management (AIM) files for open investigation. Where a divisional van attends a family violence incident, the attending officers are obliged to complete an L17, make a report, complete a 51 RCFV, Recommendation 42, https://www.vic.gov.au/familyviolence/recommendations/recommendationdetails.html?recommendation_id=215 52 T page 59 53 T page 61
risk assessment, and put in place either protective measures in terms of the options model, or to take action in relation to the perpetrator. Where the perpetrator is not available to the relevant Victoria Police member, and a complaint and warrant also exists, the cases are considered open investigations and are overseen by supervisors in police stations to ensure action is taken regarding the FV investigation.54 AIM files are to be reviewed by a supervisor on every shift at the station at which they are held.55
This pilot has required changes to the manner in which members processed family violence matters in the Victorian justice system, but will ensure that there is not an ongoing risk to the safety of AFMs by having delays in bringing perpetrators of family violence to accountability for their actions.
In terms of broader organisational compliance, AC McWhirter referred to examining the response to family violence in geographical areas. Further, an audit team operates within each region who conduct regular ‘function audits’ of compliance and accountability regarding family violence matters and other aspects of policing.56 AC McWhirter agreed that only through undertaking a nuanced assessment of cases involving family violence, Victoria Police would be in a position to identify where enhancements to policies and procedures are necessary. These detailed reviews, where undertaken, may identify potential supervision deficits that need to be addressed. Further, the nuanced and detailed reviews are one of the best methods available to Victoria Police to ensure that mistakes of the past in terms of non-compliance with family violence policy and procedure, are not repeated.
Victoria Police now respond to family violence-related deaths in two ways. Firstly, Family Violence Command undertakes an informal desktop review of the information recorded in LEAP, which focuses on whether there was previous family violence involvement.
Regional and divisional management where the homicide occurred are sent a document for their information. Regional and divisional management also conduct an assessment of whether there were any compliance issues or outstanding matters such as warrants.
54 T page 52 55 T page 91, 25-31; T page 92, 1-9 56 T page 58
AC McWhirter’s expectation is that any issues that arise from these desktop reviews are brought to his attention.57
Secondly, Family Violence Command have a formal, but discretionary, process whereby an intelligence brief is prepared because there are concerns about the nature of a particular case.
Clause 7.1.5 of the Code of Practice states that the role of the Family Violence Coordination Unit within Victoria Police is to manage the Systemic Review of Family Violence Related Deaths, and report to the Coroner as requested. AC McWhirter’s evidence was that such reviews are currently not occurring, and he expressed some concerns that such reviews may have implications for the criminal process.
Regarding current audit processes in place relevant to family violence, compliance is monitored on a case-by-case basis at a local level by Family Violence Liaison Officers who are Sergeants. Family Violence Advisors consider and report on any identified trends, and from August 2016, divisional Detective Senior Sergeants take frontline responsibility for Family Violence Investigation Units.
The Workplace Standard Inspection Manual, which applies to all work units in Victoria Police, requires every police station work unit relevant to family violence to conduct a compliance check of their investigations every 30 days, to ensure compliance with the Code of Practice. This check is conducted at station level.
At the Regional level, Victoria Police has four regions, each with its own risk assessment and audit process. These regional audit and risk units operate by examining 10% of files, and identifying gaps in practice by comparing documents completed by members against the policies and practices that regulate police response.58 The information gathered in this process is fed back to Senior Sergeants at the relevant work unit, who must then provide a response to the compliance issue raised. A global audit is prepared to inform management of what is occurring in practice, and organisational risks are identified from these audits. It is noted that these audits are not specific to the area of family violence; it is their purpose to identify risks across the entirety of the Victoria Police operating model.
At the Divisional level, Compstat is the organisational mechanism which reviews what is being done in each region and also within Commands. Compstat is comprised of the 21 divisions, and looks at specific parts of the operating model based on matters the Deputy 57 T page 52; T page 218 58 T page 191-193; T page 220
Commissioner of Operations identifies as requiring examination. Material is presented to Compstat that is relevant to organisational expectations and targets. If those measures and targets are not met, action items are identified and divisional management reports back to the Deputy Commissioner regarding remedial action.
At a State level, Victoria Police participates in the Systemic Family Violence Death Review Panel.
Victoria Police will be required to undertake two additional audits as a result of Recommendations 43 and 44 of the RCFV. Recommendation 4359 requires Victoria Police to ensure that specialist family violence position holders perform regular random file and case reviews in order to monitor compliance with the Code of Practice, for investigation of family violence and other important procedural requirements relating to family violence.
Recommendation 4460 requires the Victorian Government and Victoria Police to establish a regular cycle of comprehensive and independent audits of compliance with the Code of Practice for the investigation of family violence. The results of this audit should be published and include details of any divisional variation and measures that will be taken to resolve any concerns that arise from the audit. The performance measures in relation to the independent audit are yet to be finalised, and the sample size of the audit is still undetermined.
While one current external audit is on foot, AC McWhirter expressed that he favours audits occurring once the new family violence system is fully operational, in order to monitor how Victoria Police is responding to family violence.61 From 2019 and beyond, Victoria Police will be in a better position to assess with confidence, whether frontline members are giving full effect to the Code of Practice and VPMs, following the final rollout of family violence resources and a more pervasive audit process being in place.
The evidence indicates a concerted effort to achieve greater compliance with family violence policies and procedures within Victoria Police. AC McWhirter acknowledged: “we have moved an awful long way from where we were in 2004 to 2011…clearly we’ve moved a long way from 2011 to 2015, prior to establishing the Family 59 Victorian Government, Family Violence Reform, RCFV Recommendation 43 https://www.vic.gov.au/familyviolence/recommendations/recommendation-details.html?recommendation_id=214 60 Victorian Government, Family Violence Reform, RCFV Recommendation 44 https://www.vic.gov.au/familyviolence/recommendations/recommendation-details.html?recommendation_id=213 61 T page 219
Violence Command and clearly, my role is to actually make sure that that change is – continues and goes beyond where we currently are. We have a massive change program in this organisation, massive in terms of understanding, massive in terms of acknowledgement of the – depth and breadth of – of family violence and the obligation of Victoria Police members to act in accordance with legislation and policing.”62 Risk Assessment and communication of risk
In 2000, the CRAF was introduced as the key risk assessment tool for Victoria Police members’ use. In approximately 2004, the L17 was developed and introduced as the starting point for family violence risk assessment for frontline members. AC McWhirter’s understanding was that the L17 was developed as part of a CRAF, following engagement with stakeholders in the family warrant sector.63 Victoria Police members currently complete approximately 76,500 L17s annually.
The Chief Commissioner of Police’s submission to the inquest into the death of Kelly Thompson64 advised that at that time, a review of the L17 was being conducted. The review was to consider how to best identify CRAF risk and vulnerability factors and how to triage family violence incidents to ensure sufficient resources were being directed to the highest risk cases. AC McWhirter’s second statement to the Court indicated that the review was initiated by Crime Command in 2015, prior to the creation of the Family Violence Command. The L17 review continues today, following the RCFV recommendation that the CRAF be reviewed65 and the direction by then State Coroner Judge Ian Gray regarding the risk assessment process.66 AC McWhirter anticipates completion of the review after August 2018.
The current approach to risk assessment in the future involves the implementation of the Victoria Police Screening Assessment of Family Violence Risk and Threat Factors (Screening Assessment), a risk assessment tool employing a validated inter-partner violence risk assessment measure. This risk assessment tool has been developed through Victoria Police’s partnerships with Swinburne University and Forensicare to develop a tool consistent with the RCFV recommendations and coronial recommendations regarding risk 62 T page 62, 20-31 63 T page 72, 9-17
64 COR 2014 824 65 Victorian Government, RCFV Recommendation 1, https://www.vic.gov.au/familyviolence/recommendations/recommendation-details.html?recommendation_id=1 66 Inquest into the death of Luke Geoffrey Batty, COR 2014 855
assessment. The Screening Assessment requires members to ask specific questions relevant to risk and vulnerability to direct and focus their assessment of risk, and gives members clear guidance in relation to their decision-making and the steps they should take following assessment. 67
The Screening Assessment is being trialled in Divisions 2 and 3 of the North-West metropolitan area, and the document is available on ‘Leader Mark 2’ and is being automatically uploaded into the system, as the L17 is in other divisions. There is still a need for members to manually type information into the system upon their return to their station after attending a family violence incident.68
When queried regarding the risk Mr Mulhall posed to Ms Rowley, AC McWhirter acknowledged that the risk he posed at the time was that he might commit further acts of family violence against Ms Rowley, and that could result in physical or emotional harm, or even death.
When asked how the risk posed by Mr Mulhall would be managed by members today, AC McWhirter stated that he would expect that Mr Mulhall would have been charged at the first opportunity, and members would discuss with the AFM their level of risk and what steps need to be taken including arranging crisis accommodation, contacting Safe Steps, and the possibility of removing the perpetrator from the premises for the AFM’s protection. 69
The current expectation regarding risk assessment is that members would actively anticipate what steps need to be taken to manage the risk from the perpetrator to the AFM, and that information regarding ongoing risk factors, such as re-engaging with the perpetrator, be clearly discussed with the AFM.70
Victoria Police have made and are continuing to make, to improve their systems so as to ensure to the best of their ability that such circumstances do not occur again.
Proposed amendment to the Criminal Procedure Act 2009 (Vic)
A recommendation was sought by the Chief Commissioner of Police to amend section 16A of the Criminal Procedure Act 2009 to enable a summons to be served on an accused at least seven days before the return date of a matter, rather than 14 days. The additional time is said to be necessary to allow Victoria Police members sufficient time to investigate family violence matters and prepare a brief of evidence.
Section 72(2) of the Act provides that a “coroner may make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice.”
I must decline to make such a recommendation. While the proposed recommendation may indeed relate to the administration of justice, I am not satisfied there is a sufficient nexus between the proposed amendment and the death of Ms Rowley to make such a recommendation within the scope of the coronial jurisdiction, having regard to the words of section 72(2) of the Act.
Investigation of family violence-related incidents by the Criminal Investigation Unit
In Mr Grace’s submission, there needs to be much clearer policy and procedure put in place 71 T pages 45-48
regarding whether uniform members or members of the Criminal Investigation Unit should be taking carriage of matters for investigation and/or prosecution.
AC McWhirter described the ‘Accountability and Response Model’ regarding this decisionmaking process as an instruction for uniform members as to when they should refer matters to the Criminal Investigation Unit for investigation. The model provides direction in relation to which offences should be investigated or overseen by the Criminal Investigation Unit. When the Family Violence Investigation Units are rolled out across the divisions the same decision-making process will apply.72
In terms of the ‘Accountability and Response Model’, AC McWhirter indicated that there is always discretion regarding who manages the brief, with the vast majority of criminal investigation in the state remaining with frontline members, with oversight from supervisors in the Criminal Investigation Unit. AC McWhirter indicated that the matters that remain with frontline members are, by and large, non-complex matters where the offender is known and can be accessed fairly readily.73
Further to this model, the current AIM file model provides a 30-day time frame for review, where there is consideration as to whether the file should stay with the frontline member or be referred on for investigation and/or prosecution by the Criminal Investigation Unit. This decision is made with police station management,74 and is effectively a mechanism to either prompt further action to progress the matter on the frontline level, or to shift the investigation to the Criminal Investigation Unit (where required).
I am satisfied that, as a result of the AIM file model, there is a further layer of review regarding the decision whether to refer family violence matters to the Criminal Investigation Unit for investigation, or to retain the file at frontline member level. As such, I decline to make the recommendation suggested by Mr Grace.
Stand-alone offence of strangulation
accountability for serious offending and to improve victim safety. Family Violence Command produced to the Court an Issues Paper regarding this matter.75
In 2016, the Queensland Government introduced section 315A of the Criminal Code Act 1899 (QLD), which creates a new offence of strangling, choking or suffocating someone where there is a domestic relationship or domestic violence. The Australian Capital Territory, New South Wales, Northern Territory, Tasmania and New Zealand have also established specific offences relating to strangulation, with some offences limited to a family violence context, and others applying more broadly.
I note that Victoria, along with South Australia and Western Australia, currently does not have a stand-alone offence of strangulation or choking.
Currently, strangulation may be treated as a number of different offences under Victorian legislation. In many cases, it is likely that a charge of unlawful assault under section 23 of the Summary Offences Act 1966 (Vic) (Summary Offences Act) will be applied, which carries a maximum penalty of three months’ imprisonment. The sentence may be increased to six months if, in the Court’s opinion, the assault was of such an aggravated nature that it cannot be sufficiently punished under section 23 of the Summary Offences Act.76
Strangulation may be considered a more serious statutory offence against a person under current Victorian legislation. The Crimes Act 1958 (Vic) (Crimes Act) provides for the offences of:
(a) causing injury intentionally, with a maximum of 10 years’ imprisonment;77
(b) recklessly causing injury, with a maximum of five years’ imprisonment;78
(c) intentionally causing serious injury with a maximum of 20 years’ imprisonment;79 and
(d) recklessly causing serious injury with a maximum of 15 years’ imprisonment.80
such proof can be difficult to make out in the context of strangulation, given that there is often a lack of visible physical injury from strangulation.
Further, many of these offences require proof that the perpetrator intended to cause the victim injury or serious injury. However, researchers suggest that many perpetrators who use strangulation in a family violence context do not intend to injure their victims, but rather use strangulation to gain power and control over the victim. In this context, the available laws that require intent to cause bodily harm are unsuitable for application to this type of offending.81
Endangerment offences under the Crimes Act82 address circumstances where a person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death or serious injury. These offences may also be applied to strangulation. While these specific offences do not require that a victim suffer harm, with the harm associated with strangulation not being widely known, it may be challenging to argue that an ordinary person would understand the appreciable risk of serious harm or even death, as a result of strangling a person for any period of time.83
The introduction of a stand-alone offence for strangulation, suffocation or choking in Victoria may significantly help to ensure strangulation is treated commensurate with the risk it poses to victims, and remove the need to prove particular bodily harm or intent to cause injury. Such an offence will more effectively hold perpetrators to account for serious offending. Further, the new offence may build further awareness of the dangers and potential lethality of strangulation among police members, courts and community services practitioners.
I understand that Victoria Police Family Violence Command’s Issues Paper of a stand-alone offence of strangulation will be referred to the Department of Justice and Regulation for consideration of legislative amendment in due course.84 Family Violence Command’s work on this important issue and potential gap in legislation is to be commended, and I support their efforts to drive legislative change to better protect victims of family violence.
81 Family Violence Death Review Committee. (2014). Fourth Annual Report; Thomas, K.A., Joshi, M. & Sorenson, S.B. (2014). ‘Do You Know What It Feels Like to Drown?’: Strangulation as Coercive Control in Intimate Relationships. Psychology of Women Quarterly, 38(1), 127-137; Sorenson, S.B., Joshi, M. & Sivitz, E. (2014). A Systematic Review of the Epidemiology of Nonfatal Strangulation, a Human Rights and Health Concern. American Journal of Public Health, 104(11), 54-61 82 Sections 22-23 Crimes Act 1958 (Vic) 83 Douglas, H. & Fitzgerald, R. (2014) Strangulation, Domestic Violence and the Legal Response, Sydney Law Review, 253-254 84 T page 38, 9-14
Apology to Ms Rowley’s family on behalf of Victoria Police
AC McWhirter acknowledged there had been a failure to comply with relevant Victoria Police policy prior to Ms Rowley’s death, and he acknowledged the hurt and suffering felt by Ms Rowley’s family as a result of her tragic and untimely death.85 The apology was gratefully received by Ms Rowley’s family.
The approach taken by Victoria Police in this investigation and in its participation in the inquest, is to be commended.
RECOMMENDATIONS PURSUANT TO SECTION 72(2) OF THE ACT Systemic reviews of family violence-related homicides by Victoria Police
In his evidence, AC McWhirter advised that approximately one-third of family violence homicides involved previously known family violence.86 Victoria Police do not have a process analogous to the process which follows deaths involving police contact, and there is no formal process for internal review in Victoria Police following a family violence-related death.
In light of the deficits of compliance with Victoria Police policy and procedure that have been highlighted by Ms Rowley’s case, it is of concern that no review of the matter occurred proximate to her death, or at all, until the coronial investigation required Victoria Police to consider the issues raised by Ms Rowley’s death. This was a lost opportunity for Victoria Police to engage in meaningful reflective practice as early as 2011.
Such case studies would facilitate timely review of police performance, and implementation of remedial action where necessary. The need for consideration of whether such case study reviews would compromise any other systemic review that must be conducted could be addressed on a case-by-case basis.
85 T page 200, 20-28 86 T page 218
Review of resources and funding of family violence support services
In his final submissions to the Court, Mr Grace suggested that a recommendation be made regarding the funding and resourcing of agencies that provide counselling services for victims of crime, to determine whether they are sufficiently meeting the demand for services.
Recommendation 11 of the RCFV directed that the Victorian Government provide additional funding for specialist family violence support services to deal with the current crisis in demand and to ensure that victims of family violence receive appropriate support.87 This recommendation has been implemented, with the 2016–17 State Budget providing $153.2 million to strengthen specialist family violence services.
The 2017–18 State Budget provides a further $397.4 million over four years to continue the boosts in service levels for victims of family violence which was provided in the 2016-17 Budget. The Victorian Government have stated that this funding will be used to address additional demand pressures and service gaps related to specialist family violence services.88
Further, the Victorian Government website states in relation to family violence reforms: “A range of complementary reform work is also underway to ensure that victims of family violence receive appropriate support. This includes the redevelopment of the approach to family violence risk assessment and management, the establishment of Support and Safety Hubs, information sharing reforms and the Industry Plan.”89
Despite this increase in overall funding for family violence support services, there should be regular reviews as to whether the funding currently allocated to boost service levels for victims of family violence, is sufficient to meet the increasing need for family violence support services in Victoria.
87 Victorian Government, RCFV Recommendation 11, https://www.vic.gov.au/familyviolence/recommendations/recommendation-details.html?recommendation_id=14 88 Above n 79 89 Ibid
(a) that the identity of the deceased was Joy Maree Rowley, born 17 September 1951;
(b) that James Mulhall caused Joy Maree Rowley’s death;
(c) that Joy Maree Rowley died on or about 14 October or 15 October 2011, at 15 Observation Drive, Rye, Victoria, from an unascertained cause or causes; and
(d) that the death occurred in the circumstances set out above.
Ms Rowley was killed by Mr Mulhall, in circumstances where he was already facing criminal charges for a previous serious assault on her, and in violation of a FVIO which was in place prohibiting him from contacting or approaching Ms Rowley or her address.
I convey my sincere condolences to Ms Rowley’s family and friends at her tragic and untimely death.
Pursuant to section 73(1) of the Act, I order that this Finding be published on the internet.
(a) Mrs Nadine Power, Senior Next of Kin;
(b) Detective Leading Senior Constable Aaron Roche, Coroner’s Investigator;
(c) Chief Commissioner of Police;
(d) Victorian Government Solicitor’s Office;
(e) Detective Inspector Tim Day, Homicide Squad, Victoria Police;
(f) Judge Peter Lauritsen, Chief Magistrate, Magistrates’ Court of Victoria;
(g) Australian Community Support Organisation;
(h) Peninsula Health;
(i) Victorian Government; and
(j) Corrections Victoria.
Signature: ______________________________________
JUDGE SARA HINCHEY STATE CORONER Date: 31 July 2018
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