Deceased
Yacub Khayre
Demographics
29y, male
Coroner
Coroner Audrey Jamieson
Date of death
2017-06-05
Finding date
2023-07-20
Cause of death
Multiple gunshot wounds
AI-generated summary
Yacub Khayre died from multiple gunshot wounds on 5 June 2017 after he shot and killed receptionist Kai Hao during a hostage incident at an apartment complex in Brighton, Victoria, then opened fire on Victoria Police who returned fire fatally. The coroner investigated whether Khayre's parole management and supervision were adequate. Key findings: Khayre was released on parole in December 2016 after assessment by Corrections Victoria and the Adult Parole Board. While on parole, he was subject to electronic monitoring, drug testing, CISP mentoring, and parole officer supervision. Victoria Police assessed him as low risk based on available information using risk assessment tools. Critical information about his extremist material access and illegal firearm acquisition only became known after his death. The coroner found that parole decision-making, supervision, and monitoring were adequate based on available evidence at the time, though material risks of radicalisation were not fully documented to the parole board. The police response was reasonable and the death was not preventable.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Rule 63(1)
IN THE CORONERS COURT OF VICTORIA AT MELBOURNE Court Reference: COR 2017 2643 Related matter: COR 2017 2644
FINDING INTO DEATH WITH INQUEST Form 37 Rule 63(1) Section 67 of the Coroners Act 2008 Inquest into the death of: YACUB KHAYRE Findings of: AUDREY JAMIESON, CORONER Delivered On: 20 July 2023 Delivered At: Coroners Court of Victoria, 65 Kavanagh Street, Southbank 3006.
Hearing Dates: 15, 16, 17 and 19 March 2021 Appearances: Ms Fiona Crock of Counsel, instructed by Shine Lawyers on behalf of the family of Kai Hao.
No representative appeared on behalf of the _______________________________________________________________________ 1 of 42
family of Yacub Khayre (no application to appear as an interested party).
Mr Liam Brown of counsel with Ms Sarala Fitzgerald, instructed by the Victorian Government Solicitor’s Office (VGSO), on behalf of the Department of Justice and Community Safety and the Adult Parole Board.
Mr Paul Lawrie of counsel, instructed by VGSO, on behalf of the Chief Commissioner of Police.
Ms Marion Isobel of counsel, instructed by Russell Kennedy Lawyers, on behalf of the Community Integration Support Program (CISP) employees.
Lennon Lawyers on behalf of the hostage.
Counsel Assisting the Coroner: Ms Rachel Ellyard of Counsel, instructed by Mr Lindsay Spence, Principal In-House Solicitor, Coroners Court of Victoria.
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TABLE OF CONTENTS Monitoring Mr Khayre’s conduct in the months leading to the Brighton Siege incident 38 _______________________________________________________________________ 3 of 42
I, AUDREY JAMIESON, Coroner having investigated the death of YACUB KHAYRE AND having held an Inquest in relation to this death on 15-17 and 19 March 2021, at Melbourne find that the identity of the deceased was YACUB KHAYRE, born on 15 October 1987, and who died on 5 June 2017 at Buckingham International Serviced Apartments, 406 Bay Street, Brighton 3186 from: 1 (a) MULTIPLE GUNSHOT WOUNDS In the following summary of circumstances: On 5 June 2017, Kai Hao was in the reception area of the Buckingham International Serviced Apartments (BISA) where he was employed as a receptionist. At approximately 4.10 pm, Yacub Khayre entered the BISA reception area and shot Kai Hao twice with a shotgun, killing him instantly.
Before he had shot and killed Mr Hao, Mr Khayre took a woman, who he had ‘booked as an escort’, hostage in Apartment 11 at the BISA. At approximately 4 pm, Mr Khayre bound and blindfolded the woman (the hostage).1 However, after she managed to free herself, at approximately 4.10 pm, she alerted Victoria Police who deployed their specialist units including the Critical Incident Response Unit (CIRU) and the Special Operations Group (SOG). At approximately 6.02 pm, Mr Khayre emerged from the apartment, discharging his firearm twice. The SOG then returned fire and during the exchange of gunfire between Mr Khayre and the SOG members, Mr Khayre was fatally wounded and died at the scene.
The events that unfolded at BISA on 5 June 2017 became known as the “Brighton Siege” incident.
1 Court File [CF]. On 7 June 2017, the State Coroner, mero motu, granted a Proceeding Suppression Order, pursuant to sections 18(2) and 19 of the Open Courts Act 2013, suppressing the identity of the female person who was taken hostage by Yacub Khayre on 5 June 2017 at the BISA.
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Born in Mogadishu, Somalia, in 1987, Yacub Khayre immigrated to Australia in 1993 with his grandparents and his brother. When they arrived in Melbourne, Mr Khayre and his brother settled in Gladstone Park with their grandparents.
In 1998, Mr Khayre’s parents and his other siblings immigrated to Australia to join the rest of the family, temporarily moving into the Gladstone Park home which Mr Khayre shared with his brother and grandparents. However, when his parents and siblings moved to their own home in Broadmeadows shortly after arriving in Melbourne, Mr Khayre stayed with his grandparents in their Gladstone Park home. In 2004, Mr Khayre’s grandfather passed away.
The evidence indicates that Mr Khayre was significantly impacted by his grandfather’s passing, after which time he started to drift from his family, exhibiting the hallmarks of delinquent behaviour.
Forensic history
In 2005, Mr Khayre’s behaviour drew the attention of Victoria Police and by 2006 his behaviour led to him being held in a youth detention centre. Over the course of the next few years, Mr Khayre’s offending escalated to the extent that it culminated in his conviction on a number of offences.2
During 2009, Mr Khayre was implicated in terrorist activity in Melbourne, suspected to have been financed by the Al-Shabaab terrorist group based in East Africa. As a result 2 Coronial Brief of Evidence [CB], Statement of Jennifer Hosking, according to whom, during this time Mr Khayre was convicted of the following: i. Drug related offences; ii. Theft; iii. Handling stolen goods; iv. Burglary; v. Arson; vi. Aggravated burglary; vii. Recklessly causing injury; viii. Intentionally causing injury; ix. Being a prohibited person in possession of a firearm; and x. Possessing ammunition without a licence.
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of Victoria Police’s investigation into the allegations of terrorism, it was identified that Mr Khayre was implicated in a plot to launch an attack on the Holsworthy Army Barracks in New South Wales (NSW) which led to his arrest on 4 August 2009.
Although he was charged with related offences together with a number of co-accused in the matter, Mr Khayre himself was acquitted on all counts on 23 December 2010.
The evidence indicates that Mr Khayre’s offending continued to escalate over the next few years and, as a result, on 3 May 2012 he was sentenced to imprisonment on numerous counts.
On 14 December 2016 Mr Khayre was released on parole, fitted with an electronic monitoring device (EMD) or ankle bracelet which was to ensure that Mr Khayre complied with the curfew imposed as part of his parole conditions.
Corrections Victoria (CV) was tasked to manage Mr Khayre while he was on parole.
His management program included enrolling Mr Khayre in the Community Integration Support Program (CISP) which offered a range of services and associated programs to support the reintegration of offenders into the community, upon their release from prison.3 At that time, the CISP was specifically aimed at providing support to individuals with needs associated with radical and violent extremism and to assist those individuals with reintegration strategies as they transitioned from life in prison after their prison term had expired. Ultimately, the CISP sought to rehabilitate offenders with the aim to alleviate the associated dangers of radical extremism.
3 CB, page 2821: Justice Assurance and Review Office (JARO), Review into the management of Mr Yacub Khayre (PID 820959825) by Corrections Victoria. Corrections Victoria referred Mr Khayre to the CISP program in 2013. Mr Khayre’s engagement in the CISP commenced in April 2014 and was still engaged in the program until the date of his death.
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Circumstances proximate to the death
It appears that Mr Khayre, monitored by the EMD, was mindful not to breach his curfew conditions or to draw attention to his whereabouts.
At approximately 4 pm on 5 June 2017, a woman arrived at the BISA by taxi. The evidence indicates that the woman was commissioned by an escort service which Mr Khayre had booked. As soon as the woman entered Apartment 11, Mr Khayre threatened her, binding her with cable ties. When the woman noticed that Mr Khayre had a firearm in his possession, he discharged the firearm once. According to the woman, the bullet struck the floor of the apartment.4
At approximately 4.10 pm, Mr Khayre left Apartment 11 and made his way to the reception area of the BISA where he shot Mr Hao in his chest and abdomen, causing fatal injuries. During this time, the woman who Mr Khayre had bound, managed to free herself from the cable ties which Mr Khayre had used to bind her and alerted the police.
After he had shot Mr Hao, Mr Khayre returned to Apartment 11 where he intercepted the call made by his hostage. According to the emergency services call-taker, the person who took the phone from the woman advised that he had killed the receptionist and planted a bomb in the building. The evidence indicates that this person was Mr Khayre. That call was then ended.
At approximately 4.20 pm Victoria Police arrived at the BISA. The first police officers to arrive at the scene were general duties uniformed members who cordoned off the area and requested back-up from Victoria Police specialist units, namely the Critical Incident Response Team (CIRT) and the Special Operations Group (SOG).
4 CB, statement of the hostage, page 330.
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At approximately 4.44 pm, Mr Khayre called emergency services, reiterating that he had planted a bomb and confirming that he had taken a woman hostage at the BISA.
At approximately 5.41 pm, Mr Khayre made another call. This time, the call was made to the Channel 7 television studios. Mr Khayre is reported to have uttered the following words: “This is the Brighton hostage. This is for IS, this is for Al-Qaeda”.5
At approximately 6.02 pm, Mr Khayre ran out of Apartment 11 and confronted Victoria Police, discharging his firearm twice. When Victoria Police SOG members returned fire, Mr Khayre was fatally wounded.
The Coroners Court of Victoria is an inquisitorial jurisdiction.6 The purpose of a coronial investigation is to independently investigate a reportable death to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which death occurred.7 The cause of death refers to the medical cause of death, incorporating where possible the mode or mechanism of death. For coronial purposes, the circumstances in which death occurred refers to the context or background and surrounding circumstances but is confined to those circumstances sufficiently proximate and causally relevant to the death and not merely all circumstances which might form part of a narrative culminating in death. 8
The broader purpose of coronial investigations is to contribute to the reduction of the number of preventable deaths through the findings of the investigation and the making of recommendations by Coroners, generally referred to as the ‘prevention’ role.9 5 The references were clearly to well-known Islamic dissident groups, Islamic State (IS) and Al-Qaeda.
i. IS is abbreviated form of the Islamic State of Iraq and Syria (ISIS) and also known as Islamic State of Iraq and the Levant (ISIL).
ii. Officially known as Qaedat al-Jihad, Wikipedia describes Al Qaeda as ‘a multinational militant Sunni Islamic extremist network.
6 Section 89(4) Coroners Act 2008.
7 Section 67(1) of the Coroners Act 2008.
8 See for example Harmsworth v The State Coroner [1989] VR 989; Clancy v West (Unreported 17/08/1994, Supreme Court of Victoria, Harper J).
9 The "prevention" role is explicitly articulated in the Preamble and Purposes of the Act.
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Coroners are also empowered to report to the Attorney-General on a death; 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 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.10 These are effectively the vehicles by which the prevention role may be advanced.11
It is not the Coroner's role to determine criminal or civil liability arising from the death under investigation. Nor is it the Coroner’s role to determine disciplinary matters.
Section 52(2) of the Act provides that it is mandatory for a Coroner to hold an Inquest into a death if the death or cause of death occurred in Victoria and a Coroner suspects the death was as a result of homicide, or the deceased was, immediately before death, a person placed in custody or care, or the identity of the deceased is unknown.
The circumstances of Mr Khayre’s death make this a mandatory Inquest under section 52(2) of the Act. Mr Khayre was fatally wounded when Victoria Police attempted to take him into custody.12
• the nature and consequence of the facts to be proved; 10 See sections 72(1), 67(3) and 72(2) of the Act regarding reports, comments and recommendations respectively.
11 See also sections 73(1) and 72(5) of the Act which requires publication of Coronial Findings, comments and recommendations and responses respectively; section 72(3) and (4) which oblige the recipient of a Coronial recommendation to respond within three months, specifying a statement of action which has or will be taken in relation to the recommendation.
12 Read with section 3(1) of the Coroners Act 2008 (Vic).
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• the seriousness of any allegations made;
• the inherent unlikelihood of the occurrence alleged;
• the gravity of the consequences flowing from an adverse finding; and
• if the allegation involves conduct of a criminal nature, weight must be given to the presumption of innocence, and the court should not be satisfied by inexact proofs, indefinite testimony or indirect inferences.
The State Coroner, Judge Hinchey (as she then was), had carriage of the coronial investigation into the deaths of Yacub Khayre and Kai Hao at the inception.
An investigation of the Brighton Siege incident was immediately commenced by Victoria Police Homicide Squad. Detective Senior Sergeant (DSS) Mark Colbert was appointed as the Coroner’s Investigator (CI).
On 9 August 2017, Judge Hinchey directed the CI to compile a full Coronial Brief of Evidence (CB).
Sources of Evidence
This Finding draws on the totality of the evidential material produced during the investigation into Mr Khayre’s death. That is, the Court records maintained during the coronial investigation, the Coronial Brief of Evidence and all other material sought and obtained by the Court prior to the Inquest, the evidence adduced at the Inquest and all submissions made by the interested parties.
In writing this Finding, I do not propose to summarise all the evidence but will endeavour to refer to the evidence yielded by the coronial investigation, only in such detail as would appear to be warranted by its forensic significance and in the interests _______________________________________________________________________ 10 of 42
of narrative clarity. The absence of a reference to any aspect of the evidence, does not imply that I have not considered that evidence.
Identity
On 7 June 2017, Dr Jeremy Graham of Identification Services at the Victorian Institute of Forensic Medicine (VIFM) conducted a comparative analysis of the fingerprints from the body received into their care at the VIFM with fingerprints which Victoria Police held on file for Yacub Khayre. Dr Graham compiled an Identification Report in which he opined that the fingerprints from the body received into their care at the VIFM matched the fingerprints ‘held on record under the name of Yacub Khayre’.14
On 7 June 2017, by Form 8, Coroner McNamara determined the identity of the deceased to be Yacub Khayre, born on 15 October 1987.15
I have reviewed the evidence in this regard, and I am satisfied that Yacub Khayre’s identity has been established.
Medical Cause of Death
On 6 June 2017, Forensic Pathologist, Dr Sarah Parsons of the VIFM conducted an autopsy upon the body of Yacub Khayre.
Prior to the autopsy, Dr Parsons considered the Police Report of Death, Form 83 and the Coroner’s Direction Regarding Autopsy, Form 9.16 14 Court File, VIFM Identification Report dated 7 June 2017.
15 Court File, Form 8 Rule 32, Determination by Coroner of Identity of Deceased.
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Post-mortem examination
At autopsy, Dr Parsons noted various injuries to the thorax and abdomen, the back and the lower and upper limbs which Dr Parsons described as ‘approximately 31 penetrating wounds in keeping with gunshot entry and exit wounds’. During the postmortem examination, Dr Parsons retrieved 15 bullets from the body.17 Toxicology
The toxicological examination of the post-mortem samples did not identify the presence of any alcohol or common drugs or poisons.18 Forensic pathology opinion
On 26 October 2017, Dr Parsons provided a written report of her findings and opined that the medical cause of death was 1(a) Multiple Gunshot Wounds.
Directions Hearing19
On 22 August 2017, Judge Hinchey convened a Directions Hearing into the deaths of Mr Khayre and Mr Hao. Pursuant to Practice Direction 1 of 2012, titled ‘Opening Inquests into Police Contact Deaths’, an Inquest is mandated in the circumstances in which Mr Khayre’s death occurred. For the sake of expediency, the Directions Hearing included the coronial investigation into Mr Hao’s death by homicide.
At this Directions Hearing, Ms S Thomas appeared to assist the coroner, Dr I Freckleton appeared on behalf of Corrections Victoria (CV) and the Adult Parole Board (APB) and Mr B Ihle appeared on behalf of the Chief Commissioner of Police.
The interested parties agreed to the timeline proposed for the delivery of the CB and the additional statements from Victoria Police after their review of the incident, to consider 16 Court File [CF], Form 9 dated 6 June 2017. Pursuant to section 27 of the Coroners Act 2008, Detective Senior Sergeant Pixie Fuhrmeister of Victoria Police Homicide Squad requested a Direction for autopsy on 5 June 2017.
17 CB, Medical Examiner’s Report (MER) of Dr Sarah Parsons, dated 26 October 2017.
18 Toxicology Report of VIFM Senior Toxicologist, Maria Pricone, dated 4 August 2017.
19 Transcript of Proceedings dated 22 August 2017, pages 1-8.
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compliance with Victoria Police policies and procedures. The interested parties agreed further to obtaining information from the APB with regard to the circumstances under which Mr Khayre was released on parole in December 2016 and a statement from CV setting out how they had managed Mr Khayre between December 2016 and 5 June 2017 while he was in the community, on parole.
Conduct of my Investigation
Cognisant that I was already in a position to discharge my duties pursuant to section 67 of the Act, I focused my investigation on my prevention role as a coroner. The Preamble to the Act specifically enjoins an investigating coroner to contribute to the reduction of the number of preventable deaths and to promote public health and safety and the administration of justice.
The circumstances in which Mr Khayre died raised immediate concern. Mr Khayre was shot and killed by police officers who were trying to apprehend him after he had taken a hostage, shot and killed Mr Hao and after he had threatened that he had planted a bomb which, as the evidence indicates, he threatened to detonate. It was therefore incumbent upon me as an investigating coroner, to consider whether the conduct of Victoria Police was reasonable in the circumstances and further, whether Mr Khayre’s death could have been prevented.
Preliminary Homicide Squad Investigations
The investigation and the preparation of the CB in preparation for Inquest was undertaken by DSS Colbert who remained the CI and who completed the investigation and compiled the CB on my behalf.
The CB contained the statements of the SOG and CIRT officers and Victoria Police Airwing footage of the Brighton Siege incident. To determine whether the conduct of those officers was reasonable in the context of the circumstances which led to Mr _______________________________________________________________________ 13 of 42
Khayre’s death, I considered the evidence of the SOG and CIRT officers in conjunction with the evidence contained in the Victoria Police Airwing footage.
According to Operator 158, shortly after the first responders arrived at the scene and cordoned off the area, SOG and CIRT officers arrived, taking up strategic positions to defuse the situation.20 The evidence indicates that, in accordance with their devised strategy, Operator 158 worked as a team with Operators 35, 117, 124, 131, and 143.
Operator 158 stated further that ‘after a couple of minutes’, while he was assisting Operator 117 to ‘get a better view’ of Apartment 11, he ‘heard yelling’ and then saw ‘someone appear from Apartment 11 (. . .) running towards’ them who he observed to be wearing ‘a big puffy jacket’.21
Taking some time to establish who this person was, whether it was the hostage or someone from a neighbouring apartment, Operator 158 and his colleagues noticed that the person who had emerged from Apartment 11 ‘had a shotgun at his hip’. While still in the process of observing the shotgun which Operator 158 described as a ‘sawn off side by side shotgun’, he saw a ‘flash come from the barrel as [the person] fired, ‘still running towards’ them. When the SOG Operators returned fire, the person continued to run towards them, firing a second shot in their direction before ‘falling to the ground (. .
.) two or three metres’ away from him. Three Operators, two of whom required urgent surgery, were seriously wounded in the crossfire which lasted about ‘5 or so seconds’.22
21 CB, statement of Operator 158, page 214 et seq.
22 Ibid.
23 CB, statement of DSS John Greene of Victoria Police Professional Standards Command (PSC) and Final Report of Detective Inspector Roger Schranz of the PSC dated 27 October 2017, page 656. Amidst media speculation, allegations emerged that the shotgun in question was linked other criminal activity and has made its _______________________________________________________________________ 14 of 42
discovered the shotgun and ‘black satchel’ containing a further ‘nine shotgun cartridges and a pocket knife’. When investigators examined the inside of Apartment 11, they discovered a second firearm, ‘a 12 gauge Barton & Co double barrel shotgun which subsequent ballistics tests identified as the firearm which had been discharged inside Apartment 11, confirming the report by the hostage of a shot fired in the apartment.24
Further investigations by Victoria Police Bomb Response Unit (BRU) who attended the scene determined that there was no bomb at the BISA. Mr Khayre’s claim in this regard turned out to be a vacant, fictitious threat.25
I have reviewed the Victoria Police Airwing footage which depicts “the offender” emerging from the apartment moving in the direction of the Operators firing at them and having observed the Operators’ reaction in returning fire while “the offender” continued towards them, firing a second shot. Further, on the evidence that two Operators were seriously wounded in the crossfire by rounds fired from the firearm in “the offender’s” possession, I am satisfied that, by returning fire, the weight of the available evidence indicates that the conduct of the Operators was reasonable in the circumstances.
Consequently, the control and management of Mr Khayre upon his release from prison on parole became the focal point of my investigation into his death. Examining this aspect more closely, would enable me to consider whether there were any systemic deficiencies which could have contributed to the events that led to Mr Khayre’s death and, to the extent that I could identify any deficiencies, whether those deficiencies presented an opportunity lost to alter the outcome for Mr Khayre.
way back onto the black market after it was either confiscated or seized in a previous criminal investigation.
Subsequent PSC investigations, however, disproved the allegation.
24 CB, statement of DSS Mark Colbert, page 650 et seq.
25 Ibid.
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To expedite the Inquest proceedings, I convened further Directions Hearings after I took over the conduct of the coronial investigation from the former State Coroner.
Direction Hearing/s Second Directions Hearing
At this Directions Hearing, held on 19 July 2019, I was assisted by Ms R Ellyard. Mr L Brown appeared on behalf of the Secretary to the Department of Justice and Community Safety (DJCS) and the Adult Parole Board (APB) and Mr R Gipp appeared on behalf of the Chief Commissioner of Police (CCP).26
Ms Ellyard confirmed that Mr Hao’s family did not apply to join the proceedings as interested parties and further, that the CB would therefore only be made available to the interested parties present in Court as and when the CB was finalised.
In relation to the finalisation of the CB, Ms Ellyard brought to my attention that Mr Gipp on behalf of the CCP had filed an application, on the grounds of Public Interest Immunity (PII), for the CB to be redacted before it was circulated to the parties.
Acknowledging that I have received written submissions from the CCP in this regard, I invited Mr Gipp to address the Court on this point. The gravamen of the CCP’s PII Application lie in the methodology of SOG and CIRT Operations and the descriptions of their specialist equipment.
In further acknowledgement of the concerns raised by Mr Gipp, I resolved to make the redacted version of the CB available to the interested parties before considering any applications for interlocutory injunctions. In my view, even though neither Mr Khayre nor Mr Hao’s family sought to join the proceedings as interested parties, a copy of the CB is made available to families in the ordinary course.
26 DJCS encompassing CV and The Justice Assurance Review Office (JARO).
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Mr Gipp made a further request for a Pseudonym Order for those SOG and CIRT members involved in the Brighton Siege. Cognisant of the keen media interest in this matter and to provide an opportunity for the media to make submissions with regard to the CCP’s application, from the Bench, I canvassed with the representatives of the interested parties at the Bar Table whether such orders as sought by Mr Gipp may be premature, given that orders of this nature are properly considered at the time when that evidence is adduced. Consequently, it was resolved that Mr Gipp first examine the redacted CB, before launching his substantive applications in this regard.27 Third Directions Hearing
Held on 4 December 2019, the appearances for the interested parties were as per the previous Directions Hearing, with Mr P Lennon of Lennon Lawyers appearing for the hostage at this Directions Hearing.
Counsel Assisting, Ms Ellyard, confirmed that my CB was now adequately redacted to reflect the PII concerns raised by Mr Gipp for the CPP at the previous Directions Hearing, and that it was appropriate to release the CB to all the interested parties including the families of Mr Khayre and Mr Hao, if required, and to the hostage.
Following Mr Brown’s acknowledgement that the CB had been appropriately redacted for release to the interested parties, he pursued applications for suppression orders on behalf of his clients, CV and the APB, who had ‘broader’ concerns about some of the material in their evidence dealing with their systems, protocols and policies. Mr Brown was of the view that disseminating material of that nature would not be in the public interest and supported his application by submitting confidential affidavits of appropriately qualified employees of his clients.28 27 Transcript of Proceedings of 19 July 2019, page 5.
i. After Mr Gipp on behalf of the CPP had reviewed the redacted CB, he was invited to make submissions by 9 August 2019 with regard to the whether the CB was adequately redacted and aligned with his substantive PII Order and Pseudonym Order applications.
ii. Having reviewed the CPP’s submissions on this point, I granted the application-- PII Order dated 28 August 2019.
28 Transcript of Proceedings of 4 December 2019, page 3.
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Consequently, I resolved to grant Mr Brown’s application.
On behalf of the CPP, Mr Gipp revisited the two applications for suppression orders he brought to my attention previously. The first of these orders related to the evidence of potential witnesses at the Inquest—the two CISP witnesses and the Victoria Police SOG operatives. Mr Gipp specifically sought to redact that part of their evidence which related to their own review procedures and training practices, inter alia, before the media is invited to peruse his application and make submissions thereon.
The second application Mr Gipp addressed was the application for Pseudonym Orders for one CISP employee and the SOG operatives.
In replication, Ms Ellyard submitted that to avoid any duplication, I should consider making one order to incorporate the applications for suppression orders by Mr Gipp and Mr Brown at the appropriate time when the oral evidence of those witnesses is adduced.
After Mr Lennon, on behalf of the hostage, indicated that he would be representing his client during the Inquest and that his client wanted access to the CB, for public immunity reasons and on the understanding that I was open to consider further submissions particularly from the media, I resolved to release the latest version of the CB, appropriately redacted, to the interested parties under the protection of interim suppression orders as requested by Mr Gipp and Mr Brown.29 Scope of the Inquest
At the same Directions Hearing, I heard submissions on the Scope of the Inquest and the potential witnesses to be called to testify at the Inquest.
29 Court File, i. Interim Suppression Order granted in favour of the CCP dated 4 December 2019.
ii. Interim Suppression Order granted in favour of the DJCS dated 4 December 2019.
iii. Pusuant to section 11(1) of the Open Courts Act (OCA), a Court must take reasonable steps to ensure that media agencies are notified of applications for Suppression Orders.
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The parties agreed that the evidence contained in CB was sufficient to enable me to discharge my statutory obligations pursuant to section 67 of the Act. Accordingly, having satisfied myself that the conduct of the SOG members and CIRT members was reasonable in the circumstances, I determined that by examining how Mr Khayre’s parole was supervised, managed and monitored by the relevant government agencies, I would advance my investigation into his death.
Mr Lennon confirmed that his client will be participating in the Inquest and requested my indulgence to consult his client to consider whether he needed to make further submissions for my consideration on the Scope of the Inquest.
Consequently, subject to further submissions from Mr Lennon, I determined that the Scope of my Inquest would encompass the adequacy of the supervision, monitoring and management of Yacub Khayre by the various government agencies prior to the events of 5 June 2017, the day of the incident, while he was on parole.
Subsequent submissions by the CCP and DJCS
Following the granting of the Interim Suppression Orders, both Mr Gipp and Mr Brown filed further submissions on their applications which remained under my consideration at the time.30
In summary, Mr Gipp advanced further reasons to support his existing applications for:31 i. Suppression Orders relating to operational tactics and procedures adopted by Victoria Police; 30 Court File, i. On 22 April 2020, Mr Brown filed his written submissions on behalf of the DJCS.
ii. On 23 April 2020, Mr Gipp filed written submissions to supplement his original submissions dated 18 July 2019.
31 Court File, Form 46 Notice of Application for Suppression Order dated 21 March 2018. The Application was ventilated at the Directions Hearings in the intervening period, after which I granted Interim Orders and the CB was redacted at my Direction.
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ii. PII Orders relating to those parts of my Coronial Brief containing references to firearms and specialist equipment and training procedures for the Victoria Police SOG, their Technical Surveillance Unit (TSU) and details relating to their Joint Counter Terrorism Team (JCTT). in relation to Victoria Police; and iii. Pseudonym Orders for those SOG members who attended the Brighton Siege incident.
Similarly, Mr Brown’s written submissions advanced the submissions made in support of his application at the Directions Hearings.
In summary, Mr Brown sought Suppression Orders in relation to the following documents:32 i. JARO’s review dated 4 August 2017; ii. CV’s review dated 30 June 2017; iii. CV’s Electronic monitoring instruction dated January 2017; iv. Details relating to the risk assessment tools in use by CV; v. The identities of the CISP witnesses list in the Inquest Brief; vi. The identities of the Islamic religious leaders associated with the CISP program; and vii. The affidavit of CV’s Jennifer Hosking dated 23 March 2018;
Subsequently, pursuant to section 11(1) of the Open Courts Act 2013 (OCA), I brought the applications to the attention of the media, inviting their submissions for my consideration.
On 27 April 2020, I received submissions from The Age Company Pty Ltd (The Age) and the Australian Broadcasting Corporation (The ABC), responding to the applications 32 Court File, Form 46 Notice of Application for Suppression Order dated 23 March 2018.
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filed by Mr Gipp and Mr Brown. Having perused the media’s submissions, I made it available to the interested parties. Mr Gipp and Mr Brown filed submissions in replication on 4 May 2020 and 8 May 2020 respectively.
Having considered the submissions made by the respective interested parties, I granted the following orders: i. Pseudonym Order dated 18 February 2021 to protect the identities of all the officers involved the Brighton Siege including the SOG Operatives, Tactical Support Unit (TSU) Operatives and both Victoria Police and the Australian Federal Police (AFP) Counter-Terrorism Officers; ii. Public Interest Immunity Order dated 18 February 2021, granting the PII application filed by Mr Gipp on behalf of the CCP over a range of material in the Coronial Brief; and iii. Public Interest Immunity Order dated 18 February 2021, granting the PII application filed by Mr Brown on behalf of CV over a range of material in the Coronial Brief.
At this juncture, I determined that applications in respect of those witnesses who were to be called to give evidence at the Inquest would be properly considered when they are called to testify. Accordingly, my Rulings on the applications in respect of the CISP witnesses and the CV witnesses were reserved until the Inquest proceedings commenced.
Viva Voce Evidence at the Inquest
• Detective Inspector (DI) Ian Milner of Victoria Police;
• Witness F (CISP); _______________________________________________________________________ 21 of 42
• Another CISP witness whose name was suppressed;
• Mario Nuzzo of the Department of Justice;
• Anita Lis of the Adult Parole Board; and
• Jennifer Hosking of Corrections Victoria
At the commencement of the Inquest proceedings on 15 March 2021, in addition to the application for a Pseudonym Order for one of the CISP witnesses, of which I was aware, Ms Isobel filed a further application for an order for the witnesses to testify in a closed court, pursuant to section 33 of the OCA.33
On the same day, after affording the interested parties an opportunity to be heard on Ms Isobel’s application and after no objections were raised, I granted a Pseudonym Order to protect to identity of the one CISP employee to be referred to in the Inquest proceedings as Witness F and further, I granted the application for Witness F to testify in a closed court.34
34 Ibid, page 51 and Court File, Pseudonym Order dated 15 March 2021.
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plans coming to the attention of the government agencies who had contact with him during his parole period; and ii. To what extent were Mr Khayre’s views about terrorism known or able to have been known including the extent to which his actions may have been anticipated and prevented so as to avoid both his own death and the death of Mr Hao;
Mr Khayre’s behaviour for which Victoria Police engaged with him related to his extensive criminal activity and chronic drug addiction issues rather than terrorist extremism.
Victoria Police used two indicator tools to assess Mr Khayre’s level of extremist risk to the Victorian security environment—the SIU Security Prioritisation Tool (SPT) and the Australia-New Zealand Counter Terrorism Committee (ANZCTC) Person of Interest Security Prioritisation Tool— both of which indicated that Mr Khayre was ‘a low level risk to the Victorian security environment’.37 35 At time the matter was listed Inquest DI Milner had been elevated to the rank of Superintendent of Police i. Exhibit 1, Statement of DI Ian Milner; ii. Exhibit 2, Victoria Police Target Profile for Yacqub Khayre; iii. Exhibit 3, Intelligence Brief dated 6 June 2017; iv. Exhibit 4, Extract from Victoria Police Court Outcomes Report dated 6 June 2017; 36 The SIU operated as a subsidiary unit within Victoria Police’s Counter Terrorism Command (CTC).
37 Exhibit 1, Page 517 of the Inquest Brief.
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DI Milner testified further that the SPT assessment was subject to regular review, the last of which was conducted in May 2017 which yielded a positive result and confirming that Mr Khayre was ‘a low level risk’ at the time.38 Mr Khayre’s Target Profile, which was received into evidence as Exhibit 2, was not based on a concern by Victoria Police that he was likely to engage in conduct related to violent extremism. Victoria Police did, however, take into account Mr Khayre’s history of terrorist related activity when they assessed him even though he had been acquitted on criminal charges relating to terrorism in December 2010.39 DI Milner’s evidence also gave me insight into the complexities of the Victoria Police SPT and ANZCTC assessment tools which indicated that the length of time required to perform and complete these assessments was around two months. DI Milner identified and explained how the assessments led Victoria Police to conclude that Mr Khayre was ‘a low level risk’ of extremist behaviour.40 According to DI Milner, the ANZCTC tool is aimed at assisting Victoria Police to identify where they should focus their attention in assisting to rehabilitate offenders rather than identifying that particular offender’s potential to commit any specific offence. His evidence indicated further that there was no information available to the SIU to justify their taking any action to abate the risk of Mr Khayre’s conduct on 5 June 2017. They did not know that Mr Khayre was accessing extremist material online in 2017 and the SIU assessments were supported by the assessments conducted with Mr Khayre’s CISP case worker and the CV assessments.
38 Exhibit 1, CB pages 517-518 39 Transcript of Proceedings dated 15 March 2021, pages 35-36.
40 Ibid, page 38.
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ii. Witness F41 Employed as a CISP case worker, Witness F gave evidence about his involvement with Mr Khayre for the period December 2016 to June 2017.
The CISP sought to address the needs of Muslim men in the community and offered a range of social welfare services aimed at supporting the reintegration from prison into the broader Islamic community of individuals who presented with needs associated with radicalisation to violent extremism. The program was delivered across three main areas—social and welfare, religious and clinical support.
Between 2014 and 2017, the CISP records indicated that Mr Khayre received 104 mentoring sessions with his CISP mentor and 19 intensive case management sessions with his CISP case manager. The records indicated further that Mr Khayre’s case had been reviewed six times during the period 2014 to 2017 by the CISP Review panel.
41 Exhibit 5, statement of Witness F 42 Transcript of Proceedings dated 16 March 2021, pages 56-66.
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iii. Second CISP employee44 This witness was the manager of the CISP which was administered by the Islamic Council of Victoria at the time when Mr Khayre was engaged in the program. By and large, the evidence of this witness provided an overview of 43 Subsequent investigation revealed that the items were later believed to be the proceeds of crime, derived from a burglary committed on 22 April 2017 in Essendon.
44 Court File, On application by the DJCS, the evidence of this witness was protected by a Proceeding Suppression Order granted on 19 March 2021. The witness’ statement was redacted to reflect previous applications by the DJCS. Although no Pseudonym Order was granted in respect of this witness, for the purposes of this Finding I will not identify the witness.
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CISP involvement with Mr Khayre and complemented the evidence of Witness F in relation to Mr Khayre’s engagement with the CISP.45 This witness provided further insight into the operation of the CISP mentorship and the role that it played observing signs that Mr Khayre may have been experiencing any form of ‘distress and anxiety’ and if Mr Khayre was observed to show any signs of ‘distress or anxiety’, the CISP aimed to assist with positive intervention strategies to alleviate any related issues.
The CISP manager also provided insight in the changes made to the CISP mentorship program in response to the Brighton Siege incident.
iv. Mario Nuzzo46 Mr Nuzzo had been employed at the Department of Justice and Regulation (DJR) for 24 years and testified in his capacity as a DJR Principal Practitioner, a role he had been performing for a period of three years when the Brighton Siege incident occurred. On the day of the incident, Mr Nuzzo was the Duty Director.
Mr Nuzzo’s evidence centred on the DJR’s monitoring of Mr Khayre by means of an electronic bracelet to enforce a curfew imposed by the APB as a condition of his parole. According to Mr Nuzzo, Mr Khayre was subject to a daily curfew between the hours 10 pm to 6 am 45 Exhibit 6, statement of the second CISP employee.
46 Exhibits 7 to 11, statement of Mario Nuzzo and supporting documents.
47 Transcript of Proceedings, 16 March 2021, pages 103 to 104.
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v. Anita Lis48 Adopting the statement of Stuart Ward whose role she now fulfilled and who was unavailable at the time of the Inquest, Ms Lis testified in her capacity as the APB General Manager of Operations. Ms Lis’ evidence covered CV’s involvement with Mr Khayre including the decision-making process surrounding his release on parole in December 2016.
According to Ms Lis, Mr Khayre first became eligible for parole on 21 April
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release on parole. Mr Khayre was then admitted to various programs to address his behavioural issues.
On 22 March 2015, the APB received a Community Offenders Advice and Treatment Service (COATS) Confidential Forensic Drug and Alcohol Assessment Report which identified a link between Mr Khayre’s substance use and his offending. Based on this finding, the COATS Report recommended that when Mr Khayre is released on parole, he attends counselling at a local drug treatment service.
On 16 April 2015, having acknowledged the recommendations of the COATS Report, the APB determined that to consider any further application for parole, Mr Khayre had to complete High Intensity Violence Intervention Program (HIVIP) and the Exploring Change Program.
On 26 August 2015, the APB received a report from Caraniche Drug and Alcohol Services (CDAS) which indicated that Mr Khayre had successfully completed all the tasks set for him as recommended in the COATS Report.
According to the CDAS, by his proactive engagement in the program, Mr Khayre gave them the impression that he was motivated and committed to the program’s projected outcomes.
In addition to the CDAS program, in the same month, August 2015, Mr Khayre enrolled in an offence specific intervention program with Offending Behaviour Programs which he duly completed over the course of the next few months.
On 12 August 2016, the APB received Mr Khayre’s second application for parole replete with a Case Management Review Committee Parole Application Report (CMRC PAR) dated 10 August 2016 indicating that Mr Khayre had met the threshold for progressing to the parole planning stage because he had completed his HIVIP requirements. The CMRC PAR indicated further that Mr Khayre’s recent behaviour or conduct while he was in prison, was satisfactory and although he was noted to be a ‘serious violent offender’ (SVO), his behaviour had improved considerably.
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On 14 November 2016, the APB received a Parole Suitability Assessment (PSR) dated 4 November 2016 from CV in terms of which Mr Khayre was deemed a suitable candidate for parole on the following conditions: a) To undergo assessment, as directed, to determine suitability for drug and alcohol abuse treatment, medical or psychological treatment and to undergo such treatment if necessary; b) To submit to testing for alcohol consumption or drug use as directed; c) To submit to a curfew at his family home each day between 10 pm and 6am; d) To submit to electronic monitoring for curfew compliance; e) Not to contact his victim or his victim’s family; f) To undergo assessment for offending behaviour programs and participate if any were deemed to be appropriate; g) To submit to intensive parole for the period specified by the APB; h) To undertake unpaid community work as directed unless otherwise employed or participating in an approved educational or training program; and i) To report to his supervising community corrections officer at a frequency and duration to be determined by the APB.
On 30 November 2016, the APB approved Mr Khayre’s application for parole to commence on 14 December 2016. A copy of the parole order dated 14 December 2016 was sent to the Broadmeadows Community Corrections office where Mr Khayre was to be supervised.
Mr Khayre’s parole period was set to expire on 14 December 2017.
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vi. Jennifer Hosking49 Ms Hosking testified in her capacity as the Assistant Director, Community Corrections Services (CCS). Confirming the processes described by Ms Lis in assessing Mr Khayre’s suitability for parole, Ms Hosking’s evidence goes on to include the measures taken by CV to monitor, supervise and manage Mr Khayre while he was on parole from 14 December 2016 to 5 June 2017, the day of the Brighton Siege incident.
According to Ms Hosking, Mr Khayre was supervised by a Senior Parole Officer (SPO) due to his SVO status and commenced his parole at the highest level of intervention as a “designated ‘Priority 1’ high risk parolee”. Mr Khayre’s SPO, like all other SPOs, received ongoing, specialised training to manage the parolees under their care and management.
During the period of his parole, until the events of 5 June 2017, Mr Khayre had two SPOs. His first SPO, dealt with his initial release into the community after which he was managed by a second SPO from about 19 January 2019.
While on parole, between December 2016 and May 2017, Mr Khayre was tested for illicit drugs thirteen times—all his tests returned a negative result. In addition, Mr Khayre was monitored, managed and supported with CISP supervision, drug and alcohol counselling and regular home-visit supervision appointments by CCS staff. He was also enrolled in a treatment and support program, Maintaining Change.
The evidence before me indicated further that Mr Khayre had contact with the CCS on multiple occasions, approximately 65 times in total of direct contact with Mr Khayre, throughout his parole by way of home visits, reporting to the CSS for supervision, attending drug and alcohol counselling sessions and honouring his appointments for drug and alcohol testing.
49 Exhibits 18 to 31 _______________________________________________________________________ 31 of 42
Ms Hosking’s evidence indicated further that over and above his sessions with his CISP workers, Mr Khayre’s SPO collaborated with his CISP case worker(s) in providing support services to mitigate the risk of his returning to radicalisation and, by the CISP assessment, Mr Khayre had made positive progress with no signs of imminent radical extremism. Throughout his period of monitoring and supervision, neither the CISP case workers nor the CSS identified any instance where Mr Khayre had breached any of his parole conditions or showed any inclination to extremist ideology.
With regard to Mr Khayre’s compliance with his condition to perform community work, Ms Hosking’s evidence indicated that he performed 42 hours in total and on the one occasion where he was absent from work, 1 February 2017, Mr Khayre was certified to be medically unfit for duty on the day. From 24 March onwards, Mr Khayre was able to secure gainful employment with a bricklayer and submitted his bank statements to prove that he was gainfully employed.
With regard to Mr Khayre’s real-time electronic monitoring regime, Ms Hosking’s evidence indicated that, prior to the events of 5 June 2017, only one ‘low battery alert’ was triggered on 23 December 2016 at 1.12 am. After CCS followed up the alert with Mr Khayre’s emergency contact, the monitoring device was successfully charged and the cause for concern was alleviated.
Ms Hosking was the last witness to be called at the Inquest. After Ms Hosking was excused, Ms Ellyard tendered the balance of the Coronial Brief of Evidence.50
After the balance of the Coronial Brief of Evidence was admitted into evidence, I adjourned the proceedings to enable the interested parties to prepare for oral submissions on the Findings to be made. On 19 March 2021, the interested parties made their submissions for my consideration.51 50 Exhibit 32.
51 Prior to the Submissions Hearing, Mr Lawrie for the CCP and Ms Crock for Mr Hao’s family delivered written submissions for my perusal and elaborated on their written submissions at the Submissions Hearing.
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COMMENTS Pursuant to section 67(3) of the Coroners Act 2008, I make the following comments connected with the death: Was Mr Khayre’s conduct motivated by extremist ideology?
There is no doubt that violence, whether perpetrated in the public or private domain, has lasting effects on victims and their families. The events of the Brighton Siege on 5 June 2017 have left not only Mr Khayre’s own family without their loved one but has also impacted Mr Hao’s family significantly—his parents have lost their only child and his wife, her husband. In the same vein, I acknowledge the likelihood that the hostage in this matter may suffer lasting trauma, whether psychological or otherwise, from her experience during the Brighton Siege incident.
Politically motivated violence, on the other hand, driven by hatred, prejudice or bias towards a group of people based on race, religion or ethnicity, inter alia, affects an entire community or society. Given Mr Khayre’s history of extremist dissidence, I considered the impact, if any, of his political persuasion on his decision to follow that course of action which culminated in his own death.
In determining whether Mr Khayre’s conduct on 5 June 2017 was motivated by extremist political ideology, I considered the evidence relating to his accessing extremist audio-visual online material prior to the day of the incident and his conduct during the Brighton Siege event including his call to the Channel 7 Newsroom while holding a hostage at the BISA and further, Mr Khayre’s own claim relating to his affiliation to IS and Al-Qaeda. Although this evidence appears to suggest that his conduct was possibly motivated by extremist ideology, there is little by way of substantive evidence to corroborate Mr Khayre’s claims as shown by his spontaneous 52 The absence of any reference to any particular aspect of the evidence or the submissions made by the interested parties does not imply that I have not considered that evidence or the submissions.
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utterances to the Channel 7 Newsroom. The available evidence does not support a conclusion that Mr Khayre’s conduct apropos the events of the day was planned with any degree of sophistication or links to the terrorist organisations he referred to.
Moreover, the evidence of the hostage, according to whom Mr Khayre did not want to kill the police but wanted the police to kill him, is not indicative of extremist or political ideology.53
Mr Khayre’s fitness for conditional release on parole
On behalf of Mr Hao’s family, Ms Crock submitted that the decision of the APB to release Mr Khayre on parole was taken ‘without proper reference to his history of radicalisation’ and further that the decision was based on ‘Corrections Victoria’s inadequate provision of relevant material’ to the APB in relation to the risk of radicalisation posed by Mr Khayre’.54
Ms Crock submitted further that one of Mr Khayre’s conditions of release on parole, that ‘he could not associate’ with his co-accused in the 2009 terror plot trial, indicates an awareness of his potential of radicalisation and despite the ‘presumption against parole in circumstances where there is either terror related charges or a risk of radicalisation’ (sic), the APB took a decision to release Mr Khayre on parole.
Consequently, that decision to release Mr Khayre on parole was taken in the ‘absence of a proper identification of the risk of radicalisation’ and the decision -making process was therefore deficient. To place Ms Crock’s submissions in context, I had regard to the evidence of Ms Hosking and Ms Lis.
54 Transcript of Proceedings, 19 March 2021, page 202. According to Ms Crock the CV placed limited or minimal information before the APB upon which to exercise their discretion in approving Mr Khayre’s parole.
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posed in the past but added that since his imprisonment in 2012, by ongoing assessment, there was nothing to indicate or to ‘cause’ CV ‘to think that [Mr Khayre] was radicalised’.55
Ms Lis’ evidence detailed the all the steps taken by the APB before approving Mr Khayre’s release on parole including the various programs he attended before he was considered eligible for release on parole. The relevant documentary evidence before me indicates that the APB had taken a proactive approach in considering Mr Khayre’s suitability for parole.
I have considered all the evidence contained in the documents relating to the various assessments which were received into evidence at the Inquest and while that evidence indicates that there was material available to CV to suggest that in the past Mr Khayre was at risk of radicalisation, the details of that risk as it presented in the past was not brought to the attention of the APB in considering his release on parole. The evidence indicates that the APB was unable to consider the existence of the ostensible risk of radicalisation which Mr Khayre may have presented after his release on parole.
Given that Mr Khayre was assessed for release on parole on more than one occasion and further that he had complied with further directions form CV and APB to support future parole applications, I am satisfied, on the available evidence, that in collaboration with CV, the APB’s assessment of Mr Khayre’s eligibility for release on parole was adequate in that they took into account all the available and necessary factors before making the decision to grant his application for parole.
Was Mr Khayre adequately supervised, managed and monitored while on parole?
55 Transcript of Proceedings, 17 March 2021, page 152.
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Consequently, Victoria Police assessed Mr Khayre as ‘a low risk to the Victorian security environment’.
DI Milner testified further that the SPT assessment was reviewed regularly, and the last review was conducted in May 2017, at which stage there was no information available to the SIU about Mr Khayre’s viewing of extremist material online. Even if information of that nature had been available, it would not have been possible to monitor Mr Khayre’s telephone or internet use without first obtaining a telecommunications intercept warrant, following due process.56
Given that Mr Khayre’s access to extremist online material only became known after the events of 5 June 2017 and given that Victoria Police or Corrections Victoria could only take action against Mr Khayre for his conduct in accessing online extremist material if they had information to support an application for a telecommunications intercept warrant to authorise their monitoring of his online activities, I am satisfied, on the available evidence, that Victoria Police’s ‘passive monitoring’ of Mr Khayre while on parole was appropriate in the circumstances, based on the material available to them at the time.
Efficacy of the CISP
56 Transcript of Proceedings, 15 March 2021, page 30 et seq. Telecommunications intercept warrants are issued subject to strict conditions as provided for in the Telecommunications (Intercept and Access) Act 1979 (Cth) and the Telecommunication (Interception) Act 1988 (Vic).
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The evidence before me further indicates that if Mr Khayre had developed a risk of radicalisation while on parole, given the focus of the ongoing CV assessments on countering criminal recidivism and given Victoria Police’s ‘passive monitoring’ of radicalisation as referred to by DI Milner, the CISP workers would have been best placed to identify whether Mr Khayre was developing a tendency to radicalisation.
On the evidence of Witness F that he would have deferred to the CISP mentor if he had identified any tendency to radicalisation which Mr Khayre may have had and further, on the evidence of the second CISP witness that, due to unforeseen circumstances, Mr Khayre’s CISP mentor was not available from February 2017 and no other arrangements had been made for another mentor to manage Mr Khayre’s spiritual needs, I considered the efficacy of the CISP in Mr Khayre’s supervision, management and monitoring while on parole. I remained mindful, however, that identifying any deficiencies in Mr Khayre’s engagement in the CISP or in the CISP itself, would only be with the benefit of hindsight.
The available evidence indicates that the CISP mentor fulfilled an important role in abating any risk that Mr Khayre may have been moving towards an incorrect interpretation of his faith if such a risk had been identified. It therefore follows that the availability of a CISP mentor from February 2017 onwards, may have assisted Mr Khayre only if it was identified that he was at risk of radicalisation. The weight of the available evidence does not, however, support a conclusion that the CISP workers were able to identify that Mr Khayre was at risk of radicalisation.
Similarly, there is no evidence to support a conclusion that Mr Khayre could have benefitted from ongoing mental health treatment while he was on parole. I have noted that Witness F, according to whom, while he did not have authority to compel Mr Khayre to submit to mental health treatment, he encouraged him to seek psychological counselling for concerns he raised about the trajectory of his younger brother’s life in 57 Transcript of Proceedings, 16 March 2021, page 66 _______________________________________________________________________ 37 of 42
view of his own life experiences. However, with the benefit of hindsight, although such treatment may have been helpful, there was no material before the APB, when they considered Mr Khayre’s release on parole, to consider the possible implementation of psychological treatment as a condition of his parole.
Monitoring Mr Khayre’s conduct in the months leading to the Brighton Siege incident
The evidence before me indicates that Mr Khayre’s conduct in preparation for the Brighton Siege incident had gone unnoticed by those agencies tasked with his supervision, management and monitoring while on parole.
Firstly, neither Witness F nor Mr Khayre’s parole officer knew that he had stopped working and no checks were conducted to verify his working arrangements after the initial period when he had stopped doing community service because he had become gainfully employed. However, the evidence indicates that nothing arose from Mr Khayre’s supervision appointments to raise any doubt about Mr Khayre’s working arrangements to prompt the APB to check whether he was still gainfully employed.
Accordingly, the available evidence is not sufficiently cogent to enable me to criticise the parole officers or the APB for their inability to identify that Mr Khayre had stopped working.
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Taking the latter approach, when his family confronted him, Mr Khayre convinced them that what they had discovered was his loot from previous offending and that he had not been involved in recent criminal activity. Subsequent investigations, however revealed that the items were indeed the proceeds of recent criminal activity, but it is not clear, on the available evidence, whether Victoria Police or CV would have been able to identify the source of the items to enable them to take any remedial action against Mr Khayre or to cancel his parole.
Thirdly, with regard to Mr Khayre’s acquisition of illegal firearms, although it was significant in the circumstances of the Brighton Siege incident, given the clandestine nature of that criminal activity itself, it would have been difficult for the relevant authorities, in the ordinary course, to discover that Mr Khayre had acquired illegal firearms. The available evidence does not support a conclusion that knowledge of Mr Khayre’s acquisition of illegal firearms by the authorities could have been easily ascertained or detected.
Finally, while I acknowledge that there is a strong expectation from the community that all reasonable steps should be taken to monitor those who pose a risk of harm to the community in the manner played out in the Brighton Siege incident and for authorities to proactively engage their resources to take remedial action in a timely manner, I am mindful that my findings and comments as a coroner, should be guided by the available evidence rather than be made with the benefit of hindsight.
Although it is regrettable and unfortunate that crucial information was not available to the authorities tasked with approving Mr Khayre’s release on parole and tasked with supervising, managing, and monitoring him while he was on parole, the evidence does not provide a basis for adverse comments about or findings against the interested parties in this matter. In my view, the weight of the available evidence supports a conclusion that the conditions attached Mr Khayre’s parole as well as his supervision, management and monitoring in the community were adequate and appropriate in the circumstances.
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FINDINGS The standard of proof for coronial findings of fact is the civil standard of proof, on the balance of probabilities, with the Briginshaw gloss or explication. The effect of this authority 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.58 Pursuant to section 67(1) of the Coroners Act 2008, I make the following findings having considered the body of evidence available to me:
I find that the identity of the deceased is Yacub Khayre, born on 15 October 1987, who died on 5 June 2017 at the Buckingham International Serviced Apartments, Bay Road, Brighton 3186 in the State of Victoria.
I accept and adopt the medical cause of death as ascribed by Dr Parsons and I find that Yacub Khayre died from multiple gunshot wounds.
I find that Yacub Khayre sustained the fatal gunshot wounds in the circumstances where, after he had taken a woman hostage and after he had shot and killed Kai Hao, an employee working in the reception area of the Buckingham International Serviced Apartments, Yacub Khayre rushed out of Apartment 11 at the Buckingham International Serviced Apartments, and while exclaiming certain words, he discharged two rounds from the shotgun in his possession upon the Victoria Police Special Operations Group members and the Critical Incident Response Team members who immediately returned fire on Yacub Khayre, killing him instantly.
The weight of the available evidence supports a conclusion that Yacub Khayre did not adopt a sophisticated planning strategy in carrying out the events at the Buckingham International Serviced Apartments on 5 June 2017 and I am unable to make a definitive 58 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363. “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issues had been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences…” _______________________________________________________________________ 40 of 42
finding on whether the action he took was tantamount to a terror attack or that it was motivated by extremist ideology.
On the evidence available to me, I am unable to make a definitive finding on what motivated Yacub Khayre to run out of Apartment 11 at the Buckingham International Serviced Apartments while discharging the shotgun in his possession upon Victoria Police Special Operations Group members and Critical Incident Response Team members. The weight of the available evidence does, however, support a conclusion that in returning fire, Victoria Police Special Operations Group members and the Critical Incident Response Team members took reasonable action to ward off an imminent, life-threatening attack by Yacub Khayre. In the circumstances, I am unable to make a finding that Yacub Khayre’s death was preventable.
I acknowledge the interest of the Victorian community in the need to curtail conduct as occurred in the Brighton Siege incident and further, I acknowledge that the Victorian community has a legitimate expectation that the relevant authorities are to take all reasonable and necessary precautionary measures to avert harm to the community by groups or individuals who engage in dissident behaviour. However, the weight of the available evidence in this matter does not support a conclusion Corrections Victoria or the Adult Parole Board did not take all the precautions necessary to ensure that they had made the correct decision, on the material available to them at the time, in authorising Yacub Khayre’s release on parole and I find that the decision taken by the relevant authorities to release Yacub Khayre on parole was reasonable in the circumstances.
I find further that the conditions attached to Yacub Khayre’s release on parole were reasonable in the circumstances.
Similarly, the weight of the available evidence does not support a conclusion that Yacub Khayre’s supervision, management and monitoring by the relevant authorities while he was on parole was inadequate. In all the circumstances, I find that Yacub Khayre’s supervision, management and monitoring by the relevant authorities, while on parole, was adequate.
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To enable compliance with section 73(1) of the Coroners Act 2008 (Vic), I direct that the Findings will be published on the internet in accordance with the rules.
I direct that a copy of this Finding be provided to the following: Sudano Abukar Adult Parole Board Corrections Victoria Chief Commissioner of Police Community Integration Support Program Lennon Lawyers on behalf of the hostage Detective Senior Sergeant Mark Colbert, Coroner’s Investigator Signature:
AUDREY JAMIESON CORONER Date: 20 July 2023 _______________________________________________________________________ 42 of 42
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