Deceased
Daniel Neil Thomas
Demographics
35y, male
Coroner
Coroner Katherine Lorenz
Date of death
2017-03-26
Finding date
2021-11-25
Cause of death
Gunshot wound to the head (self-inflicted)
AI-generated summary
Daniel Thomas, aged 35, died from a self-inflicted gunshot wound during a police siege. He had a history of substance-induced psychosis from ice use, with multiple psychiatric admissions in 2015-2016. Following discharge, he declined mental health follow-up and community treatment orders. The night before his death, he broke into a neighbour's house armed with a firearm, claiming to need 'answers' about perceived electronic harassment and mind control. Police established a siege after locating him. Early morning negotiations showed some promise—Daniel appeared to be considering surrender around midday. However, senior police withdrew the face-to-face negotiators, implementing a 'cordon and call' strategy to protect officer safety given the likely firearm presence. The coroner found this decision reasonable and consistent with police procedure, though acknowledging it represented a lost opportunity for continued dialogue. Negotiations continued via loudspeaker for several more hours before tactical entry revealed Daniel deceased from a gunshot wound. Clinical lessons include: managing disengaged voluntary mental health patients post-discharge, recognising suicide risk in psychotic presentations, and the tension between mental health management and police safety protocols in crisis situations.
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 2017 1402
OF VICTORIA AT MELBOURNE FINDING INTO DEATH WITH INQUEST Form 37 Rule 60(1) Section 67 of the Coroners Act 2008 Findings of: Katherine Lorenz, Coroner Deceased: Daniel Neil Thomas Delivered on: 25 November 2021 Delivered at: Coroners Court of Victoria, 65 Kavanagh Street, Southbank Hearing date: 11 - 15 October 2021 Appearances: Ms Rachel Ellyard appeared to assist the Coroner, instructed by Mr Lindsay Spence, Principal InHouse Solicitor of the Coroners Court of Victoria Mr Ron Gipp appeared on behalf of the Chief Commissioner of Police instructed by the Victorian Government Solicitor’s Office
Mr Thomas’s death was reported to the coroner as his death was violent, unnatural and unexpected and because he was, immediately before his death, a person placed in custody or care. The relevant definition of a person placed in custody or care under the Act includes a person who a police officer is attempting to take into custody. Accordingly, the death is within the definition of a reportable death pursuant to section 4 of the Coroners Act 2008 (Vic) (the Act).
The jurisdiction of the Coroners Court of Victoria is inquisitorial.1 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.2
It is not the role of the coroner to lay or apportion blame, but to establish the facts.3 It is not the coroner’s role to determine criminal or civil liability arising from the death under investigation,4 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,”5 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.
1 Section 89(4) Coroners Act 2008 (Vic).
2 Preamble and section 67 Coroners Act 2008 (Vic).
3 Keown v Khan (1999) 1 VR 69.
4 Section 69(1) Coroners Act 2008 (Vic).
5 Section 67(1)(c) Coroners Act 2008 (Vic).
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 comments and recommendations by coroners.
The coronial investigation in this case was undertaken by a member of Victoria Police who was appointed as the coroner’s investigator, Detective Sergeant Rodney Stormonth from the Homicide Squad, who prepared a coronial brief.
An Inquest is mandatory in respect of Daniel’s death pursuant to section 52(2)(b) Coroners Act 2008 as he was, immediately before death, a person placed in custody or care as he was a person who a police officer was attempting to take into custody.
All coronial findings must be made based on proof of relevant facts on the balance of probabilities.6 In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw.7 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.
I took over the carriage of this investigation in February 2021 from Deputy State Coroner English.
The Inquest was held on 11 – 13 October 2021. A further day of oral submissions by the interested parties was heard on 15 October 2021.
Evidence
This finding draws on the totality of the coronial investigation into Daniel’s death, including the court records maintained during the coronial investigation, the Coronial Brief, Medical records and associated material, the evidence adduced during the Inquest and oral and written submissions provided by Counsel Assisting and counsel representing the interested parties.
In writing this finding, I do not purport to detail all the body of evidence before me. I have referred to relevant parts of it and only in such detail as appears warranted by the scope of the Inquest, its forensic significance, and the interests of narrative clarity. The absence of reference to any particular aspect of the evidence should not lead to the inference that it has not been considered.
6 Re State Coroner; ex parte Minister for Health (2009) 261 ALR 152.
Daniel was born on 17 July 1981 and was the middle son of Julie and Stephen Thomas. His parents separated in 1986 and Daniel lived with his two brothers Mark and Travis, at Korumburra. Daniel was good at school, was popular and had many friends. His mother used to call him “Mr Personality.”
Daniel played basketball, had a paper round and played trumpet in a band he started in high school in 1994 and left after year nine to commence an apprenticeship in baking with his uncle, Peter Connell, at the Mirboo Bakery.
When he was 18 or 19 years old, Daniel moved to the city with his brother Mark. With Mark’s help, Daniel got a job at Containers Packaging (now known as VIP Packaging) as an apprentice fitter and turner. Daniel and Mark lived together for the next 15 years or so, with others, including Mark’s ex-partner and several other people. In or around 2012, Daniel chose to break contact with Mark.8
Daniel continued to work at VIP Packaging at Laverton North and became friends with Jason Ashley during this time. Mr Ashley observed that Daniel was a hard worker who did all the overtime he could. Mr Ashley and Daniel lost touch for a few years when Mr Ashley moved away with his family but reconnected again about a year before Daniel died. Mr Ashley noted that when they reconnected, notwithstanding that Daniel was using the drug known as Ice (methylamphetamine) quite heavily he was still working at VIP Packaging. During this time, Daniel was living in a town house in Bethany Road, Werribee (Bethany Road) on his own with his dog.9 Hospital Admissions
Daniel had a mental health history, with episodes of significant mental illness resulting in inpatient presentations to the Werribee Mercy Hospital between January 2015 and March 2016.
8 M Thomas, Coronial Brief (CB) 45.
9 J Ashley, CB 51.
Admission on 31 January 2015 to the Emergency Department
Daniel was assessed by ECATT team after presenting to the Emergency Department at the request of his employer. He had been smoking Ice and using Seroquel. He reported auditory and visual hallucinations post Ice use. On review in the emergency department “no psychotic symptoms were elaborated and support strategies were discussed for cessation of methamphetamine use.” The hospital records refer to engagement with a GP in or around 2010 or 2011 related to depression and prescribed fluoxetine. He was discharged home.10 Admission on 14 December 2015 to 8 January 2016 Inpatient Psychiatric Unit.
Daniel was admitted to the Inpatient Psychiatric Unit after being brought into the Emergency Department with psychotic symptoms under an Assessment Order11 by police after having broken into his neighbour’s house. Daniel told the treating team that he and his dog had been ‘hypnotised’ and have come under the influence of ‘black magic’. He believed his neighbours were responsible for this and they were punishing him for causing a miscarriage and that they had set up pinhole cameras in their front door and in his house to spy on him.
His medical records indicate that Daniel had been smoking Ice for many months prior to his first hospital admission, sometimes daily. He reported that he had previously used cannabis in high volumes but had found that ‘it brought him down’ so he switched to Ice on the recommendation of an acquaintance. During his admissions, Daniel was diagnosed with substance induced psychosis, pathological gambling and amphetamine dependence. The Assessment Order was upheld to a Temporary Treatment Order. He was prescribed Olanzipine 30 mg but the dosage was reduced to 20 mg daily due to tremors. His symptoms gradually improved over the course of his stay and he accepted treatment on the ward. He did not accept that his symptoms were related to Amphetamine use. 12
11 Under the Mental Health Act 2014 (Vic), an Assessment order authorises the compulsory assessment of a person to determine whether the person needs compulsory mental health treatment.
The treatment plan was to discharge Daniel on a community treatment order with ongoing public mental health follow up through case management support at Wyndham Clinic. His Temporary Treatment Order was subject to a Mental Health Review Board hearing on 8 January 2016. At the hearing, the Mental Health Tribunal revoked his Temporary Treatment Order and he was discharged to the community later that day as a voluntary patient. He was referred for case management to the Wyndham clinic and for CATT follow up and medication supervision. Daniel was contacted by Wyndham clinic with an offer of case management as a voluntary client, however he declined. According to Dr Banerjee, because Daniel was then a voluntary client, the mental health team did not pursue this further. According to Banerjee, enforcement of medication supervision was also not an option if a voluntary client did not want engagement.
On 21 March 2016, Daniel was brought to hospital by police and placed on an Assessment Order in the Emergency Department after a neighbour heard Daniel shouting and smashing things inside his house and called police. Attending police found Daniel to be aggressive, hostile, emotional, sweating and with bleeding superficial cuts on his hands. Daniel reported to police that he was hearing voices and believed people were after him. He reported that people had hypnotised him and his dog and were using ‘black magic’ on him. Daniel told police that he was destroying the house and smashing things in order to find the bugs that had been hidden as recording devices. Daniel admitted to clinical staff to having used ice prior to the admission.
On 22 March 2016, consultant psychiatrist, Dr Banerjee reviewed Daniel and found him to be irritable and guarded, not wanting to disclose his mental health condition. Doctor Banerjee diagnosed Daniel to be suffering from a drug induced psychosis, and given his poor social supports, poor insight and gross impairment of judgement, concluded that Daniel needed ongoing stay and observation at the inpatient psychiatric unit., Dr Banerjee upheld an involuntary treatment order and completed a Temporary Treatment Order for him on 22 March 2016.
During his inpatient stay, Daniel became extremely agitated about his pet dog, telling hospital staff that the dog was at home inside the house alone without food or water. Out of concern for the distress experienced by Daniel, Dr Banerjee approved a plan for Daniel to be escorted home for a brief period to allow him to feed his dog and return. Daniel promised to return once the dog was fed.
On 22 March 2016, two clinicians accompanied Daniel in a taxi to his premises. After arriving at the house and attending to his dog, Daniel refused to return to the hospital. After some time, the staff returned to Mercy Hospital and initiated the procedure for absconded patients pursuant to the hospital’s Absent Without Leave (AWL) procedure. Staff then contacted the police to inform them of what had occurred and that Daniel was required to return to the hospital. Daniel was also placed on the AWL register, requiring the ward team to follow up discharge had been finalised.13
On the afternoon of 22 March 2016, the hospital had multiple calls with police.14 Police reported to hospital staff that Daniel had barricaded himself inside his house but, because police knew his whereabouts and he did not pose an acute risk to himself, they were unable to enter by force.
Medical records indicate the treating team did not consider there was an imminent risk of suicide or homicide, but they believed there was an ongoing risk and that Daniel needed to be brought back to hospital. Accordingly, Daniel remained on the Temporary Treatment Order and staff continued attempts to contact him to attend the ward for review of his mental state and assessment by a consultant.
Treatment order revocation and discharge
On 29 March 2016, hospital staff attempted to contact Daniel by phone to request that he come to the hospital for a review. Daniel answered the phone but declined to attend. A mental health state examination over the phone revealed no concerns. The team considered that there were no acute risks and no perceptual disturbance. The nurse in charge again made attempts to contact Daniel on Tuesday 5 April 2016, however his phone was disconnected.
Daniel remained Absent without Leave until 8 April 2016, when the hospital discharged him.15
On 15 April 2016, Daniel’s Temporary Treatment Order was revoked by the Mental Health Tribunal.
13 Dr Banerjee, CB 67 and nursing progress notes from admission.
14 Mercy Health Discharge Summary.
15 Mercy Health Discharge Summary, Dr Banerjee CB 69.
Events after discharge
Following his discharge, Daniel lost his job at VIP packaging and was also evicted from Bethany Road. Mr Ashley offered him a place to stay at a property located at Kookaburra Avenue, Werribee (Kookaburra Avenue).
In October 2016, Daniel and Ashley moved in with Mr Ashley's mother Lynette Ashley (Ms Ashley) at a property located at Bernhardt Avenue, Hoppers Crossing (Bernhardt Avenue), residing together in the back shed. Mr Ashley recalled that Daniel was consuming Ice daily.
In November 2016, Mr Ashley moved back to Kookaburra Avenue while Daniel stayed with Mrs Lynette Ashley at Bernhardt Avenue. Then, in March 2017, Daniel moved out of Bernhardt Avenue and moved back to Kookaburra Avenue. He was staying at the house alone.
CIRCUMSTANCES IN WHICH THE DEATH OCCURRED PURSUANT TO SECTION 67(1)(c) OF THE ACT Events of 24-25 March 2017
A few days after Daniel moved out of Bernhardt Avenue, Ms Ashley became concerned for Daniel’s welfare. On Friday 24 March 2017, she called ‘000’ and asked police to attend Kookaburra Avenue to perform a welfare check.16 Police attended and checked the house with her, but Daniel was not there. The following day, Ms Ashley again attended at Kookaburra Avenue again to look for Daniel, but he was not there, and it looked as though he had not been there overnight.17
At approximately 9.20 pm on 25 March 2017, Ms A18 returned to her home at an address in Hoppers Crossing, next door to Daniel’s previous house at Bethany Road. Ms A’s husband and three children were in the car as they were about to go out again. She opened the front door and turned the light on, and walked down the hallway to the lounge area, where she observed Daniel standing between the couch and the kitchen bench.19
Ms A observed that Daniel appeared to be holding a silver-coloured handgun with both hands pointed towards the ceiling, however he didn’t threaten Ms A or point the gun at her.
Ms A said, “Please don't shoot me, I have a husband and three babies in the car.” 16 L Ashley, CB 60.
17 L Ashley, CB 60.
18 A Pseudonym.
19 Ms A, CB 158.
Daniel said, “Look, I just want answers.” Ms A said, “We are going to Coles, my husband is waiting outside.” Daniel said, “When I used to live here my dog ran out, I knew something was wrong with him.
I heard noises in my head; I don't know if it was you making the noise or the other neighbour or if it is was in my head.” Ms A said, “I tried to explain to you, about the noise, it was from the baby.” Daniel said, “The gun is not for you, it is for me.”20
Daniel told Ms A that he had broken in through the window and asked her not to tell the police. Ms A told Daniel that she was leaving to do the shopping an asked him not to be inside her house when she got home. Ms A returned to her car and drove straight to the Wyndham North Police Station and reported the incident.21 Police Operation
At around 10.00 pm on 25 March 2017, Acting Sergeant (A/Sgt) Tem Hawkes from Wyndham North Police Station co-ordinated police units to attend Bethany Road Hoppers Crossing. He also notified the Critical Incident Response Team (CIRT) who advised they would monitor the situation. Police then checked the premises at Bernhard Avenue and Kookaburra Avenue throughout the evening of the 25 March 2017 and into the early hours of 26 March 2017, however Daniel was not located.22
At 6.10 am on 26 March 2017, A/Sgt Patrick Brady took carriage of the police operation to locate Daniel. According to A/Sgt Brady, police held significant concern that Daniel was possibly under the influence of drugs and suffering a psychotic episode, was in possession of a firearm, and posed a risk to the members of the public, the police, and himself.
Later that morning, A/Sgt Brady received information from Ms Ashley that Daniel would most likely be at Kookaburra Avenue. Ms Ashley agreed to attend with police to unlock the front door.23 20 Ms A, CB 158-159.
21 Ms A, CB 159.
22 T Hawkes, CB 162-164.
23 P Brady, CB 169; L Ashley, CB 60.
Upon arrival, Daniel could be heard moving around in the house. Ms Ashley tried to talk to Daniel for about five minutes, trying to convince Daniel to come out of the house. He did not respond. Police then directed Ms Ashley to move away from the house.24
At approximately 10.00 am, CIRT negotiator Leading Senior Constable (LSC) David Atchison attended at the scene. He began making enquiries with North West Mental Health (NWMH) to ascertain if Daniel was known to them in order to assist negotiators with any communication strategies for him. According to LSC Atchison, contact with mental health providers is standard practice prior to making any attempt at communication in a situation of this kind. NWMH informed LSC Atchison that Daniel to known to them and had previously been admitted to the Werribee Mercy Hospital. The staff at NWMH were unable to provide any communication strategies at that time, as nothing else was known of him. LSC Atchison then made enquiries into any relevant contact numbers for Daniel and history regarding contact with police.
At approximately 10.35 am, police units arrived at Kookaburra Avenue. The front house windows were covered, preventing police from seeing inside. A/Sgt Brady then attended the side gate where he hopped onto the wooden fence and proceeded across, gaining access to the rear yard. Immediately behind following A/Sgt Brady was CIRT member, Senior Constable (SC) Kilsby.
A/Sgt Brady stood under the car port near a glass sliding door and observed Daniel walk into the kitchen where he went to the end of the kitchen bench and lit up a cigarette. A/Sgt Brady could not see a firearm but observed a screwdriver on the bench.
Daniel was facing out towards the back door towards police but with his head down. He had his head in the palm of his hands crying and shaking his head. A/Sgt Brady attempted to engage Daniel in conversation, introducing himself as “Pat” and telling Daniel that he was there to help him. Daniel appeared emotional and crying. Daniel said, “I don’t want you’re [sic] fucking help I know what you’re going to do to me, I’m not going back to the psych ward”.25 24 L Ashley, CB 60 – 61.
25 P Brady, CB 170.
SC Kilsby positioned himself near the back door, approximately three metres away from Daniel with the glass sliding door and kitchen bench separating them. SC Kilsby tried to open the door but it was locked. Daniel was crying and saying he didn’t want to go to jail.26 SC Kilsby gave Daniel the ‘surrender plan’, which was for Daniel to go to the front door with nothing in his hands and to await further instructions from police. SC Kilsby described Daniel as being withdrawn and depressed looking. According to both police officers, Daniel made no threats to himself or others.
Soon after, LSC Englesman requested that CIRT negotiators SC Tsinaris and LSC Atchison attempt to negotiate with Daniel to surrender at the front door. After commencing negotiations, A/Sgt Brady left the area to return to the front of the property and SC Kilsby returned to his car.
SC Tsinaris also observed Daniel to be standing at the end of the kitchen bench, leaning on his elbows with his head in his hands, facing the rear glass sliding doors. SC Tsinaris stood under the carport near the glass sliding doors, approximately two metres from Daniel.27 SC Atchison remained close by, observing.28
As SC Tsinaris attempted to engage with Daniel, LSC Englesman prepared for full CIRT deployment, in accordance with CIRT standard operating procedures. This required equipment to be brought to the including ballistic vests, having a cordon in place and and to prepare for use of tactical options to resolve the incident if needed.
SC Tsinaris explained to Daniel that police wanted Daniel to come out safely and to get help for him. This went on for some time. Daniel was emotional and crying but was not acting in a threatening manner to either himself or police.
On the day of the incident, Senior Sergeant (S/Sgt) Dean Allen was performing the role of divisional supervisor (265) for CIRT. This role is performed on availability, meaning that S/Sgt Allen was ‘on call’ and available to be recalled to duty when required.
26 S Kilsby, CB 209-210.
27 G Tsinaris, CB 219.
28 D Atchison, CB 205.
Sergeant Peck told S/Sgt Allen about the aggravated burglary the evening before and that Daniel had been located earlier in the morning at Kookaburra Avenue but was refusing to surrender to attending police, and that he had threatened to kill himself if police came inside.
Sgt Allen concluded in the call that it was not known if Daniel was in possession of a firearm or any weapons.29
Following the call, Sgt Peck called A/Sgt Peta Probert, to do a handover as Sgt Peck was finishing his shift and A/Sgt Probert was taking over responsibility as the CIRT team leader.
A/Sgt Probert then proceeded to drive towards Werribee.
Foot was told that CIRT had taken over the inner cordon and all police members were appropriately equipped.30
29 D Allen, CB 197-198.
30 A Foot, CB 176.
According to A/Sgt Brady, while talking to S/Sgt Allen, LSC Edwards from CIRT advised Brady of the latest ‘update’ that alleged that Daniel had threatened to kill himself if anyone came in the house.31
According to A/Sgt Brady, on hearing this, all members placed on tactical police gear “as we now had a serious threat directly from Thomas”. Because of the alleged threat, and because of the possibility that Daniel was in possession of the firearm or other weapon, A/Sgt Brady moved local units further out away from the address and requested that no person walk in front of the property.
A/Sgt Brady then requested to have Sgt Damien O’Mahoney take over his role as the supervising sergeant for the area while he took control of this incident as it was now considered a siege.32
At around this time, SC Tsinaris had the following conversation with Daniel: Tsinaris: “I know this must be rock bottom for you right now, but with some help you can move forward”.
Daniel: “I’ve got nothing to live for”.
Tsinaris: “Do you have family or a girlfriend?” Daniel: “No, I’ve got nothing to live for”.
Tsinaris: “You’re still young. You are only 36 years old. You can have a family one day and see your kids grow up. There’s plenty to live for. It’s all ahead of you. But first you need to deal with what’s happened today and last night”.
Daniel did not respond.
Tsinaris: “There’s help there for you if you want it, but you need to help yourself by reaching out for it”.
Daniel: “Just stop talking so I can think. Give me a couple of minutes to think”.
31 P Brady, CB 171. See also notes of P Brady, CB 921.
32 P Brady, CB 171.
According to SC Tsinaris, Daniel then started walking around in the kitchen. This was the first time that he moved from the end of the kitchen bench. SC Tsinaris did a quick scan of him and was satisfied that he was not in possession of any weapons.
After two minutes the conversation continued: Tsinaris: “What are you thinking?” Daniel did not reply.
Tsinaris: ‘You know what the right decision is. It’s to come outside with nothing in your hands where you will be met by police”.
Daniel: “Just give me a couple more minutes”.
At approximately 11.56 am,33 SC Tsinaris observed as Daniel moved through to the lounge area which was directly next to the kitchen. He sat on the lounge. SC Tsinaris could only see the back of his head. SC Tsinaris informed SC Atchison who was standing to SC Tsinaris’ left out of sight of Daniel that he had moved to the lounge and that Daniel had said that he wanted a couple of minutes to think.34
SC Tsinaris also told LSC Engelsman that he had had some meaningful conversation with Daniel, who was contemplating his options, and surrender was possible. Other than being emotional and crying, he was not posing a threat to members at the back of the house. LSC Engelsman passed this information on to A/Sgt Probert, who was moments away from being on scene.35
At approximately 12.00 pm, A/Sgt Probert arrived at the scene and assumed team leader duties from LSC Engelsman. According to her evidence, A/Sgt Probert understood at this stage that no one at the scene had sighted the firearm, nor had Daniel stated that he had a gun or was going to use a gun.
At 12.01 pm, SC Tsinaris reported over the CIRT radio channel that Daniel had asked for a couple of minutes to consider whether to surrender.36
34 G Tsinaris, CB 221.
35 S Engelsman, CB 195 and CIRT annotated transcript of the CIRT TAC Channel, CB 887.
Sometime between midday and 12.15 pm, A/Sgt Probert directed that SC Tsinaris and LSC Atchison were to move away from his position and suspend face-to-face communications.37
At the time, there was a community football match underway at the park across the road from the premises. Police directed that the football game stop, and the park was evacuated. Houses adjacent to the premises were also evacuated.38
Both SC Tsinaris and LSC Atchison withdrew from their positions at the rear sliding glass door as directed and moved to an adjacent property to attempt to contact Daniel by telephone on the numbers provided to them. However, all contact numbers relating to Daniel were either disconnected or had been reassigned to new customers. The last time that SC Tsinaris sighted Daniel he was sitting on a lounge. SC Tsinaris thought Daniel was considering the options provided to him.
At approximately 12.15 pm, S/Sgt Allen had a phone conversation with an Inspector from the Special Operations Group (SOG) about whether the incident met the criteria for attendance by the SOG.
SC Tsinaris then used the Long-Range Acoustic Device (LRAD) to communicate with Daniel, instructing him to walk out the front door, with nothing in his hands, where he would be met by police. SC Tsinaris repeated that he wanted Daniel to come out safely and that police were there to help him. Daniel did not respond. SC Tsinaris said that occasionally Daniel could be heard screaming but he was unable to understand what he was saying from his position as Daniel was inside the house.
After this, the siren on the LRAD was activated. This is a pulsating warning tone that can be uncomfortable for the person it’s directed at and was a strategy to encourage Daniel to come out. He did not.
At approximately 1.25 pm, A/Sgt Probert instructed the team to remove timber covering a window just right of the front door. At that time, police could hear Daniel to tell them to get away from the window. They placed the LRAD on top of the garbage bin facing the open window about 2 meters away. The LRAD siren was activated again and several more times throughout the siege without success.39 37 D Atchison, CB 206.
38 P Probert, CB 609 - 610.
39 P Probert, CB, 610; M McConnell, CB 212; D Atchison, CB 212.
At 1.30 pm, A/Sgt Probert authorised members at the rear of the property to throw multiple items, including rocks on the roof in an attempt to confirm whether there were signs of life internally within the house. Daniel demanded that the police stop but refused to come out of the house.
At 2.10 pm, after consulting with S/Sgt Foot and his reliever, Acting Senior Sergeant (AS/Sgt) Tim Jacobs, a formal request was made for SOG to attend.
At 3.55, Operator 113 from SOG arrived and commenced planning for SOG to take over the inner cordon.
At 4.00 pm, SC Ramirez and SC McConnell, the afternoon CIRT negotiators relieved SC Tsinaris.
At approximately 4.30 pm, the SOG took charge of the inner cordon. In consultation with the SOG Inspector, CIRT negotiators SC Ramirez and SC McConnell remained to assist with negotiation. A/Sgt Probert and Sgt Ooi remained at the scene to supervise the negotiators.40
SC Ramirez and SC McConnell continued communications over the LRAD, continually telling Daniel to walk out the front door with nothing in his hands where he would be met by police. Daniel did not respond. SC McConnell continued these communications until the SOG armoured vehicle approached the front door. SC Ramirez was in the rear of the vehicle and once it was in position he began communications using the loud speaker in the vehicle.
At approximately 4.54 pm, whilst negotiations were continuing via a loud speaker at the front of the address, SOG Operator 126 noticed Daniel through the kitchen window.41
At 5.20 pm Inspector Allison overheard on the SOG tactical radio channel that Daniel had said he has a gun in his hand, however SOG operatives could not see a firearm.42
At approximately 5.20 pm, SOG tactics were deployed to breach the front door of the premises.43 As this was occurring Daniel was heard yelling words to the effect of, “I’ve got a gun in my hand, go away”.44 Police could hear muffled sobbing and crying.45 40 P Probert, CB 611.
41 Operator 126, SOG Operative, CB 272.
42 M Ashley, CB 251-252.
43 Subject to a Suppression Order dated 15 October 2021.
44 Operator 65, CB 265; Operator 126, CB 273; Operator 145, CB 285.
45 Operator 126, CB 273.
Police employed further tactical options including entry to the house by a police dog, and a bomb clearance robot. Neither of these methods located Daniel and who was believed to be in a bedroom with the door closed.46
At 6.07 pm, Inspector Allison received a report that a robot had been through the house as far as possible (it was unable to access rooms with doors closed) but could not locate Daniel.
SOG operatives had heard sounds of cupboards opening/closing and believed Daniel may be secreted in a wardrobe/cupboard or within the roof cavity. SOG operatives had also smelt the burning of cannabis.
At 6.20 pm, Inspector Allison was notified that the police dog had indicated to its police handler that there may be a person in a room with the door closed. Sounds of whimpering were heard to be coming from inside the house.
At 7.21 pm, approval was given for a tactical entry of the premises by SOG Operators.47
At 7.37 pm, Daniel was located lying with the right side of his face on the floor, and a firearm directly beside his body. There was a considerable amount of blood coming from Daniel’s left ear, and a pool of blood under the right side of his face. Police were unable to find a pulse and it appeared that Daniel was deceased.48 Scene Examination
On 27 March 2017 the scene was processed by the Major Crime Scene Unit (MCSU) and the Ballistics Unit. Located in the hallway was a hand-written note which read: “I Daniel Thomas am the owner of all hydro equipment on this property, there is and has been no involvement from the other people at this property regarding anything illegal. I jumped the power without their knowledge. I found the gun and bullets in a park bin after seeing someone dump it in their suspiciously. Tell Lyn and Jason I am sorry, I thank them for all their help and support and taking care of the only love I have left, my dog Jack.
Unfortunately since I lost my job of 16 years I have wanted to end my life as well as for reasons in which no one believes things have been done to me, hypnotism electronic harassment. I am not on drugs. I am not or never have been a danger to anyone else. I was the victim of a crime involving hypnosis internet elec harassment to the point where they drove me temporarily insane on countless occasions. IT WAS NOT DRUGS!! ICE DID NOT
DO THIS TO ME!!!”49 46 Operator 65, CB 265.
47 Operator 65, CB 265-266; Operator 126, CB 273-274; Operator 145, CB 286-287.
48 Operator 145, CB 287.
49 H Wilsher, CB 78.
IDENTITY OF THE DECEASED PURSUANT TO SECTION 67(1)(a) OF THE ACT
MEDICAL CAUSE OF DEATH PURSUANT TO SECTION 67(1)(b) OF THE ACT
On 28 March 2017, Dr Sarah Parsons, a Forensic Pathologist practising at the Victorian Institute of Forensic Medicine, conducted an examination and provided a written report, dated 8 June 2017. In that report, Dr Parsons concluded that a reasonable cause of death was “Gunshot wound to the head”.
Post-mortem toxicological analysis was negative for alcohol and all common illicit and prescription drugs.
The evidence in the Coronial brief irrefutably supports a finding that Daniel’s gunshot wound was self-inflicted. Accordingly, the focus of the inquest was on the actions of police officers during the police operation in which they attempted, ultimately unsuccessfully, to negotiate with and convince Daniel to surrender. More particularly, the focus of the Inquest was the decision by police to withdraw the CIRT negotiators from the back yard and cease face-toface negotiations with Daniel just after midday. This involved a detailed examination of whether the risks posed by Daniel to himself and others justified that decision and whether that decision resulted in a lost opportunity for a peaceful resolution of the siege.
None of the statements in the Coronial Brief had revealed why A/Sgt Probert directed the negotiators to withdraw from their positions just after Daniel had indicated he was thinking about surrendering to police at midday. This was a significant evidentiary gap which required the examination of police witnesses at the hearing. The examination required detailed questions about what information was known to the witnesses at critical points in time on the day of the siege. The witnesses had to rely on their memories and they were not aided by the passage of time. I make no criticism of the witnesses in this regard but remark that the Inquest would have been greatly assisted had more detailed contemporaneous statements been taken just after the siege.
The overall police strategy was not in contention during the inquest. It was generally agreed that forced entry to the house was not a viable option for a safe arrest. Such a strategy would have been more likely to end in a confrontation in which Daniel and possibly police would be injured or killed. Hence the most appropriate strategy was for police to convince Daniel to surrender peaceably.
There were no factual gaps or evidentiary disputes about the circumstances of the aggravated burglary the evening prior to Daniel’s death or the events and tactics employed by police later in the afternoon following the withdrawal of the negotiators from the back door just after midday. By the late afternoon on the day of the incident it was increasingly clear that Daniel was not going to surrender to police and it was not a realistic option for police to leave him in the house in the context of the aggravated burglary the prior evening and the likely presence of a firearm. Hence, the successive deployment of more forceful tactical options became necessary as it was clear that Daniel was not going to come out.
At Inquest, a number of police officers were called to give evidence about the period of time after police arrived on the scene at Kookaburra Avenue and the decision to withdraw the CIRT negotiators just after midday. Those officers were: ꞏ Acting Sergeant Patrick Brady; ꞏ Senior Constable Sean Kilsby; ꞏ Senior Constable George Tsinaris; ꞏ Leading Senor Constable David Atchison; ꞏ Leading Senior Constable Shane Engelsman; ꞏ Acting Sergeant Peta Probert; ꞏ Senior Sergeant Dean Allen; ꞏ Senior Sergeant Andrew Foot.
Counsel Assisting, Ms Ellyard submitted that the decision to withdraw negotiators from their positions at the back door resulted in a lost opportunity for face-to-face discussions to continue between Daniel and police, severing a key line of communication that was never reestablished in the afternoon. As a result, as the hours passed, police had to establish more extreme measures to convince Daniel to come out because they had lost access to the earlier channel of direct, face-to-face communications.
Ms Ellyard acknowledged that police safety is paramount and critical in a police operation such as an arrest with the potential presence of a firearm. However, in Ms Ellyard’s submission, the risk that Daniel could reasonably have been assessed as posing was to himself and not to police.
Ms Ellyard accepted that A/Sgt Probert properly needed to assess the risk that Daniel may have suddenly burst out of the back door with a gun in a way that forced a confrontation with police or suddenly changed his behaviour but said that on the evidence, these weren’t realistic possibilities that weighed against the benefit of negotiations continuing.50
Ms Ellyard submitted that at around about midday that information was available to A/Sgt Probert about the benefits of keeping the negotiators in position in the circumstances which outweighed what might have been the usual CIRT approach of setting up a cordon and call further back. The effect of A/Sgt Probert’s decision was effectively that police had to “start from scratch” and that the hour and a half that they spent seeking to start building a rapport with Daniel was lost, and with it the opportunity to persuade him to leave.
Ms Ellyard did not suggest that there was any guarantee that further face-to-face discussions would have been successful as the evidence was that negotiations were at an early stage and proceeding very slowly. But Daniel was alive for at least another six hours after the negotiators left, and in Ms Ellyard’s submission, A/Sgt Probert’s decision resulted in the loss of an opportunity to persuade Daniel to come out of the house. Because of that there was the loss of an opportunity to help Daniel avoid the terrible decision that he made to kill himself.
Mr Gipp submitted that any suggestion that had face-to-face negotiations continued then Daniel may have surrendered could only be considered as “pure speculation at best”. The evidence in the inquest clearly indicated that Daniel was unwilling to negotiate with police and/or peacefully surrender.
Ms Ellyard did not contend there was a causal connection between A/Sgt Probert’s decision to withdraw the negotiators and Daniel’s decision to end his life. Ms Ellyard described Daniel as being on a ‘trajectory’ in that he had told Ms A during the burglary that he intended to use the gun on himself and then told SC Tsinaris during the morning that he had nothing to live for. The police were trying to interrupt that trajectory and bring him safely into custody. But according to Ms Ellyard, the time spent by police in the morning trying to speak with Daniel did “bear some fruit”51 and the decision to remove them was a lost opportunity lost to pursue that avenue and potentially achieve the outcome everyone wanted, which was a safe surrender.
There was evidence at inquest that some of the negotiators had thought that the negotiations had ‘borne fruit’. LSC Engelsman told A/Sgt Probert just after her arrival that “they’re slowly chipping away at him, they’re making somewhat – some sort of progress. He’s just taking a minute to think about the surrender plan and his options from there.”52
LSC Atchison also thought the negotiations had borne fruit. At 12.41, after the negotiators had been withdrawn he told S/Sgt Allen over the CIRT radio channel that, “He was definitely….he was gunna come out.”53 At inquest, LSC Atchison reflected that Daniel understood the surrender plan and believed he was going to come out. He thought Daniel was aware of the plan, needed time to think but knew it was the safest way out.
Mr Gipp submitted that despite a view being held by one or more of the negotiators that they may have been making some progress with negotiations, at no stage could it be said that negotiators had built a rapport with Daniel to conclude that face-to-face negotiations had some prospect of success. Negotiations continued for a further seven hours and did not cease at any time during this siege but continued for the next seven hours with Daniel given every opportunity to negotiate with police if he so wished. Indeed, he did converse with police at various times during that afternoon, effectively swearing at police and telling them to move away on more than one occasion.
52 CIRT TAC Channel, CB 887.
53 CIRT TAC Channel, CB 899.
I accept that some of the officers may have thought that the negotiations had progressed to the point that Daniel was considering a surrender at around midday. However, just after this, his actions indicated that he was not going to come out. He left the kitchen and went to the lounge area to consider his options but at this location face-to-face negotiations could not occur and it was no longer possible so see if he had a weapon nearby. Further time passed and SC Tsinaris continued to try to convince him to surrender, albeit via the LRAD. It is not possible to say that if SC Tsinaris had stayed at the backdoor that Daniel would have restarted discussions with him, either from the lounge or from his original position in the kitchen.
During the Inquest, each of the witnesses were asked about their respective perceptions of Daniel’s demeanour and the extent to which they personally felt at risk during the siege. The purpose of these questions was to examine whether the risk Daniel posed to police justified the cessation of face-to-face communication. Each of the witnesses gave evidence that while communicating with Daniel they were always conscious of the potential for Daniel to pose a risk to their safety, particularly in light of the possible presence of a firearm.
Ms Ellyard submitted that from around 10.35 am when police arrived at Kookaburra Avenue, Daniel was distressed and sometimes he was crying, but he was willing to listen and sometimes to speak to police who were in the vicinity of the back door. During that time, he was not observed to have a gun or any other weapon in his hand. He was not heard to make any threats whether against himself or anybody else. He wasn't aggressive. The observations of the police attending were that he was obviously on his own in the house and displaying strong feelings of hopelessness. None of the witnesses felt personally threatened by Daniel.
Ms Ellyard further submitted that during the aggravated burglary the previous evening Daniel threatened himself, not anybody else. In those circumstances there ought to have been a way for this incident to have been resolved without the more extreme policing measures which were employed later in the day. This may have avoided Daniel's terrible decision later that day to take his own life.
Mr Gipp submitted that during negotiations at the Kookaburra Ave address posed a considerable threat to police and himself which needed to be mitigated. Whilst Daniel did not directly threaten police and police could see he did not have a handgun, Daniel’s past history indicated that he posed a significant threat to himself and the police such that extreme caution needed to be exercised in dealing with him. Further, the face-to-face negotiations which had been ongoing for 90 minutes had not resulted in Daniel peacefully surrendering himself, nor had Lynette Ashley been able to convince Daniel to come out of the house. Mr Gipp considered it was “noteworthy” that prior to the negotiators being withdrawn from the backyard Daniel had disengaged by moving into the living area and refused to engage with police again.
The evidence showed that some officers were operating on the basis that Daniel had made a specific threat to kill himself if police entered the house. S/Sgt Allen recalled being told by Sgt Peck that Daniel had threatened to kill himself if police entered the house. S/Sgt Allen recorded this in his notes. During the morning, this information was conveyed to various officers, including to A/Sgt Probert. However, Sgt Peck had never attended the scene. His only sources of information were updates he received either over the radio or from LSC Engelsman and others. LSC Engelsman heard no such remark by Daniel.
It became clear during Inquest that there was no evidence that Daniel ever made such a threat.
The three witnesses who spoke with Daniel did not hear such a threat and did not pass it on.
There's no reference to any such comment on the CIRT TAC Channel, which was a partial contemporaneous record of communications between police officers during the day.
However, police were operating on the basis that such a threat had been made and it is not surprisingly the perception that the threat had been was regarded as relevant to the assessments of police members of the potential risks that Daniel may have posed. On the evidence, the collective belief was made on erroneous information of unknown source and I find that Daniel never made a comment of the nature that he would self-harm were police to forcibly enter the premises.
However, the threat of self-harm and the individual risk assessments undertaken by each of the negotiators about Daniel were not the only factors taken into consideration by A/Sgt Probert, who had responsibility for managing the scene from the time of her arrival. A/Sgt Probert considered there was a high probability of the presence of a firearm because of the incident the previous evening. The likely presence of the firearm drove her decision to implement a “cordon and call” strategy, primarily to ensure that police had cover and concealment in the event that the situation became volatile or confrontational. A/Sgt Probert’s evidence was that as the team leader with responsibility for the safety of her officers, she was responsible for ensuring the safety of everyone involved if Daniel produced a firearm during the siege, notwithstanding that individual members may have assessed their own individual risk differently.
According to A/Sgt Probert, the likelihood of the presence of a firearm meant it was not safe for police members to negotiate with Daniel from near the back door, as there would not have been sufficient time and space for them to move if Daniel produced a firearm.54 A/Sgt Probert stated that, in her experience siege situations involving people with significant mental health issues can turn volatile quickly and can be exacerbated by presence of police in the ‘safe space’ of the person of interest. If the situation had become volatile and Daniel had produced a firearm, the police would be forced to produce their own, and the likelihood of someone being injured or killed would be high. A/Sgt Probert wanted to avoid such a situation.
One of issues explored at inquest was why A/Sgt Probert considered the withdrawal was necessary at midday when the initially CIRT negotiators had considered it to be safe to commence negotiations earlier and continue them until A/Sgt Probert’s arrival.
Both A/Sgt Probert and S/Sgt Allen both gave evidence explaining that had CIRT been deployed after Daniel had been located, which is the usual means of CIRT deployment, under no circumstances would negotiators be directed by the team leader or Tactical Commander to approach the premises and engage in face-to-face negotiations.55 CIRT procedure would require the inner cordon to be located outside of the premises where all officers have adequate cover and concealment in the event of a confrontation.
In this case, CIRT’s role in Daniel’s arrest began “organically”. Initially A/Sgt Brady, as the divisional patrol officer, had overall responsibility for locating and arresting Daniel. A/Sgt Brady sought the assistance of CIRT officers to undertake the arrest due to the heightened risk posed by the offender potentially being armed. After discussions with Sgt Peck, CIRT officers accompanied A/Sgt Brady to Kookaburra Avenue to assist to locate Daniel and bring him into safe custody. At this time however it was not an officially authorised CIRT deployment.
Of the CIRT officers at the site, LSC Engelsman was the most senior until A/Sgt Probert arrived at around midday and upon his arrival at the scene, he commenced to allocate positions to members and update Sgt Peck of the situation. LSC Engelsman stated that he knew it was going to turn into a full CIRT deployment so he started coordinating members to “kit up in their full CIRT deployment equipment”56 and take positions. By 10.35 am, Daniel was located in the house and by around 11.00 am, LSC Engelsman had asked SC Tsinaris and SC Atchison to commence negotiations. These negotiations continued until midday when A/Sgt Probert arrived and assumed responsibilities as the CIRT team leader. A/Sgt Probert’s decision was endorsed by S/Sgt Allen, the Tactical Commander, who had earlier discussed with her the need to develop an emergency action plan, the need for cover and concealment and an attempted resolution by cordon and call.
Mr Gipp submitted that in most CIRT operations, once Daniel had been located inside, the principle of “safety first” would require the officers at the back of the house to be withdrawn.
It follows that the negotiators should not have been communicating with Daniel from their positions at the back door once they had located Daniel inside. They did not have cover and concealment and had Daniel produced a weapon, they would not have been able to move away in time to avoid a confrontation.
56 Engelsman, CB 195.
Mark Thomas was concerned that the social media may have been read by Daniel and contributed to his decision to end his life.
Just prior to the Inquest, at my request, Victoria Police provided a copy of its press release made just after the incident. I have confirmed that Victoria Police did not post any social media during or after the incident. The social media pages provided by Mark Thomas were made by unknown social media users and were not posted until after Daniel’s death. I acknowledge the additional pain and hurt these posts would have caused to Daniel’s family.
I also received a submission from Daniel’s mother, Julie Thomas setting out the impact that Daniel’s death has had on her. I acknowledge that Daniel’s estrangement from his family and the tragic circumstances of his death has been a painful and, at times, traumatising process for his family. Further, sitting through an Inquest and listening to evidence about the day of his death would no doubt have compounded their distress.
I extend my sincere and respectful condolences to Daniel’s family and friends for the loss they have sustained. As parents, there can be no greater loss than the loss of a child. I hope that Daniel’s family and friends will be reassured that this Court has conducted a thorough and independent investigation to address their concerns.
Unfortunately, he did not accept medical assistance and his drug use and estrangement from friends and family exacerbated his mental health crisis.
Having investigated the death, and held an inquest, I find pursuant to section 67(1) of the Act that Daniel Neil Thomas, born 17 July 1981, died on 26 March 2017 at Kookaburra Avenue, Werribee, Victoria, from a gunshot wound to the head in the circumstances described above.
Having applied the applicable standard to the relevant evidence, I make the following findings: a. The police had a clear strategy aimed at convincing Daniel to surrender to police without a confrontation. It became increasingly clear after midday that Daniel was not going to surrender so more advanced tactical options were needed to resolve the siege.
b. Senior police officers, including A/Sgt Probert were obliged to take a “safety first” approach, to ensure that attending police officers were not in positions which compromised their safety.
c. A/Sgt Probert’s decision to withdraw the members was reasonable and in accordance with Victoria Police policies and procedures to ensure the safety of the officers under her leadership, especially in circumstances it was likely that Daniel had a firearm.
d. The decision to withdraw officers from the back door was a lost opportunity to try to re-establish face-to-face negotiations with Daniel but it was reasonable for A/Sgt Probert to conclude that the risks outweighed any benefits of trying to resume the communication from the positions at the rear door. Further, even if discussions had resumed from the original positions near the rear door, I am unable to conclude that it would have changed the tragic outcome.
I direct that a copy of this finding be provided to the following: Ms Julie Thomas, Senior Next of Kin Mr Mark Thomas, Senior Next of Kin Chief Commissioner of Police, Mr Shane Patton APM [c/- VGSO] Mr Peter Kelly, North Western Mental Health Dr Neil Coventry, Office of the Chief Psychiatrist Mr Simon Cooke, Mercy Health Mrs Jan Moffatt, DTCH Lawyers Detective Sergeant Rodney Stormonth, Victoria Police, Coroner’s Investigator.
Signature: ______________________________________
KATHERINE LORENZ CORONER Date: 25 November 2021
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