Deceased
Child JP
Demographics
16y, male
Coroner
Coroner Urquhart
Date of death
2018-02-08
Finding date
2021-12-21
Cause of death
multiple injuries sustained in motor vehicle crash
AI-generated summary
A 16-year-old unlicensed driver died in a high-speed crash while being pursued by unmarked police over 14 km. The driver attempted a dangerous overtaking manoeuvre on a gravel verge while evading police. Two detectives in the pursuing car failed to voluntarily terminate the pursuit despite multiple policy violations: driving through a service station at unsafe speed, driving on the wrong side of the road against a red light, and excessive speeds exceeding 80 km/h limit. The passenger detective provided inadequate situation reports to the Police Operations Centre, failing to report critical dangerous driving by the pursued vehicle. The coroner found these failures contributed to the death. The Internal Affairs Unit investigation was also deficient, failing to compulsorily interview the detectives or obtain expert policy advice. Recommendations focus on dashcam installation, expert policy review in future investigations, and compulsory interviews of subject officers in fatal incidents.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Error types
Drugs involved
: 21 DECEMBER 2021 : CORC 162 of 2018
Catchwords: Nil Legislation:
Nil
Counsel Appearing:
Ms R Collins assisted the Coroner Ms E Langoulant and Ms R Belton (Aboriginal Legal Service) appeared on
behalf of the family
Ms S Keighery (23-25 February 2021), Mr J Berson (12- 3 April 2021) and Dr C Payne (State Solicitor’s Officer) appeared on behalf of the Western Australia
Police Force
Case(s) referred to in decision(s):
Nil
Coroners Act 1996 (Section 26(1))
IL, Philip John Urquhart, Coroner, having investigated the death of a male child referred to as Child JP with an inquest held at Perth Coroners Court, Central Law Courts, Court 85, 501 Hay Street, Perth, on 23-25 February and 12-13 April 2021, find that the death occurred on 8 February 2018 at Great Eastern Highway, Hovea, from multiple injuries in the following circumstances:
Contents SUPPRESSION ORDERS ..u.ccecssssccceeccsessvseeseereeceseneeesseesreneeseuseensiassensssennenesseneccerecehesiuaetuneeesneaas 4
CHILD JP ciceccccccccsesesssscssssecsssnenscsenesseessecsesaesesecsnensseeseesesecneeeeesenenestenneeecreetnenseereent eee cessenessr ogee tananes THE EVENTS OF 8 FEBRUARY 2018... cee vseaecateeaeeeeseasessecsssensesssssanecsnaeneresneneanissesaaoreasntas 10 The occupants of the car driven by Child JP... cscs iesecenecnressesectsstasesnecnenseaes 10 The first evade police incident .ccsccssesessesecseseeesnessesenencceeneeis tatters reresieneensenes seceneevnaee 10 The second evade police incident ic ciscissesecsseesesnessenesesssseeteoseneeisanenceneenenrivensinesseness besten 12 The final evade police incident secceseeeceeee Uisasecueascevavasevensseseeneeanesesssesusensssneasersnssseseneesarenenesnees
CAUSE AND MANNER OF DEATH Cause of death ...
Manner of death ....ccccccccscscessseseseccstscsnseseesseesseseesisesessseessssenessssrseesierereeinasacsessenssesesereatserse geet THE CANNABIS IN CHILD JP’S SYSTEM... ccesesctsestsreneenssnreesensrercreess et snserrseasnnssreerereee 20 ISSUES RAISED BY THE EVIDENCE... .cccsccceesstecsrreeetrrentereneresreriesiecnerrestienieneerienneneneens 24
The first evade police incident... iccsccessessessessessenerseeeeeerteesiesneeierreniireani reser esesseniaaes 24
_ Alleged ramming of the Nissan by GE120
The suspected driver of the Nissan was not Child JP... cccseessesseeseseeesreesrersesssntnesessenes 26
The obligations of Officer Baker ....cccccsesseecesesessseeceesneenesrseeisneneiseneeisneassranseresnrennreages 30
ISSUES RAISED BY THE EVIDENCE REGARDING THE FINAL EVADE POLICE INCIDENT voecccccccsesesssesesseetersesesvssenersssscsssnscsessaseanssveneneenessseasesssenensuseaneasnserenereeesseseeetsesteasissuestsenere
What to consider when making a risk assessment
Were risks assessments undertaken by the detectives during the final evade police incident? ,.. 34
Should GM411 have voluntarily terminated after the Nissan’s manner of driving at the Caltex
Was Detective Sutton’s initial situation report adequate? vc cccessseseseseene nescence 42
Should GM411 have voluntarily terminated between Midvale and Hovea because of the
The overtaking of Ms Hin’s car by the Nissan. 0... cecesseeesseeeeesseeenensennessamasecirnessneneeeties The overtaking of Ms Smoothy’s car by the Nissan THE INVESTIGATION BY THE INTERNAL AFFAIRS UNIT uo cecccseseeseeeesersesensrsreenrers 62 Tintroduction ...cccccecsesssssssessccecseescssevscsesreececeeescdssessedcsnsesdsusenscsusesestesensaesenessessseassesenestssanenonenacaes 62 Changing hands... ccc ccccsessseeseiseessesssseensresesssssesessrsenesrsssenrisssesesiseanesnseeeecnreeeseetsseestarunansey
Failure to interview the two detectives Failure to obtain a policy expert’s opinion The decision not to rely on AVL datas. ccssenesesensrseessveesssnserstessssessassssnasrsesnerienseseeneenes A concluding COMMENE wc seeeeseeecerrerssieescirseseeseseansisseensessnsassssnenssssneseersnseenceneetessosnees
Recommendation No.1: Installation of “dashcam” technology in police cars that undertake emergency driving
Recommendation No.3: Compulsory interviews of subject officers by the TAU wes 83
Recommendation No.1... cece eevee
Recommendation No.2
Recommendation NO.3..ccccecccsscsvscsesessesevsessenssscsrcsssectevssseevsneenseseeetersessesnanssssusasecsseseesersesseaeness 84 Recommendation No.4...cccccsccccsecesecescrsesssrscscsresssenersssssnseeensesestersesesssnanesssusesecsseeeessreesssersees 84 CONCLUSION ooo ecccccccscsssscssssscsssscccssseresevessesescseseseeeseeeeneenenecaeneeeersseaseseseesosesasseseasssessesesssasensenee 85
That there be no reporting or publication of the details of any of the
versions of the WA Police Emergency Driving Policy and Guidelines, including, but not limited to, any cap on the speed at which police officers are authorised to drive.
. That there be no reporting or publication of the details of the WA Police document titled TR-07.16 Automated Vehicle Locator Systems (AVLS).
INTRODUCTION 1 In findings for an inquest in 2013 that involved a police pursuit, the Deputy State Coroner for New South Wales, Magistrate Hugh Dillon, stated:!
By definition, a police pursuit that results in a fatal motor vehicle accident is a failure: it has not only failed to prevent dangerous driving or deter the commission of a serious offence, it has resulted in the very thing it is intended to avert - death and injury on the roads. A large number of pursuits also fail to apprehend offenders.
The question must be asked therefore when such a dangerous means of law enforcement should be undertaken?
This is an issue on which reasonable, intelligent and well-motivated minds might differ.
But if the solution to a problem is worse or potentially worse than the problem itself, the solution has become part of the problem. (emphasis added)
2 The deceased (Child JP) died on 8 February 2018 at Great Eastern Highway, Hovea, after the car he was driving struck a tree-by the side of the verge near Brooking Road (the crash). He was 16 years and 8 months old. At the time of his death; Child JP was being followed by two detectives from the Western Australian
' Inquest into the Death of Hamtish Raj, State Coroner’s Court of New South Wales, 7 April 2014, File number 2011/00389491 [78-80]
Police Force (WAPF) in an unmarked police car that had been pursuing the car
being driven by Child JP for about 14 kms prior to the crash.
Child JP’s death was a reportable death within the meaning of section 3 of the Coroners Act 1996 (WA) (the Act) because it resulted from injury. By reason of section 19(1) of the Act, I have jurisdiction to investigate Child JP’s death.
The death occurred during a police intercept incident (ie. a police pursuit).
Therefore, pursuant to section 22(1)(b) of the Act, an inquest into Child JP’s death was mandatory as it “appears that the death was caused, or contributed to, by any
action of a member of the Police Force’.
Section 22(1)(b) of the Act is enlivened when the issue of causation or contribution in relation to the death arises as a question of fact, irrespective of whether there is
fault or error on the part of the police officers involved.
On the basis that it would be contrary to the public interest, made suppression orders in respect to any reporting or publication of the details of any versions of the WAPF document titled “TR-07.04 Police Emergency Driving Policy and Guidelines” and the details of the WAPF document titled “TR-07.16 Automated Vehicle Locator Systems”. 1 also suppressed Child JP’s name from publication and any evidence likely to lead to his identification. The terms of these orders are set
out on page 3.
I held an inquest into the death of Child JP at Perth over the course of five days on 23-25 February and 12-13 April 2021. The following 11 witnesses gave oral evidence:
i, Senior Constable Bryan Evans, the driver of the police car involved in the first evade police incident;
? | have used the ranks of the police officers as at 8 February 2018, except for Inspector Hayes, whose cited rank was at the time he gave evidence at the inquest. Senior Constable Ryan was no longer a member of the WAPF at the time of the inquest.
ii. First Class Constable Michael Ruffell, the driver of the police car involved in the second evade police incident;
iii. Constable Darren Maher, the passenger in the police car driven by First Class Constable Ruffell;
iv. Christine Jane Smoothy, an eye-witness to the crash;
Vv. Senior Constable Andrew Baker, the police officer who deployed a " tyre deflation device (stinger) across the east bound lanes of Great Eastern Highway, Hovea;
vi. Detective Sergeant Stuart Mansell, the driver of the police car involved in the final evade police incident;
vii. Detective Senior Constable Mark Andrew Sutton, the passenger in the police car driven by Detective Sergeant Mansell;
viii. Detective Senior Constable Stephen Wallace, the investigating officer from the WAPF Major Crash Investigation Section;
ix. Detective Acting Sergeant Ian Zuidema, the author of the WAPI Internal Affairs Unit (IAU) report;
X. Senior Constable Brendan Ryan, the police officer who obtained CCTY footage relevant to the final evade police incident, and
xi. Inspector Mick Hayes, an inspector from the WAPF State Traffic Operations.
s The documentary evidence at the inquest comprised of one volume of the brief that was tendered as exhibit 1 at the commencement of the inquest and a further 11
exhibits (exhibits 2, 4-13) that were tendered during the inquest.’
9 Atthe conclusion of the inquest, I requested an additional statement from the police officer who was the Police Operations Centre Communications Controller (POCCC) at the time of the three evade police incidents involving the driving of Child JP. By covering letter dated 9 July 2021, Mr Berson, counsel for the WAPF, forwarded a signed typewritten statement dated 2 July 2021 from Inspector Robert Kirby (Inspector Kirby), who was the POCCC for the first two
evade police incidents and a signed typewritten statement dated 9 July 2021 from
3 There was no exhibit numbered 3 as those two documents were only marked for identification
il
Senior Sergeant Stephen Jones (Officer Jones), who was the acting POCCC at the time of the final evade police incident. I have accepted these two statements into
evidence,*
On 8 April 2021, counsel for the interested parties, Counsel Assisting and I visited the location of the crash and the location where the stinger was deployed by Senior Constable Andrew Baker (Officer Baker). The group was escorted by Detective Senior Constable Stephen Wallace (Detective Wallace) from the Major Crash Investigation Section. Counsel Assisting made notes of what was
observed and also took eight photographs.°
My primary function has been to investigate the death of Child JP. It is a fact-finding function. Pursuant to section 25(1)(b) and (c) of the Act, I must find, if possible, how the death of Child JP occurred, and the cause of his death. Given the known circumstances in this matter, those findings can be made without
difficulty.
Pursuant to section 25(2) of the Act, I may comment on any matter connected to the death of Child JP, including public health or safety, or the administration of
justice. This is an ancillary function of a coroner.
Section 24(5) of the Act prohibits me from framing a finding or comment in such,
an offence. It is not my role to assess the evidence for civil or criminal liability and
’ Tam not bound by the rules of evidence.
In making my findings, I have applied the standard of proof as set out in
Briginshaw v Briginshaw (1938) 60 CLR 336 (Dixon, J), which requires a
5 Exhibit 6, notes and photographs from the site visit at 8 April 2021
consideration of the nature and gravity of the conduct when deciding whether a
matter has been proven on the balance of probabilities (the Briginshaw principle):
. reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The
I am also mindful not to insert hindsight bias into my assessment of the actions taken by police in their dealings with Child JP on 8 February 201 8.’ The need to adhere to that principle is particularly relevant in this matter as police officers directly involved in the pursuit of a driver who has failed to stop are often required
to make quick decisions in an highly adrenalised environment.®
During the course of an inquest, and within the related finding, a coroner is permitted to make findings or comments that are adverse to the interests of an “interested person”, which includes a person who, by act or omission, may have caused or contributed to the death. Pursuant to section 44(2) of the Act, before I make any finding adverse to the interests of an interested person, that person must be given the opportunity to present submissions against the making of such a
finding.
During the course of the inquest, I outlined to counsel for the interested parties that the following were particular aspects of the case I would invite submissions to be
made: (i) whether there was compliance with the WAPF Emergency Driving Policy
and Guidelines (the Policy) during the final evade police incident? and (ii) the
6 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J)
7 Hindsight bias is the tendency, after the events, to assume the events are more predicable or foreseeable than they really were: Dillon, H & Hadley, M, The Australasian Coroner's Mamial (2015) 10.
Sts 13.4.21 (Hayes), p.502
9 ts, 24.2.21, p.249
adequacy of the IAU investigation into its analysis of the actions of the two
detectives involved in the final evade police incident.’
Child JP was born on 8 June 2001, He was the second of two sons to his mother and father. His father left the family shortly after Child JP was born and he had
very little contact with his wife and sons from then on.
Due to his mother’s itinerant lifestyle, Child JP attended a number of primary schools, He also attended several high schools, before he stopped going to school when he was 15 years old. However, he had plans to attend TAFE and complete his high school certificate, following which he would enter an apprenticeship as a chef or a boilermaker, At the time of his death, Child JP was working as an
amusement ride operator.
From January 2015, Child JP lived with his aunt and her family. This environment provided Child JP with some much-needed stability, something that had been lacking in his life up until then and afforded him the opportunity to gain confidence
and work towards the future he planned.
Child JP enjoyed being with his family and friends. He liked motorbike riding, swimming, watching movies and fishing. He also enjoyed cooking for his relatives
and friends.
Despite the many setbacks he had experienced earlier in his life, Child JP had formed close connections with his family and friends. He had also developed a very close relationship with his girlfriend, and they had made plans to work and travel
together.
10 ts, 13.4.21, p.525 ‘1 Exhibit 1, Volume 1, Tab 69, WAPF Victimology Information Form
The occupants of the car driven by Child JP
23 ~~ Late in the afternoon of Thursday, 8 February 2018, Child JP was driving a 1999 model Nissan Pulsar (the Nissan), There were two others in the Nissan: Child JP’s girlfriend, who was seated in the front passenger seat and a 16-year-old male friend,
who was seated behind the driver’s seat.
24 The Nissan had been bought by Child JP’s girlfriend from a female friend on 2 February 2018.” As at 8 February 2018, the Nissan had not been transferred into the name of Child JP’s girlfriend due to issues with the Notification of Change of
Ownership documentation regarding a previous sale of the Nissan."
2s Although Child JP’s girlfriend had bought the Nissan, neither she nor Child JP held
a valid driver’s licence. Child JP did not even have a learner’s permit.
The first evade police incident 4
26 At about 5.30 pm on & February 2018, Senior Constable Bryan Evans (Officer Evans) was driving a marked police car with the call sign GL101 (GL101).
First Class Constable Matthew Sheridan (Officer Sheridan) was in the front passenger seat of GL101 and he was responsible for operating the car’s police radio communications system (VKI). Both these police officers were based at Kiara
Police Station,
'2 A Ithough the statement of Child JP’s girlfriend says that the Nissan was bought on 2 January 2018 (Exhibit 1, Volume 1, Tab 29, Statement of Child JP’s girlfriend dated 22 February 2018, p.1), the statement of the previous owner says it was 2 February 2018: Exhibit 1, Volume 1, Tab 29, Statement of Nirvana Osborne dated 23 February 2018, p.3.
13 Exhibit 1, Volume 1, Tab 14, Statement of Child JP’s girlfriend dated 22 February 2018, p.1
14 Exhibit 1, Volume 1, Tab 39, Memorandum of Senior Constable Evans dated 21 February 2018; Exhibit 1, Volume 1, Tab 40, Memorandum of First Class Constable Sheridan (undated); Exhibit 1, Volume 1, Tab 13, ‘Transcript of Police Communications dated 8 February 2018
As Officer Evans drove GL101 along Bottlebrush Drive, Kiara, both officers observed the Nissan drive east on Morley Drive at an estimated speed of 90 km per
hour, in a posted 70 km per hour speed zone,
Officer Evans drove onto Morley Drive and pulled in behind the Nissan. When the emergency lights of GL101 were activated, Child JP slowed the Nissan down but did not stop. He then accelerated and turned left and drove north on Altone Road.
As Officer Evans followed the Nissan, he activated the siren, in addition to the emergency lights. Officer Sheridan provided the necessary details to VKI,
including the Nissan’s registration details.
Child JP drove towards the intersection of Altone Road and Benara Road, which is controlled by traffic lights. He stopped the Nissan in the right turn lane at a red traffic light. However, once all the other cars at the intersection stopped (presumably due to the activated emergency lights and siren of GL101), Child JP drove. the Nissan through the intersection contrary to the red traffic light and continued north on Altone Road. GL101 continued to follow.
At about this time, communications through VKI from the WAPF Perth Operations Centre (POC) conveyed the information that the Nissan was registered in the name of a previous owner of the Nissan. The POC also communicated through VKI that the Nissan was believed to be driven by a man, who had “multiple revocations” and was wanted by police for questioning.’> As GL101 was driving on Altone Road, the two police officers were authorised via VKI to engage in a priority pursuit of the Nissan. As it drove along Altone Road, the Nissan
accelerated to a speed of about 130 km per hour. GL101 maintained a similar speed.
At the intersection of Reid Highway, the Nissan turned left at a Give Way sign, and drove west onto Reid Highway. When -west bound traffic on Reid Highway became
15 This man was 31 years old at the time: Exhibit 1, Volume 1, Tab 11, IAU Report dated 23 April 2020, p.9
stationary due to some road works, the Nissan completed a U-turn over a gravel median strip and turned north back onto Altone Road. Officer Evans continued to
follow the Nissan.
32 The Nissan drove at about 60-70 km per hour along Altone Road before it turned right onto Marshall Road and began driving east. On Marshall Road, the Nissan reached a speed of about 100 km per hour in a posted 80 km per hour zone. GL101
travelled at about 130 km per hour to close the gap between it and the Nissan.
33 Ag the Nissan approached the intersection of Lord Street, which is controlled by a roundabout, the east bound traffic on Marshall Road was heavily banked up. ‘The Nissan then drove onto the incorrect side of Marshall Road and continued to drive towards Lord Street. When Officer Sheridan passed that information onto POC through VKI, GL101 was advised to terminate the pursuit. Although Officer Evans had followed the Nissan onto the incorrect side of the road for a short distance, when he was told to terminate the pursuit, he drove GL101 back to the correct side of the road.!® The Nissan turned right at the roundabout (on the incorrect side of the road'’) and drove south on Lord Street towards Reid Highway. GL101 had no
further involvement with the Nissan.
The second evade police incident ®
34 At about 5.30 pm on 8 February 2018, First Class Constable Michael Ruffell (Officer Ruffell) was the driver of a marked police car with the call sign GE120 (GE120). With him was Constable Darren Maher (Officer Maher), who was the front seat passenger and, therefore, was responsible for radio comimunications.
These two police officers were based at Midland Police Station. They were aware
16 Exhibit 1, Volume 1, Tab 18, Dash cam footage from the car driven by Vance De Jager
17 Exhibit 1, Volume 1, Tab 17, Statement of Vance De Jager dated 9 February 2018; Exhibit 1, Volume 1, Tab 18, Dash cam footage from the car driven by Vance De Jager
18 Exhibit 1, Volume 1, Tab 41, Memorandum of First Constable Ruffell dated 27 February 2018; Exhibit 1, Volume 1, Tab 42, Memorandum of Constable Maher dated 27 February 2018; Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018
of the VKI communications regarding the first evade police incident and that it had
been terminated.
As these two police officers knew-the Nissan had been sighted travelling towards Reid Highway, Officer Ruffell decided to position GE120 in an “Emergency Vehicle U-turn’ area on the centre median strip of Reid Highway near Bandyup
Prison in case the Nissan came in that direction.
At 5.42 pm, the two police officers observed the Nissan drive past on Reid Highway travelling east. They were able to observe there were three occupants inside the Nissan; a male driver, a female in the front passenger seat and a male in the rear passenger seat behind the driver. It was travelling at the same speed as other cars.
Officer Ruffell drove onto Reid Highway behind the Nissan and activated the emergency lights and siren of GE120.
The Nissan did not stop. Instead, it accelerated, changing lanes on two occasions
to pass other cars. Officer Maher provided some details of their location over VKL.
After about 1.4 km, the Nissan and GE120 slowed down behind other cars that had stopped at the intersection of Reid Highway and Great Northern Highway due to a red traffic light. Officer Ruffell was able to manoeuvre GE120 so that it was
positioned on the right-hand side of the Nissan.
Once GE120 had stopped, Officer Maber got out and opened the driver’s door of the Nissan in order to grab the key from the ignition. As he attempted to do that, the cars in front of the Nissan began to move. Child JP then drove the Nissan forward, causing Officer Maher to let go of the driver’s door. As Child JP began to drive the Nissan through a small gap between two cars, the front driver’s side of the Nissan made contact with the left-hand side of one of the other cars. Once clear, he then turned right at the traffic lights and drove south on Great Northern
Highway.
Due to the collision between the Nissan and the other car, Officer Ruffell terminated his pursuit of the Nissan. He and Officer Maher attended to the driver
of the car that had been struck. That driver was not injured.
Officer Ruffell advised POC via VKI of the minor incident and that the Nissan was now travelling south on Great Northern Highway. GE120 had no further
involvement with the Nissan,
The final evade police incident ”
On the afternoon of 8 February 2018, Detective Sergeant Stuart Mansell (Detective Mansell) and Detective Senior Constable Mark Sutton (Detective Sutton) were at
Midland Detectives Office attending to administrative duties.
At about 5.40 pm, they overheard the VKI radio communications relating to the Nissan’s failure to stop. The two detectives stopped their administrative duties and left the office in an unmarked police car with the call sign GM411 (GM411). Their intention was to attempt to intercept the Nissan. Detective Mansell drove GM411 and Detective Sutton was in the front passenger seat of the vehicle and had the
responsibility of communicating over VKI.
As they had overheard the Nissan had been seen by police at the intersection of Great Northern Highway and Reid Highway in Middle Swan, the two detectives decided to drive north from Midland along Great Northern Highway.
After not seeing the Nissan, they turned right from Great Northern Highway onto Toodyay Road and drove east towards Roe Highway. At about 5.45 pm, as they
19 Exhibit 1, Volume 1, Tab 32, Statement of Detective Sergeant Stuart Mansell dated 19 February 2018; Exhibit 1, Volume 1, Tab 33, Statement of Detective Senior Constable Mark Sutton dated 21 February 2018; Exhibit 1, Volume 1; Tab 13, Transcript of Police Communications dated 8 February 2018; Exhibit 1, Volume 1, Tab 14, Statement of Child JP’s girlfriend dated 22 February 2018; Exhibit 1, Volume 1, Tab 15, Statement of Christine Smoothy dated 8 February 2018; Exhibit 1, Volume 1, Tab 24, Statement of Brittany Hin dated 22 February 2018; Exhibit 1, Volume 1, Tab 26, Statement of Janice Rhodes dated 22 February 2018; Exhibit 1, Volume 1, Tab 56, Major Crash Investigation Section: Initial Collison Assessment Report dated 12 February 2018
approached the intersection of Roe Highway, they saw the Nissan stopped at a red traffic light in the right turning lane. Detective Mansell pulled up behind the Nissan and Detective Sutton confirmed through VII that they had correctly identified the
Nissan.
As the traffic light turned green, the Nissan drove south onto Roe Highway. GM411 followed the Nissan and when it began to speed up and move through traffic, Detective Mansell concluded the driver must have recognised that, despite being unmarked, GM411 was a police car. The emergency lights and siren of GM411 were then activated, however the Nissan did not stop and began to pass other cars
at a speed of about 120 km per hour. The posted speed limit was 90 km per hour.
The Nissan continued to drive south along Roe Highway before it drove onto the off ramp for Great Eastern Highway. It then turned left onto Great Eastern
Highway, so that it was now travelling east. GM411 continued to follow the Nissan.
At about 5.48 pm, as the Nissan approached the intersection of Great Eastern Highway and Farrall Road (which was controlled by traffic lights), it cut across two lanes of traffic and drove through the forecourt of a Caltex service station (the Caltex forecourt). Detective Mansell followed the same route of the Nissan, a short
distance behind.
The Nissan drove through a vacant block next to the Caltex service station. The Nissan then turned right onto Farrall Road, driving on the incorrect side of the road.
It remained on the incorrect side of the road before turning left back onto Great Eastern Highway, contrary to a red traffic light facing cars on Farrall Road.
Detective Mansell continued to follow the Nissan and he also drove GM411 on the incorrect side of Farrall Road and entered Great Eastern Highway against the red
traffic light.
At about 5.49 pm, as GM411 continued to follow the Nissan cast along Great Eastern Highway, authorisation was given via VKI for the two detectives to
proceed with an evade police intercept.
The pursuit of the Nissan by GM411 continued for about another 10 km and lasted for approximately another five minutes. During that time the Nissan travelled at speeds of up to 130-140 km per hour in an area where the posted speed limit was 80 km per hour. It also overtook a number of cars, drove past a Multanova camera at 5.53 pm located on Great Eastern Highway, Hovea, near Park Road, at a registered speed of 128 km per hour, and then avoided a stinger which had been placed across the east bound lanes of Great Eastern Highway, near Bailey Road in Hovea. This avoidance was done by Child JP driving the Nissan onto the gravel verge at an estimated speed of 70-80 km per hour. Detective Mansell drove GM411 around the stinger in the same manner and followed the Nissan, which had accelerated after it had avoided the stinger. In order to catch up with the Nissan,
Detective Mansell drove at a speed in the vicinity of 150 km per hour.
In his efforts to get away from GM411, Child JP then drove between two cars that
were in both lanes of the dual carriageway of Great Eastern Highway.
Shortly after that overtaking manoeuvre, and at about 5.54 pm, Child JP began overtaking another car which was in the right-hand lane and travelling at about 80 km per hour. As there was another car in the left-hand lane, Child JP drove the Nissan onto the gravel verge on the right-hand side of the car he was overtaking.
As the Nissan overtook this car, it suddenly turned sharply to the left, and back onto the road from the verge. At this stage, Child JP lost control of the Nissan. It slid sideways across both lanes before it entered the gravel verge on the left-hand
side of the road. The front of the Nissan struck one tree and then collided with a
larger tree. The point of impact with the second tree was to the right-hand “B” pillar
of the Nissan.”°
Almost simultaneousty with the crash, the POC had advised over VKI that the pursuit of the Nissan by GM411 was to be terminated due to there being no resolution strategy in place following the Nissan’s avoidance of the stinger.
Detective Mansell had already began decelerating when he saw the Nissan drive onto the gravel verge to overtake the car as he considered that action to be
dangerous.
Both detectives witnessed the crash and Detective Sutton immediately advised the POC that ambulance and fire brigade services were urgently required, Detective Mansell pulled over to the side of Great Eastern Highway and both
detectives attended the crash scene to assist the Nissan’s occupants.
Although he was wearing a seatbelt, Child JP died at the scene. Given the speed of
the Nissan when it crashed and the extent of Child JP’s injuries, it was most likely he died on impact. Child JP was later certified life extinct by an attending paramedic.?! The two passengers in the Nissan received serious injuries. Child JP’s girlfriend was airlifted by helicopter to hospital and the other passenger remained trapped in the Nissan for some hours before being extricated by emergency
services.
20 The vertical roof support pillar located in a car's midsection, 21 Exhibit 1, Volume 1, Tab 4, Life Extinct Certification dated 8 February 2018
Cause of death ”
‘57
Dr Clive Cooke, a forensic pathologist, conducted a post mortem examination on
Child JP’s body on 13 February 2018.
That examination showed that Child JP had sustained severe and widespread injuries. He had fractures to his skull and fractures to his spine at the top of his neck and in his lumbar region. There were also fractures to his ribs, pelvis and both legs.
There was also bruising with some lacerations to parts of Child JP’s brain, lungs,
heart, liver, spleen and urinary bladder.
Toxicological analysis of Child JP’s post mortem blood samples detected tetrahydrocannabinol at a level of 17 ug/L, which was consistent with recent cannabis use. Paracetamol, pseudoephedrine and chlorpheniramine were also detected at levels consistent with Child JP having taken medication for the flu he
had at the time.” No alcohol or other drugs were detected.
At the conclusion of his examination, Dr Cooke was of the view that Child JP had
died from multiple injuries.
I accept and adopt the conclusion expressed by the forensic pathologist that the
cause of Child JP’s death was multiple injuries.
Manner of death
Shortly prior to the crash, Child JP’s girlfriend had been talking to a friend of Child JP (the friend) on a mobile phone that belonged to Child JP. Just before the
2 Exhibit 1, Volume 1, Tab 7, Post Mortem Report of Child JP by Dr Clive Cooke dated 13 February 2018; Exhibit 1, Volume 1, Tab 8, Toxicology Report for Child JP dated 28 March 2018 23 Exhibit 1, Volume 1, Tab 69, WAPF Victimology Information Form, p.4
friend heard the sound of the crash through his mobile phone, he heard Child JP’s
girlfriend say, “Bub, look out for the pole.”
A scaled plan of the crash scene displayed as an aerial view (the plan) was prepared by a police officer from the WAPF Forensic Surveying Unit.” The plan shows the tyre marks of the Nissan as it drove on the right-hand side gravel verge and then the direction of the Nissan as it veered across the two east bound lanes of Great Eastern Highway and crashed into the two trees on the left-hand side gravel verge.
The plan also depicts the location of a broken guide post on the right-hand side gravel verge that was in the path of the Nissan as it drove along the gravel verge.
Following the crash, red marks similar to the paint colour of the Nissan were visible on the side of the guide post facing the direction of the Nissan.”° Just after the
broken guide post, the tyre marks of the Nissan begin to veer left onto the road.?7
In addition, the plan shows a larger diamond-shaped road sign on the gravel verge with a pictorial representation of a left-hand curve of a road with an intersection ahead.8 Below the sign is a smaller rectangular sign with the words “Brooking Rd”.
This road sign is about 55 metres further east from the guide post. The tyre marks from the Nissan as it re-enters Great Eastern Highway is about 30 metres from this
road sign.?’ A car travelling at 120 km per hour will cover the distance of 30 metres
24 Exhibit 1, Volume 1, Tab 16, Statement of Child JP’s friend dated 23 February 2018 25 Exhibit 1, Volume 1, Tab 44, Statement of Senior Constable Corey Dibello dated 13 March 2018; Exhibit 1, Volume 1,
‘Tab 61
, Scaled Plan prepared by Senior Constable Dibello
26 See photographs marked PJW_ 8441 and PIW_8442 taken of the crash scene by Senior Constable Paul Woolsey,
Major Crash Investigation Section, on & February 2018
27 Exhibit 1, Volume 1, Tab 65, Preliminary Crash Investigation Form 07.17 dated 19 February 2018, Photo 6 described
as “75
m west of final resting location looking east’. As this photograph was taken on 19 February 2018, the broken
guide post seems to have been repaired. See also photograph marked PJW_8438 taken of the crash scene by Senior
Constal
ble Paul Woolsey, Major Crash Investigation Section, on 8 February 2018.
28 Exhibit 1, Volume 1, Tab 61, Scaled Plan prepared by Senior Constable Dibello 29 Byhibit 1, Volume 1, Tab 65, Preliminary Crash Investigation Form 07.17 dated 19 February 2018, Photo 9 described
as “30
m west of final resting location looking east”; Exhibit 1, Volume 1, Tab 61, Scaled Plan prepared by Senior
Constable Dibello
in less than one second. It was this road sign that the driver of the overtaken car
surmised was the reason why the Nissan suddenly turned left back onto the road.’?
T find that Child JP undertook a dangerous overtaking manoeuvre of another car, at a speed well in excess of the posted speed limit of 80 km per hour, by driving onto the right-hand side gravel verge of Great Eastern Highway, just before the intersection of Brooking Road in Hovea. He did so in order to evade GM411, which was still actively and visibly pursing him at the time he made that manoeuvre. I also find that just after overtaking the other car, Child JP made a sudden turn to the left to get back onto the road from the gravel verge. it would seem his reason for making that very risky manoeuvre was to avoid hitting either the guide post or the road sign (or both) that were on the gravel verge. As he got back onto the road, Child JP lost control of the Nissan, and it crashed into two trees that were on the
other side of the road. Child JP was fatally injured in the crash.
Accordingly, I find that Child JP’s death occurred by way of accident.
As already referred to, Child JP had tetrahydrocannabinol in his post mortem blood samples at a level of 17 ug/L. The report prepared by Detective Wallace from the Major Crash Investigation Section concluded that the crash, “occurred as a result of speed, drug impairment and driving inexperience.”"! During his evidence at the inquest, Detective Wallace clarified that his conclusion drug impairment was a contributing factor to the crash was due to reports he had read in other investigations that said a level of tetrahydrocannabinol of 17 ug/L was above the
equivalent of a blood alcohol level for DUI (driving under the influence).
3945 23.2.21 (Smoothy), p.93 31 Rxhibit 1, Volume 1, Tab 9, Report of Detective Senior Constable Wallace dated 1 May 2018, p.12 32 tg 12.4,21 (Wallace), p.353
A physician in clinical pharmacology and toxicology did not prepare a report with
respect to the level of tetrahydrocannabinol found in Child JP’s system.”?
Iam awate from evidence provided by expert witnesses in other coronial matters as to the adverse effects of cannabis intoxication. I am able to find from this evidence that cannabis intoxication can manifest itself in a number of ways. These include impaired judgement, impaired capacity for understanding and thinking out situations (impaired cognitive capacity) and loss of natural caution and self-restraint. With respect to a report prepared for another inquest where the tetrahydrocannabinol levels were 8.8 ug/L and 18 ug/L. in two adolescents similar
in age to Child JP, Professor David Joyce stated,** The impairments of judgement, self-restraint and cognitive function are most relevant to a cannabis user's decision to participate in an imprudent activity. Impairments to coordination, speed of response and cognitive function degrade performance in any activity that requires coordinated, focussed, and appropriate physical activity in response to a challenge.
I am of the view that these observations would have application to Child JP’s decision to drive the Nissan in a dangerous manner to avoid police and also to potentially affect his ability to drive the car. A tetrahydrocannabinol level of
17 ug/L would suggest that cannabis intoxication was most likely to have had some
effect on Child JP during the time of the three evade police incidents.
Accordingly, I am able to find that the effect of the cannabis that Child JP had consumed was very likely to have influenced his decision not to stop for police.
However, I do note that there did not appear to be any significant impairment to his coordination. I have formed that view given his manner of driving. The only time Child JP lost control of the Nissan during the three evade police incidents was when
he was faced with the one, or potentially more, unanticipated obstacles that were
33 ts 124.21 (Wallace), p.353 34 Inquest into the deaths of Master Simpson and Master Drage, |2021] WACOR 36, p.42
in his path as he overtook a car just before the crash. Prior to that, his ability to drive the Nissan in the manner he did so did not suggest any impairment. I note Child JP’s driving as observed by the detectives involved in the final evade police
incident did not, in their opinions, suggest he was affected by drugs.*°
For those reasons, I find that the most notable contributions to Child JP’s death was his motivation to avoid apprehension by police and the excessive speeds he drove
and dangerous manoeuvres he undertook to achieve that objective.
If police officers try to pull over a car driven by a member of the public and the driver fails to stop, the matter becomes an evade police incident. Only appropriately qualified police officers, in specified police cars, are able to participate in an evade police incident. The three drivers involved in the evade police incidents with the Nissan were all appropriately qualified drivers and were all driving the specified
police cars for intercept driving.
The conduct of police officers involved in an evade police incident is governed by the Policy. The relevant version of the Policy for this matter was dated
30 November 2016.*
Once an evade police incident occurs, the decision-making of the individual police officers involved extends to include specially trained staff at the POC. These staff, with oversight from the POCCC, coordinate the police response, which includes
the organising of additional resources to assist in resolving the incident if required.
33 ts 24,2.21 (Mansell), p.221; ts 12.4.21 (Sutton), p.317 36 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines
In retaining the oversight function of an evade police incident, the POCCC can
instruct that it be terminated at any stage.
The Policy sets out a range of factors that impact upon the ongoing risk assessment which must be taken into account by police involved in the evade police incident, including the POCCC, These factors govern the decision by police to engage in the
incident and continue for the entire period of the driving.
Once a matter becomes an evade police incident, the Policy specifies the conditions
‘0 be et, The providing of ongoing situation reports during an evade police incident is of critical importance. As explained by Inspector Mick Hayes:*7
The reason for communicating that outside the vehicle is to take away that subjectivity [and] to have a person who’s not intimately engaged in the vehicle at the time. Normal human response is your adrenaline levels will be elevated, you become tunnel visioned in situations of high risk. So talking to POCCC, the VKI duty inspector, and have a third party review that’s part of then a consistent risk assessment, not just purely as subjective as | [the driver] might be a daredevil; my partner might be. But that’s also why everybody involved in it has the capacity to call it to an end or cease it or terminate it.
The existence of the Policy and the requirement for an ongoing risk assessment is
so that police officers, “conduct ourselves in a manner which doesn’t put anybody
else at any greater risk than is required to achieve an outcome”.*®
The primary consideration for this inquest was to determine if the response by police to the manner in which Child JP drove the Nissan on 8 February 2018 was
appropriate and in accordance with the Policy.
37 ts 13.4.21 (Hayes), p.479 38 ts 13.4.21 (Hayes), p.479
The first evade police incident
82 Iam satisfied that Officers Evans and Sheridan complied with the Policy at all
relevant times in their dealings with the Nissan.
s3 The length of time from Officer Sheridan’s first communication over VKI to the time when the instruction from POC to terminate the evade police incident was just
over four minutes.*?
s4 Officer Sheridan provided an appropriate initial situation report, which enabled the POCCC to properly consider the risk assessment before authorising GL101 to engage in a priority pursuit. Thereafter, Officer Sheridan’s updates were timely, including the critical information that Child JP had commenced driving the Nissan on the incorrect side of the road. The dashcam footage from a nearby car confirmed that Officer Evans’ driving of GL101 at this time was in a manner that complied
with the Policy and with the instructions from the POC.”
ss The speeds of GL101 provided by Officer Sheridan to the POC through VKI were consistent with the speeds of GL101 recorded on the Automated Resource Locator (ARL)*! data for that police car.” None of the speeds recorded exceeded the speed
cap set out in the Policy.
39 Exhibit 1, Volume 1, Tab 11, AU Report dated 23 April 2020, p.11
4° Exhibit 1, Volume 1, Tab 18, Dash cam footage from the car driven by Vance De Jager; Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018
41 Also known as “AVL”, for the balance of the finding 1 will refer to this data as “AVL data”.
#2 Exhibit 1, Volume 1, Tab 68, AVL Data dated 8 February 2018
The second evade police incident
The duration of this evade police incident by GE120 from the time that Officer Maher notified POC via VKI that they had sighted the Nissan, to when Officer
Ruffell advised the Nissan had hit the side of another car, was about one minute.
An examination of the VKI recordings regarding the situation report provided by Officer Maher indicated he had not conveyed sufficient information to ensure
compliance with the Policy.“ However, there were explanations for this.
First, GE120 was only involved with the Nissan for a very short period of time.
Secondly, Officer Maher was a probationary constable, and was only three months into his 12-month probationary period at the time.’ Thirdly, this was the first evade
police incident he had been involved in.”
In those circumstances, I am satisfied there are reasonable explanations for Officer Maher not providing some of the details required by the Policy when he
gave his situation report via VKI.
The relevant AVL data extract for GE120 indicated that Officer Ruffell drove GE120 at speeds underneath the cap imposed by the Policy.”
1 am therefore satisfied that Officers Ruffell and Maher adequately complied with the provisions of the Policy during the short period they were involved with the Nissan. Their actions in terminating the evade police incident on their own volition, following the Nissan’s contact with the other car at the intersection of Reid
Highway and Great Northern Highway, was appropriate.
3 Ryhibit 1, Volume 1, Tab 11, [AU Report dated 23 April 2020, pp. 19-20
44 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018; Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.836
45 ts 232.21 (Maher), p.67
46 ts 23.2.21 (Maher), p.71
47 Tixhibit 1, Volume 1, Tab 68, AVL Data dated 8. February 2018
Alleged ramming of the Nissan by GE1I20
92 In her statement to police, Child JP’s girlfriend alleged that GE120 rammed the rear driver’s side of the Nissan when it was stationary at the intersection of Reid Highway and Great Northern Highway.” In contrast, the two police officers in GE120 maintained that the only contact involving the two cats occurred when Officer Maher open the front passenger door of GE120, “causing it to hit near the
right rear quarter panel of the Pulsar”.
93 Based on the evidence before me, I am satisfied that the two cars only made slight contact and did so in the manner described by the two police officers. A subsequent examination of GE120 showed only small scrape-like damage to the edge of the front passenger door. The colour of this scrape was very similar to the red colour of the Nissan and was entirely consistent with the transference of paint from the Nissan following minor contact with the door, rather than a “ram” as described by
Child JP’s girlfriend.°
94 I am prepared to accept that the noise made by this contact may have given
Child JP’s girlfriend the impression that it was more forceful than it actually was.
The suspected driver of the Nissan was not Child JP
9s Ag already referred to, during the first evade police incident, the POC had advised over VKI that the Nissan was believed to be driven by a 31-year-old man who was
wanted for questioning. This was at about 5.35pm.>!
96 This man was wanted for two matters at the time; a stealing matter, which was an
apparent shoplifting, and a family violence matter. These matters were alleged to
48 Exhibit 1, Volume 1, Tab 14, Statement of Child JP’s girlfriend dated 22 February 2018, p.3
49 Exhibit 1, Volume 1, Tab 42, Memorandum of Constable Maher dated 27 February 2018, p.2; see also Exhibit 1, Volume 1, Tab 41, Memorandum of First Class Constable Ruffell dated 27 February 2018, p.2
50 Exhibit 1, Volume 1, Tab 62, Photographs of GE120 numbered 1-7
51 Exhibit 1, Volume 1, Tab 11, IAU Report dated 23 April 2020, p.11
have taken place in January 2018 and were still active as at 8 F ebruary 2018.°" The man was later charged for the stealing matter, arid although he was arrested for the more serious family violence matter,’ he was not charged. The text of the Police Incident Report regarding the family violence matter linked the man to the
possession of the Nissan.
The alert category for this man was graded “Very High”. Of course, he was not the driver of the Nissan on 8 February 2018, nor was he even a passenger. The question arises as to whether those police officers involved in the evade police incidents ought to have been aware that the driver of the Nissan was not the much
older male who was wanted for questioning.
During the first evade police incident, Officer Sheridan advised the POC that the driver of the Nissan “looks like a young male driver.”°* The IMS” alert for the Nissan that was available on the computer screen in GL101 had the date of birth details for the suspected driver.** Officer Evans agreed that the actual driver of the
Nissan did not look to be aged in his early thirties.”
Of all the police officers involved in the three evade police incidents, Officer Maher had the best opportunity to determine Child JP’s age during the second evade police incident. Although Officer Maher did not think Child JP looked like a child, he did say that he appeared to be “around 18°. Officer Maher however, did not update VKI as to his assessment of the age of the Nissan driver.®! His explanation for
failing to do so was because of the duties he had to perform after the Nissan drove
52 Tixhibit 1, Volume 1, Tab 11, [AU Report dated 23 April 2020, pp.9-10
33 Which allegedly involved the man threatening his partner to get into his car and take her from her home.
31 This was because the complainant refused to provide a statement and the man made no admissions to-police: Exhibit 1, Volume 1, Tab 11, IAU Report dated 23 April 2020, p.9
55 Exhibit 1, Volume 1, Tab 11, IAU Report dated 23 April 2020, p.9
56 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, p.2
57 Integrated Management System :
58 Exhibit 1, Volume 1, Tab 11, [AU Report dated 23 April 2020, p.9; ts 23.2.21 (Evans), p.17
59 ts 23.2.21 (Evans), p.15
60 ts 23.2.21 (Maher), p.78
§} ts 23.2.21 (Maher), p.78
away, including negotiating traffic around the car that the Nissan had damaged.
However, he agreed that, with the benefit of hindsight, he should have informed the POC shortly after completing those duties that the Nissan driver appeared to
around 18 years old.
Given the contents of the Policy,” I find that Officer Maher should have advised the POC of his estimate of Child JP’s age. It was relevant information regarding the ongoing risk assessments should another evade police incident occur. However, I am satisfied of his explanations for his failure to do so. I also take into account
his relative inexperience at the time.
Even though Child JP was only 16 years old, I also make no criticism of Officer Maher’s estimate of Child JP as being “around 18”. Child JP had a moustache, which I find did make him look older than 16.° His height (174 cm) and weight
(85 kg) may also have given the impression he was older than he actually was.®
As to the final evade police incident, I accept that neither Detective Mansell nor Detective Sutton had the opportunity to make a visual assessment of Child JP’s age during the incident. I also accept they did not hear Officer Sheridan’s description that Child JP “looks like a young male driver” ®’ In those circumstances, I accept that Detective Mansell and Detective Sutton were entitled to assume that there was
a likelihood the driver of the Nissan was the man wanted for questioning.
Detective Mansell also recalled that the alert for the suspect driver of the Nissan
referred to weapons, which he believed included firearms. Detective Mansell’s
& ts 23.2.21 (Maher), pp.78-79
63 ts 23,2.21 (Maher), p.85
64 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832 and p.837
§5 Exhibit 12B, Photograph of Child JP taken on 7 February 2018.
66 These measurements were taken at Child JP’s post mortem examination: Exhibit 1, Volume 1, 'Tab 7, Post Mortem Report of Child JP by Dr Clive Cooke, dated 13 February 2018, p.2
67 Exhibit 1, Volume 1, ‘Tab 13, Transcript of Police Communications dated 8 February 2019, p.2
68 ts 24.2.21 (Mansell), p.130; Exhibit 1, Volume 1, Tab 32, Statement of Detective Sergeant Mansell, dated 19 February 2018, p.2
recollection is correct in that regard as the suspected driver did have an entry on the IMS alert screen (that was created on 5 January 2018) advising that this individual “was in possession of a pistol on 8 February 2016 and believed to be in
possession of another pistol.”®
104 At the inquest, Detective Mansell agreed that the information regarding the firearms and the domestic violence matters persuaded him to become involved as, “they appeared to be on the face of it quite serious offences.” Detective Mansell then volunteered that this information, “definitely had a bearing on the whole situation for sure.’™ When he was later asked whether the high alert on the suspected driver was in the forefront of his mind, Detective Mansell answered,
“It was a big consideration, yes.””
105 I am therefore able to find that, at about 5.40 pm, Detective Mansell left the administrative duties he was performing at Midland Detectives Office with the mindset of becoming involved in the apprehension of a man wanted for at least one serious offence, who was failing to stop for police. That is the most likely explanation for the way in which Detective Mansell and his partner, Detective Sutton, subsequently behaved during the final evade police incident. They were to become relentless in their pursuit, not of a man with a police alert listed as “very high”, but of a 16-year-old boy who was too scared to stop because he did not have a driver’s licence and did not want a car he and his girlfriend had just purchased to
be impounded.”
69 Exhibit 1, Volume 1, Tab 11, [AU Report dated 23 April 2018, p.10
1 ts 24.2.21 (Mansell), p.132
ts 24.2.21 (Mansell), p. 229
3 Exhibit 1, Volume 1, Tab 14, Statement of Child JP’s girlfriend dated 22 February 2018, pp. 8-9
Did GM411 require authorisation before engaging in the final evade police incident?
106 The question arose at the inquest whether Detective Mansell and Detective Sutton were required to obtain authorisation from the POCCC before they engaged in their evade police intercept driving. Inspector Hayes was of the view that authorisation
was required before GM411 engaged with the Nissan.”
107 On the other hand, Inspector Kirby, who was the POCCC on 8 February 2018, was
of the view that authorisation was not required.”
108 The wording of the relevant provision of the Policy at the time was somewhat
ambiguous.”
o
9 That provision was amended in April 2019 so that it now more accurately captures
the intent of the Policy with respect to this particular matter.””
to Accordingly, I do not find that it was inappropriate for Detective Mansell and
=
Detective Sutton to commence their engagement of the Nissan without
authorisation from the POCCC,
The obligations of Officer Baker
ui In his evidence at the inquest, Inspector Hayes noted that Officer Baker did not transmit over VKI what had occurred when the Nissan avoided the stinger and/or that it was his view the risk was so high that the pursuit by GM411 ought to be terminated.” Inspector Hayes also noted that this communication could have been
dispatched quickly by Officer Baker by using his personal two-way radio, without
having to return to his parked police car.”
74 Exhibit 10, Memorandum of Inspector Hayes dated 24 February 2021, p.3
7 Statement of Inspector Robert Kirby dated 2 July 2021, pp.2-3
76 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, TR-07.04.2.4 at n, p.837 7 Rxhibit 10, Memorandum of Inspector Hayes, p.3
7 ts 13.4.21 (Hayes), p.496
® ts 13.4.21 (Hayes), p.497
Notwithstanding Inspector Hayes’ observations, I am not prepared to criticise Officer Baker’s failure to transmit his observations and/or opinion on whether the involvement of GM411 ought to be terminated. As Inspector Hayes acknowledged, Officer Baker had to tend to the two cars that had their tyres delated by the stinger
moments after the Nissan had avoided it.®°
Officer Baker was also entitled to assume that the POC would have received appropriate situation reports by the passenger in GM411, including the latest manoeuvre by the Nissan around the stinger. Indeed, when asked whether he reported the driving of the Nissan to VKI, Officer Baker stated that he did not,
“because it was in an evade situation, it was already reported.”*!
Regrettably, for the reasons I have outlined below, and through no fault of Officer
Baker, that seemingly safe assumption turned out to be a very unsafe one to make.
What to consider when making a risk assessment
I accept that there will inevitably be dangerous elements in regard to the driving of a person who has failed to stop and to the driving of any police car involved in a subsequent evade police incident. I also accept that the drivers of police cars in an evade police incident, depending on the circumstances, are not prohibited from taking actions such as contravening a red traffic light, driving on the incorrect side
of the road or exceeding the posted speed limit.**
Furthermore, I understand that the risk assessment made by police officers involved
in an evade police incident is always ongoing and fluid, in that it may easily change
80 ts 13,4.21 (Hayes), p.497 81 ts 23,2.21 (Baker), p.107 ®2 ts 23,2.21 (Ruffell), p.64
from being safe to maintain the pursuit to being a situation where it is entirely unsafe to continue the pursuit. I also accept that due to their subjective nature, a
risk assessment by one police officer may be different from another’s.
However, any potential dangers arising from the subjective nature of risk assessments ate safeguarded by police officers not directly involved in the incident having the authority to terminate the pursuit at any time; most notably the POCCC.
However, that safeguard can be ineffective if the situation reports to the POC are
delayed, deficient or lacking in relevant detail.
As arisk assessment is always a dynamic situation, each manner of driving by the pursued car should never be looked at in isolation when making the risk assessment.
After noting that the risk assessments by Detective Mansell and Detective Sutton seemed to focus on individual aspects of Child JP’s driving, Inspector Hayes
stated:*?
The risk assessment is an ongoing accumulation of all incidents that fill the picture of driver behaviour, and likelihood — if a stinger is employed — what he’s going to do, the driver. So if you add together all the little bits and pieces, this paints a picture of a driver who was intent on, at all costs, avoiding police. So the risk then starts to elevate, because then we can’t control what he’s going to do.
Yes. And specifically, he’s doing everything to avoid the vehicle that’s pursuing him?
--- Correct. And there’s an antecedent there from the initiating pursuit and the second incident that shows a propensity not to stop no matter what is in front of him, including
parked cars.
Although the Policy sets out the factors police officers must consider in determining if the risk is acceptable,®* Inspector Hayes correctly summarised it as being, “a basic risk assessment which we do every day as humans; that is, likely 2985
consequences for a particular action and what that outcome is likely to be.
Examined in this way, the Policy as it relates to risk assessments is not a particularly
83 ts 13.4.21 (Hayes). p.484 84 Exhibit 1, Volume [, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832 85 ts 13.4.21 (Hayes), p.478
difficult concept to grasp. Nor should it be for police officers who are trained to
always undertake a risk assessment whenever they perform operational duties.
120 It should also not be difficult for experienced police officers to understand that just | because no one has been injured, or no cars have been hit by a person who is objectively engaged in hazardous driving, it does not mean there is a low risk of
causing potential harm to someone if that manner of driving was to continue.*®
121 Evaluating the risk assessment during an evade police incident should never be measured by “good luck”. As Inspector Hayes accurately put it, “I don’t believe in
good luck, your Honour, I am not in the business of good luck, Good luck is
something you can’t rely on. You need to have observational skills.”*7
12 Regrettably, Detective Sutton felt he was very much in the business of good luck when it came to his evaluation of the risk assessment during the final evade police incident. That was clearly evident in his answers to these questions | asked him:* So again then, using that last example of pedestrians, was it more good luck that no
pedestrian came into danger during that manoeuvre [of the Nissan] through the Caltex service station? --- | would say that all pursuits that don’t end badly is good luck.
Yes. So there’s a manoeuvre through the Caltex service station that had the potential to put a pedestrian at risk, i.e., someone using the service station. But am | right in saying that you formed the view that because — by good fortune — there was no pedestrian in harm’s way, as it were, that the pursuit could therefore continue? --- Yes.
And that forms part of the risk assessment.
But — I’m just exploring this a little bit further, if that’s okay, Detective? --- Yes, of
course.
But that’s only by good luck there hasn’t been an injury to a pedestrian? --- That’s right; you’ re exactly right.
% ts 12.4.21 (Wallace), p.343 87 ts 13.4.21 (Hayes), p.493 : 58 ts 12.4.21 (Sutton), pp.28 1-282
So the next time a potentially dangerous manoeuvre was to occur, were you relying on good luck for there to be no potential danger to another road user? --- Yes. If — if you want to put it like that, then yes.
Yes. Is that the appropriate way of applying the guidelines? --- That’s — that’s just the way that the whole thing unfolds in every single — every single one of them.
Detective, the question is, is that the appropriate way of applying the guidelines? --- Yes, It’s the way that the risk — that | apply the risk assessment and that most other police officers apply the risk assessment.
123 Those answers were extremely troubling to hear.
124 Incontrast, Detective Mansell agreed that a police officer should not assess whether a situation was dangerous or not by the outcome, but rather on what could happen when the situation is entered into.®’ He went on to say, “that is generally the way we do risk assessments.”°° Unfortunately, the evidence at the inquest does not support the contention that this textbook answer was the way he and Detective
Sutton approached the risk assessment during the pursuit of the Nissan by GM411.
Were risks assessments undertaken by the detectives during the final evade police incident?
vs Both detectives maintained in their evidence at the inquest that they undertook risk assessments throughout their pursuit of the Nissan. As to what they discussed about their assessments of the risk during the pursuit, Detective Mansell could not recall specifically, other than “just comments about how it was surprising how calm and controlled the driver was being.”®' Although Detective Sutton testified that whether a pursuit should be terminated was “something that’s always considered’,” he could not remember discussing with Detective Mansell, at any
stage, if the pursuit should be terminated.” When it was suggested that could mean
89 ts 24.2.21 (Mansell), p.213
90 ts 24,2.21 (Mansell), p.214
91 ts 24,2.21 (Mansell), p.183; see also Exhibit 1, Volume 1, Tab 32, Statement of Detective Sergeant Mansell dated 19 February 2019, p.5
22 t3 25,2.21 (Sutton), p.257
93 ts 25,2,21 (Sutton), p.257
a termination was not even considered, Detective Sutton answered, “Well, I can’t
speculate what happened in the car three years ago.””"
In light of this testimony, Mr Berson, counsel for the WAPF, properly accepted that there was no evidence the two detectives had any discussions amongst themselves regarding a termination of the pursuit.” It would appear that if either detective did actually consider terminating the pursuit, it was done privately,
without collaboration and then kept to himself.
I regard the lack of evidence that there were discussions between the detectives about terminating the pursuit somewhat concerning. One would have expected that, given the manner of Child JP’s driving, it would have, at the very least, been raised as an option by one of the detectives. This then leads to the question of whether the
two detectives did actually undertake ongoing risk assessments.
Applying the Briginshaw principle, and in the absence of direct evidence to the contrary, I am not prepared to find that the two detectives failed to conduct ongoing risk assessments during the final evade police incident. However, whether their risk assessments that led them to continue the pursuit were made in accordance with the
Policy is an entirely different matter.
Should GM411 have voluntarily terminated after the Nissan’s manner of driving at the Caltex forecourt and on Farrall Road, Midvale?
Approximately three minutes into the evade police incident involving GM411, Child JP deployed the first of a number of dangerous manoeuvres during this particular incident. As noted already, they began when he drove the Nissan through
the Caltex forecourt and then turned right onto the incorrect side of Farrall Road,
"4 ts 25.2.21 (Sutton), p.257 %5 ts 14,4,21 (Closing Submissions by Mr Berson), p.562
before turning left back onto Great Eastern Highway, contrary to a red traffic light.
Detective Mansell drove GM411 in exactly the same manner.
The signed statements to the Major Crash Investigation Unit from the two detectives regarding this part of the final evade police incident were conspicuous by the absence of the relevant facts needed to determine whether they complied
with the Policy.
Detective Mansell’s statement read:*
The Pulsar turned left onto Great Eastern Highway, indicated to turn left into Farrell [sic] Road, Midvale before moving into the left-hand slip lane then into a driveway of
the Caltex service station.°7
The Pulsar immediately came back out onto Great Eastern Highway and continued in an Easterly direction.
Detective Sutton’s statement read:
The red Nissan continued along Great Eastern Highway, before indicating left and entering the driveway of Caltex, Midvale.
The vehicle exited the driveway, turned right onto Farrell [sic] Road and left back onto the Great Eastern Highway.
Neither statement referred to the driving on the incorrect side of Farrall Road by both cars, or the driving back onto Great Eastern Highway by the two cars contrary to a red traffic light. CCTV footage from the Caltex service station and from a Bridgestone outlet on Farrall Road clearly show the two cars driving on the incorrect side of Farrall Road and also contravening the red traffic light as both cars
turned left onto Great Eastern Highway.
Detective Mansell admitted that his statement with respect to this part of the evade
police incident was “missing some significant details”.°” He further stated that until
96 Exhibit 1, Volume 1, Tab 32, Statement of Detective Sergeant Mansell dated 19 February 2019, pp.4-5
97 At the commencement of his evidence at the inquest, Detective Sergeant Mansell clarified that the Nissan did not actually move into the left-hand slip lane before entering the Caltex forecourt: ts 24.2.21 (Mansell), p.127
98 Exhibit 1, Volume 1, Tab 33, Statement of Detective Senior Constable Sutton dated 21 February 2018, p.9
°° ts 24.2.21 (Mansell), p.165
he saw the CCTV footage the week before he gave evidence at the inquest, he had
not actually recollected that he had driven onto Farrall Road on the incorrect side.'°
As to why his statement did not refer to the Nissan and GM411 contravening a red traffic light, Detective Mansell answered, “I didn’t actually think about the red light when I wrote my statement. I don’t even recall necessarily looking at the lights.”!°! When pressed as to why this fact was omitted, Detective Mansell answered, “J guess I didn’t consider it a pertinent factor at the time of writing the
statement,” |
Detective Sutton’s explanation for not referring to the contravention of the red traffic light in his statement was that he did not remember seeing what colour the
traffic lights were at the time.'™
Detective Sutton agreed that it was merely coincidental that the statements both he and Detective Mansell provided had said nothing about the Nissan and GM411 driving on the incorrect side of Farrall Road and then going through a red traffic light onto Great Eastern Highway.’ Without any direct evidence to suggest otherwise and having to acknowledge that coincidences can occur, I am obliged to
accept that explanation.
The fact that Detective Mansell could not recall that he even looked at the traffic lights facing him as he entered onto Great Eastern Highway from Farrall Road and that Detective Sutton “just didn ’t notice if”! provides just one of several examples of the cavalier approach these two very experienced police officers took in their
attempted intercept of the Nissan.
109 ts 24.2.21 (Mansell), p. 166 101 ts 24.2.21 (Mansell), p. 167 102 ts 24.2.21 (Mansell), p.168 103 ts 24.2.21 (Sutton), p.232 104 ts 24.2.21 (Sutton), p.248 195 ts 24.2,21 (Sutton), p.246
139 Another example of this cavalier approach was the following explanation from
Detective Mansell regarding the driving of the Nissan on the incorrect side of
Farrall Road:!%
So in —in this situation where it has occurred in a two-second sort of timeframe and - and like | said, it wasn’t really considered by myself as a contraflow of the traffic because there wasn’t traffic in that lane. It was more of a entering an intersection ata strange place, at — at an angle sort of thing from the corner.
Po Detective Mansell completed a Pursuit Return for
the evade police incident on 13 February 2018.18 Detective Sutton approved its
contents the following day.1”
Just like his statement, Detective Mansell’s Pursuit Return does not accurately describe what occurred at the Caltex forecourt or at the intersection of Farrall Road
and Great Eastern Highway. The relevant portion of the Pursuit Return read:'!° The [Nissan] then indicated to turn left into Farrell [sic] Road slip lane and moved into that lane. It then turned into a carpark behind the Caltex service station briefly before returning to Great Eastern Highway and continuing in an Easterly direction up the hill.
Neither detective considered that the driving of the Nissan at the Caltex forecourt or on Farrall Road required their attempted evade police intercept to be terminated.
Detective Mansell’s explanation for continuing the pursuit after the Nissan drove onto Great Eastern Highway against the red traffic light was, “J didn’t feel it was unsafe.”""' Detective Sutton did not agree with the proposition that the Nissan’s manner of driving through the Caltex forecourt and back onto Great Eastern
Highway “at that stage presented an unacceptable risk to the public, yourselves or
196 ts 24.2,21 (Mansell), p.210
107 Bxhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.839 108 Exhibit 5, Pursuit Return completed by Detective Sergeant Mansell, p.4
109 Exhibit 5, Pursuit Return completed by Detective Sergeant Mansell, p.5
{19 Exhibit 5, Pursuit Return completed by Detective Sergeant Mansell, p.2
11 ts 24.2,21 (Mansell), p.172
to Child JP.”""? Unfortunately for these two detectives, the relevant CCTV footage paints a very different picture, as does the opinions of four police officers with
vastly different ranks and experiences.
Contrary to the statements from the two detectives, the Nissan did not indicate as it turned into the Caltex forecourt.'° The CCTV footage also clearly shows the Nissan travelling at an unsafe speed through the Caltex forecourt. Data from the AVL for GM411 suggests that the speed may have been in-the vicinity of 32 km per hour.!/4 However, the number of cars and pedestrians in the forecourt area rendered that speed as clearly unsafe. There was a near miss involving the Nissan and a silver car exiting the forecourt to turn left onto Great Eastern Highway. A potential T-boning incident was avoided when the silver car was able to move
further forward and out of the potential path of the Nissan.'!>
Although the CCTV footage does not show any other near misses, what the footage does show is that traffic on Great Eastern Highway and Farrall Road was busy.
That was hardly surprising, as it was a week day at about 5.45 pm and involved one
of the major thoroughfares in the area.
Officer Evans, the driver of the police car involved in the first evade police incident, was very clear as to his views on what a pursuing police car should do when the
target car starts driving on the incorrect side of the road.
Regarding his risk assessment when Child JP began driving the Nissan on the
incorrect side of Marshall Road, Officer Evans was asked:!!6
So you were going to stop, no matter what instruction [from the POCCC] you got? --- No matter what. There’s no way | was ever contemplating continuing chasing that
vehicle.
12 ts 24,2.21 (Sutton), p.245
13 Exhibit 1, Volume 1, CCTV footage from Caltex service station, Midvale, Channel 18
14 Exhibit 1, Volume 1, Tab 68, AVL Data for GM411 dated 8 February 2018
15 Exhibit 1, Volume 1, CCTV footage from Caltex service station, Midvale, Channels 19 23 16 ts 232.23 (Evans), pp.26 and 28
Down the wrong side of the road? --- No way.
Would you normally expect the passenger to know things like, if they [the target car] go on the wrong side of the road, that’s an automatic terminate? --- Yes. Yes. It’s fairly well-known within WA Police.
147 As to his opinion when there ought to have been a voluntary termination of the
evade police incident involving GM411 at this stage, Inspector Hayes stated, “the
forecourt was an unacceptable risk; it should have stopped there.”'""
148 The two police officers performing the role of POCCC during the final evade police incident shared similar views to Inspector Hayes. Officer Jones stated:!*
If a SITREP*!° describing the target vehicle’s manner of driving in the vicinity of Farrell [sic] Road, namely driving through the Caltex forecourt, | would very likely have terminated the evade police incident.
Similarly, if a SITREP describing the target vehicle’s contra flow on Farrell [sic] Road and the entry onto Great Eastern Highway against the traffic control light was provided, | would have terminated the evade police incident.
Although the driving of the target vehicle and GM411 through the Caltex forecourt, contra flow onto Farrell [sic] Road and through the intersection on Great Eastern Highway, did not of itself appear to be dangerous, there is an inherent risk in the
circumstance.
Further, my view that | would have terminated the evade police incident at that point in time is influenced by the two previous incidents involving the target vehicle, particularly the incident where the target vehicle engaged in contra flow driving earlier. This might indicate that contra-flow driving is a tactic that the driver Is prepared to engage in to stop police chasing him.
149 Inspector Kirby expressed this view:'*°
f information had been communicated that GM411 was travelling through a Caltex forecourt in pursuit of the vehicle, | would not necessarily have terminated the pursuit.
f the SITREP was that the vehicle was travelling 10 km/hour through the forecourt
U7 ts 13.4,21 (Hayes), p.48
8 Statement of Senior Sergeant Stephen Jones dated 9 July 2021, pp.4-5 19 Situation report
29 Statement of Inspector Robert Kirby dated 2 July 2021, p.3
| i i i i
(and no indication that the target vehicle was heading towards the bowsers), | would probably not terminate the evade police intercept driving incident.
If the SITREP was the same, but the speed through the forecourt was 30 km/hour then | may well have terminated the evade police intercept driving incident. Before doing so, | would have tried to get more information and cannot say with any certainty - whether | would have, in fact, terminated the evade police intercept driving incident.
If | had been informed that the vehicle was turning right up the wrong side of Farrell [sic] Road and towards a red light, | would have terminated the incident. However, this would be based on a ‘big picture’ view of the incident based on those general facts, and without having the advantage of sitting in the police vehicle and seeing events exactly as they unfold. In coming to that view, | would also have taken into account the two previous incidents, particularly the contra-flow driving in the first incident.
This is because, in my view, two instances of contra-flow driving indicate a repetitious and conscious act by thé driver of the target vehicle which creates an unacceptable risk to the driver of the target vehicle, passengers in the target vehicle, police, other road users and the community in general.
150 After careful consideration of all the available evidence,!! and applying the Briginshaw principle, I find (albeit by the merest of margins) that it was not inappropriate for GM411 to continue its pursuit of the Nissan through the Caltex forecourt. However, once the Nissan had driven onto the incorrect side of Farrall Road and then made a left hand turn onto a major thoroughfare against a red light during a peak traffic period, a proper risk assessment that complied with the Policy ought to have meant the pursuit should have been voluntarily terminated immediately.’?? In making that finding, I have accepted the evidence of Inspector Hayes, Inspector Kirby, Officer Jones and Officer Evans and rejected the evidence of Detective Mansell and Detective Sutton. Although I am prepared to accept that
the two detectives personally believed it was safe to continue their pursuit at this
121 This included consideration of the statement from an eye-witness who described GM411 at this time of the evade police incident as “being driven in a very controlled manner” and that it never appeared to put any pressure on the driver of the Nissan “fo do anything silly”: Exhibit 1, Volumel, Tab 23, Statement of Bernard Rowles dated 17 February 2018, p.3. However, this witness makes no reference in his statement to the Nissan driving on the incorrect side of Farrall Road or contravening the red traffic light as it turned onto Great Eastern Highway.
122 The relevant provision of the Policy reads,
Exhibit 1, Volume 1, ‘Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832
stage, that belief was clearly an unreasonable one given the objective facts and the
contents of the Policy.
It will be noted that Officer Jones and Inspector Kirby based their opinions on the premise that certain information was conveyed to the POC regarding the Nissan’s manner of driving at the Caltex forecourt and on Farrall Road. Their opinions were sought on that hypothetical basis as Detective Sutton’s situation report to POC did not contain some information that Inspector Hayes described as being “critical and
vital to decision-making.” '*? I will address that issue now.
Was Detective Sutton’s initial situation report adequate?
It is obvious why the initial situational report in an evade police incident must be accurate and convey all relevant information to the POC. The passenger in the police car responsible for these situational reports becomes ‘the eyes and ears’ of the POCCC. Although the POCCC has a live feed of the AVL speed data for police car's involved in evade police incidents,” this does not provide a complete picture.
Given that evade police intercept driving is of the highest risk, “There's a greater emphasis on the driver and the passenger to conduct that in a suitable manner, and also a far greater requirement to report to POCCC what is going on at the time
and how,”!5
As Inspector Hayes further testified, “the system is very reliant on timely, accurate information from the passenger of the vehicle.”'*° Regrettably, such information was not forthcoming ftom Detective Sutton regarding the driving by the Nissan
through the Caltex forecourt and on Farral! Road.
3 ts 13.4.21 (Hayes), p.480 {4 (3 134.21 (Hayes), p.479 15 1s 13,4.21 (Hayes), p.477 8 ts 134.21 (Hayes), p.482
1s4 After advising the POC that GM411 had activated its lights and sirens and the
Nissan was heading towards Great Eastern Highway after failing to stop, the following conversation took place between Detective Sutton and the POC
operator:27
POC Operator: Golf Mike 411, your class and quals, please.
Sutton: Class 1 vehicle. Priority pursuit driver. 9339. Just approaching the intersection of Great Eastern. He’s going to make a left turn, left turn towards the hills on Great
Eastern Highway.
POC Operator: Roger, roger. And traffic conditions?
Sutton: We’ve got medium traffic. He’s sitting in the middle lane at the moment. The driver appear appears very calm and controlled. He’s still heading towards the hills and about to turn onto Farrall Road.
POC Operator: Golf Mike 411. Just for the inspector, reason we are attempting to stop him?
Sutton: | believe this is the car that was wanted for the alert, wasn’t it?
POC Operator: Affirmative.
Sutton: Yeah. Roger. We’re still heading up the hill on the Great Eastern. Current speed is 80 kilometres an hour. We’re in the right lane. He’s still driving very casual.
POC Operator: Golf Mike 411 is an evade police approved,
155 accept Detective Sutton’s evidence that his description to the POC that the Nissan
is “about to turn onto Farrall Road’ was at the time of the Nissan’s lane change on Great Eastern Highway in order to enter the Caltex forecourt.'** I also accept that this lane change from the middle lane to the left hand Jane would have given the impression the Nissan was about to enter into the left hand slip lane onto Farrall
Road that was a short distance beyond the entrance to the Caltex forecourt.
At the inquest, Detective Sutton was asked the following questions regarding his
above conversation to the POC:”? |
You’re sparse on the details there to VKI. Would you agree with that? --- Yes, | would.
127 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, pp.7-8 18 ts 242.21 (Sutton), p.242 129 tg 24,2.21 (Sutton), pp.242-244
Would you have had the opportunity of providing more detail? --- Do you mean at the time?
Yes, at the time? --- Had | not been getting asked questions and answering questions, then, yes, that information would have been provided.
He [the POC operator] hasn't been told that the car has gone off Great Eastern Highway through a Caltex Service Station narrowly missing a car? --- Yes.
Driving at a speed that — faster than was expected, coming out onto Farrall Road on the incorrect side of the road and going through a red light. | know your evidence now is that you didn’t know you had gone through a red light, but you had known about the other information. So should it not have been important to convey that information to POC? --- At the time it would have been important.
But it wasn’t conveyed to it? --- No, because | was answering other questions.
With the benefit of hindsight, should you have told POC about the fact that it [the Nissan] had veered off and driven through a service station at a speed that was quicker than it should have ---? --- Yes, that would have been information that --
Yes, and had gone against the traffic flow, against contra lane onto Farrall Road and then through a red light? --- Yes, that would have been information that would have
been provided.
And are you saying you did not have the opportunity to provide that further information? --- Because | was answering those other questions.
You agree with me it paints an incomplete picture of what's taking place? --- It completes a portion of a picture.
Yes. And it’s missing some significant details? --- Yes, but like | said before, he [the POCCC] could have just aborted us because we were chasing the wrong car. He still needs to confirm that that was the vehicle and the reason as to why we were stopping it and the reason that he was going to allow the pursuit to continue — sorry, to authorise the pursuit.
187 I do not accept that Detective Sutton did not have the opportunity to provide
information that was clearly critical to the question of whether the POCCC was
going to authorise the pursuit.
At the time of Detective Sutton’s last communication to the POC, that is quoted
above, less than 30 seconds had passed since the Nissan’s driving through the
Caltex forecourt and onto Farrall Road and then the contravention of the red traffic light. There was nothing preventing Detective Sutton from providing that information after he had answered the one question from the POC operator
regarding the reason for attempting to stop the Nissan.
The description of the Nissan’s manner of driving by Detective Sutton paints an even more misleading picture of how the Nissan was being driven. Included in the information being conveyed to the POC was that the driver of the Nissan “appears very calm and controlled” and that “he’s still driving very casual.” Following that last description, the POC operator advised that approval had been given for GM411
to continue the evade police intercept.
When Inspector Hayes was asked whether the POC was provided with enough information by Detective Sutton to conduct a proper risk assessment, and to determine whether the level of risk was acceptable, he answered, “no, they weren't
provided enough information is the simple answer”.° | agree with that assessment.
As Inspector Hayes further explained:'?!
A situation developed — in this case driving through a forecourt, [driving] contrary to the traffic flow, [driving] through a red light. It’s irrelevant whether you can say it then, or 30 seconds later. It’s as simple as pressing the button and saying, “We've just done this”; give the guy the opportunity — the duty inspector the opportunity to say yes or no to continuing the pursuit.
Okay. And you think that would have been important in this situation for that? --- Critically important.
Critically, Because POC may have aborted at that stage? --- If | was fulfilling that role as a duty inspector, | certainly would have aborted it.
Lam satisfied, after considering all the evidence relevant to this matter and applying the standard required in the Briginshaw principle, that Detective Sutton failed in
his obligations to provide an initial situation report to the POC that was adequate
{30 ts 13.4.21 (Hayes), p.482 131 ts 13.4.21 (Hayes), p.482
and that complied with the Policy. He failed to provide critical information to the POCCC, most notably the driving of the Nissan on the incorrect side of Farrall Road. If that piece of information had been provided, it would have inevitably led to the POCCC not authorising the police evade intercept as the POCCC would then have been made aware of two instances of the Nissan driving on the incorrect side
of the road.
16s In making this finding, I have noted the seven details listed in the Policy'??
I $s 20% or exavstive ist
and it is therefore logical that information which is critical to the risk assessment that the POCCC is required to make should always be included in the initial
situation report.
164 Applying the Briginshaw principle, I am not satisfied Detective Sutton deliberately withheld this information from the POC.
Should GM411 have voluntarily terminated between Midvale and Hovea because of
the Nissan’s excessive speed?
165 From the AVL data of GM411 and the situation reports given to the POC by Detective Sutton, the speeds of the two cars varied between about 80 km per hour to about 140 km per hour, on Great Eastern Highway after Farrall Road and before
the location of the stinger.!*°
132 Statement of Inspector Kirby dated 2 July 2021, p.4
133 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832
134 This information is required in all subsequent situation reports: Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832
135 Exhibit 1, Volume 1, Tab 12, TR-07,04 Emergency Driving Policy and Guidelines, p.832
136 Exhibit 1, Volume 1, Tab 68 AVL Data for GM411 dated 8 February 2018; Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, pp.8-10
As Thave already referred to, a Multanova camera on Great Eastern Highway, near Park Road in Hovea registered the Nissan as travelling at 128 km per hour. It also registered that GM411 was driving close behind, at a speed of 127 km per hour.'*7 For the next minute, the AVL data for GM411 showed it was travelling (with one exception) in excess of 130 km per hour, before it slowed down to go around the stinger. The posted speed limit was 80 km per hour. I find that the Nissan was
travelling at similar speeds during this period."
This evidence has caused me some disquiet. However, there is no evidence before me that the Nissan was overtaking cars in an unsafe manner along this stretch of Great Eastern Highway. Officer Baker observed the Nissan overtake some cars and other than it travelling “considerably quicker” than those cars, he did not observe any “bad driving” by the Nissan before it reached the stinger.'*? I also note that one portion of Detective Sutton’s situation report during this period stated, “Vehicle has chopped and changed lanes a couple of times, but nothing that’s inherently
dangerous.”'*°
In addition, arrangements had been made for a stinger to be deployed across the east bound lanes of Great Eastern Highway a short distance ahead, near the intersection of Bailey Road.!*! In those circumstances, and not without some hesitation, I do not find that the Nissan's excessive speed alone during this period of the evade police incident required a voluntary termination by GM411 in accordance with the Policy. However, this speed had to be taken into account when
evaluating the ongoing risk assessment. Given that they failed to voluntarily
137 Exhibit 1, Volume 1, Tab 64, Deployment Verification Deployment Details and Incident Image
138 There is a statement from another road user who witnessed the driving of the Nissan and GM41 | before and after the location of the Multanova camera: Exhibit 1, Volume 1, tab 21, Statement of David Dubbelboer dated 12 February 2018.
Although this witness described the manner of both cars as “almost benign’, I have noted the estimates he gave of the speeds of the Nissan and GM411 are considerably lower than the speeds recorded by the AVL data for GM411 and the speeds recorded by the Multanova camera.
139 ts 23.2.21 (Baker), pp.98-99
140 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, p.9
141 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, p.9
terminate their pursuit until it was too late, it is clear to me that Detective Mansell and Detective Sutton did not place sufficient weight to this aspect of Child JP’s driving when undertaking their ongoing risk assessments as to whether it was safe
to continue their pursuit.
Should GM411 have voluntarily terminated after the Nissan’s avoidance of the
stinger?
As already outlined above, the Nissan was able to avoid the stinger by driving onto the right-hand side gravel verge of Great Eastern Highway. It did so at a speed estimated by Officer Baker of about 70-80 km per hour and drove within about one metre of his police car parked on the verge. Detective Mansell drove GM411 around the stinger in similar manner and, relying on the AVL.data for GM411, at
a similar speed to the Nissan."
Officer Baker agreed that the manner of driving by the Nissan to avoid the stinger was dangerous, saying, “it was dangerous because there was the stinger, the car —
other cars, going at — speeding, hitting the gravel, yes.”\”
Detective Mansell said it was “possible” that the Nissan was travelling at about 70-80 km per hour on the gravei as it went around the stinger,'* but he did not think the Nissan’s manoeuvre around the stinger was dangerous, stating “it wasn’t
erratic or dangerous”
Detective Mansell did not agree that the driving of the Nissan around the stinger
was “dangerous enough to abort at that point” as “it was still controlled
driving” 6
142 Exhibit 1, Volume 1, Tab 68, AVL Data for GM411 dated 8 February 2018, p.11, entry for GM411’s speed at 5:54:05 pm (86 km per hour)
143 tg 23,2.21 (Baker), p.105
144 tg 24,2.21 (Mansell), p.93
145 tg 24,2.21 (Mansell), p.93
M6 ts 24,2.21 (Mansell), p.193
» 175
After agreeing (i) that the manoeuvre around the stinger by the Nissan was an important consideration to take into account as to whether the pursuit should
continue and (ii) that he did factor this into his risk assessment at the time, Detective
Mansell was of the view:!4”
{t wasn’t significantly dangerous and it didn’t change my assessment at that point. We had gone from | think — I think we were just saying we that had gone from about 135 to 140 sort of kilometres [per hour], down to 70 or 80, if that was what it was. So again, he — there was some control and restraint in that manoeuvre that | felt didn’t change
my risk assessment.
Detective Mansell nevertheless agreed that the manner in which the Nissan drove
around the stinger “was still a very risky manoeuvre.”
Detective Sutton also did not initially agree with Officer Baker’s assessment that
the manoeuvre around the stinger was dangerous.” He instead described the
manoeuvre as “risky but controlled.”'*° When asked in what way the driving of the Nissan around the stringer was controlled, Detective Sutton answered, “Well, we also entered the gravel and successfully navigated, and the driver has done the —
exactly the same thing”.°! Detective Sutton was of the view that the manner of .
driving around the stinger did not place the occupants of the Nissan, or other road users, or other police, or other people at a risk high enough to abort the pursuit at that point in time.!*? However, he did agree that the level of danger inherent in the manner of Child JP’s driving had now increased as a result of the manoeuvre
around the stinger.!*
By this stage of the evade police incident, Officer Jones was the acting POCCC,
That was because Inspector Kirby was required to attend to a serious life-
147 ts 242.21 (Mansell), pp.194-195 148 ts 24.2.21 (Mansell), p.228
143 ts 25.2.121 (Sutton), p.254
150 ts 12.4,21 (Sutton), p.276
151 tg 12.4,21 (Sutton), p.276
152 ts 12.4,21 (Sutton), p.280
153 ts 25,2,.21 (Sutton), p.256
threatening incident.!*4 In his capacity as the acting POCCC, Officer Jones had already made the decision that he would terminate the evade police incident if the
stinger was not effective:!°
| had already made a conscious decision that if the stinger was not effective, | would terminate the evade police incident [so] as to not allow it to proceed to the Mundaring town site.
Although | had made the decision at that point in time, there is necessarily a delay between me giving the instruction, and the instruction being issued across the radio.
There is the initial delay that results from the dispatcher repeating my instructions to
the vehicle in the evade police incident.
179 Nevertheless, Detective Mansell gave these answers to questions at the inques
had been avoided at 5:54:03 pm. The decision by Officer Jones to terminate was not transmitted until over half a minute later, at 5:54:37 pm.'*¢ By then the crash
had either just occurred or was actively occurring.
When Inspector Hayes was asked for his view as to whether the manoeuvre around the stinger was a sufficient basis for GM411 to voluntarily terminate, he
answered: !°7
From my personal point of view, yes. | wasn’t there to see the [sic - it] live. And ifit is what is described, a near miss of a police vehicle .., if a vehicle’s wheels are predominantly on the gravel, it’s not going to end well. So to answer your question,
personally, | would have aborted.
And if [there was] correct adherence to the policy and guidelines, was there more than sufficient reason for these two police officers to terminate the chase or the pursuit? - -~- | think with the — the accumulation of all the incidents, without a doubt.
And confining it to the accumulation of incidents involving this particular vehicle [i.e. GM411], do you still maintain that view? --- Yes.
12158
It just appears to be an accumulation of incidents up until this point in time, in which he has driven on the incorrect side of the road at Farrall Road, gone through the red
154 Statement of Inspector Kirby dated 2 July 2021, pp. 1-2
155 Statement of Senior Sergeant Jones dated 9 July 2021, pp.5-6
156 Exhibit 1, Volume 1, Tab 11, IAU Report dated 23 April 2020, p.31 157 ts 13.4.21 (ayes), pp.498-499
138 ts 24.2.21 (Mansell), p.198
light at Great Eastern Highway, driven at speeds, as I’ve said to you before, 50 kilometres in excess of the speed limit, or thereabouts ... doesn’t it reach a point where your pursuit of that vehicle is not really achieving the end result, namely, the interception of the car? --- It certainly can reach that point.
Yes? --- But | don’t believe we had reached that point. Not within - between myself and Detective Sutton we hadn't reached that decision.
130 Detective Sutton was asked a similar question as to whether the requirement of the
ongoing risk assessment entitled GM411 to pursue the Nissan after it avoided the
stinger: ©?
Up until the manoeuvre through the Caltex Service Station, travelling on the wrong side of Farrall Road, contravening the red light on Great Eastern Highway and going at speeds, it would seem judging by the speeds of your vehicle, well in excess of 40 ilometres of the posted speed limit on Great Eastern Highway and then that manoeuvre. [With] the culmination of those factors you still maintain the view that you could continue that pursuit in accordance with the guidelines? --- Based on my
previous experience I’ve had, yes.
181 Detective Sutton was also asked the following question:'®°
... would you agree with me that a risky manoeuvre, whilst it may be controlled, there’s a higher prospect of it becoming uncontrolled? --- Yes.
182 I find that Detective Mansell and Detective Sutton abjectly failed to apply that basic concept to their risk assessment of Child JP’s driving once he had driven through the Caltex forecourt. If a manner of driving is controlled, but nevertheless risky, then it only requires a minor event which is unanticipated by the driver to render it extremely dangerous. Such a circumstance could have been an inattentive person at the Caltex forecourt or a sign post on the gravel verge near the stinger or a guide post or road sign on the gravel verge where the Nissan made its last overtaking manoeuvre. It was only a matter of good fortune that neither of the first two
scenatios occurred when the Nissan drove through the Caltex forecourt and later
59 ts 12.4.21 (Sutton), pp.279-280 169 ts [2.4.22 (Sutton), p.277
drove around the stinger at excessive speeds. However, the third scenario did
eventuate with the catastrophic fatal outcome that followed.
The failure by these two detectives to identify the potential for Child JP’s “risky but controlled’ driving to suddenly become uncontrolled due to an unanticipated event was illustrated by Detective Mansell’s evidence regarding the final overtaking by the Nissan which he saw: “And even — even to the point of being in the gravel, he was still straight. It wasn’t until there was a sudden veering to the
left. And I don’t know what that was from, but it struck me as odd.”"®!
That a detective with over 20 years’ experience as a police officer and eight years’ experience as a qualified Priority Pursuit driver (as at 2018) would think it was “odd” that there would be potential obstacles in the path of a car driving at speed
on the gravel verge of a major highway is extremely concerning.
Applying the Briginshaw principle, and considering all available evidence, | find that had Detective Mansell and Detective Sutton complied with the Policy, their pursuit of the Nissan should have been voluntarily terminated as soon as it avoided the stinger. a Pt Instead, and even though there was no other resolution strategy in place, Detective Sutton was requesting permission to exceed the speed that GM411 was authorised to drive at! That simply demonstrated the poor judgement and lack of insight to potential outcomes, being exhibited by these two detectives in their risk assessment of Child JP’s driving.
Their explanation for requesting that permission was so that they could catch up
with the Nissan.'* With respect to the pursuit of a car being driven in a very risky
161 ts 24,2.21 (Mansell), p.206
1 Exhibit 1, Volume 1, Tab 12, 'R-07.04 Emergency Driving Policy and Guidelines, p.832
163 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, p.10 164 ts 24.2,21 (Mansell), p.196; ts 12.4.21 (Sutton), p.296
manner, that was clearly refusing to stop and with no immediate resolution strategy
in place, the logical purpose that could possibly serve escapes me entirely.
186 Detective Sutton was asked the following questions:!
But was it obvious to you once the stinger was evaded that the driver of this vehicle was not going to stop for you? --- | think that that determination would have been made a long time ago.
Yes. So it was highly unlikely that you were able to have him voluntarily pull over by
the side of the road, yes? --- Yes. True, Yes,
Yes. So the identity of the target had already been known, albeit it wasn’t the driver of the vehicle, but the identity was known, and we [sic - you] had the vehicle registration details. Yes? --- Yes. ,
So the prospect of that target being apprehended at a later date by police must have been regarded as reasonable? --- Yes, it would have been reasonable. Yes.
188 Detective Sutton was of the opinion that even though there was no further resolution strategy in place, the mere possibility of such a resolution caused him to form the view that it was reasonable to continue the evade police incident.'®” For the reasons J have outlined above, I do not agree that this reasoning process entitled the detectives to continue with the evade police incident and still be in compliance
with the Policy.
1s9 Although I am prepared to accept that the two detectives personally believed it was
safe to continue their police evade intercept after the Nissan avoided the stinger,
165 ts [2.4.21 (Sutton), p.288
166 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832
The target who the detectives suspected to be the driver of the Nissan was the 31-year-old man wanted for questioning 467 ts 12,4,21 (Sutton), p.290
that belief was cleatly an unreasonable one given the objective facts and the
contents of the Policy.
Was Detective Sutton’s situation report after the avoidance of the stinger adequate?
1909 The only information Detective Sutton provided to the POC regarding the manoeuvre around the stinger by the Nissan was, “he avoided the stinger VKI. So we're still heading towards Mundaring, right lane. Current speed is 1 40." The question that arises is whether that conveyed all information required by the Policy
to the POC.
191 With respect to that, Detective Sutton was asked the following:'”
Do you accept with the benefit of hindsight that you ought to have provided more information regarding the manoeuvre around the stinger other than, yes, he avoided the stinger? --- We don’t normally provide any more than that. It’s probably beneficial in hindsight to provide more information. But normally, that’s just - we don’t give out any more than that kind of information.
Not even if it was a dangerous manoeuvre? --- No, it’s just an avoidance of the stinger.
Every stinger avoidance is dangerous because they usually cover the entire road.
Yes, but in this instance here, he could have just gone around it onto the gravel at a very safe speed. But he hasn’t because you — you've agreed that it was a dangerous manoeuvre that he was travelling too quickly on the gravel, and that you must have seen that he came within close proximity of a police car? --- Sure.
So in those circumstances, it’s a bit different to him slowing right down and just driving around the stinger at an appropriate speed, yes? --- Yes, but no one ever does that.
Once again, !’m sorry, | have to go back to the — back to the experience of the stinger covers the entire road, People have to go onto the verge to avoid them.
So you want the duty inspector to, what, make what inference from that description? --- Well, it’s an extra pair of eyes in the — in the car, isn’t it, and then he can also assess the risk.
But wouldn't the assessment of the risk be assisted if he was told he has avoided the stinger, he’s just nearly hit a parked police car, he’s travelling way too fast through the
gravel? --- Yes.
‘68 Exhibit 1, Volume 1, Tab 13, Transcript of Police Communications dated 8 February 2018, p.10 169 ts 12.4.21 (Sutton), pp.292-293
And again, hypothetically — and that’s hypothetically — but if that information was conveyed to the duty inspector, would you have been at all surprised if you were told there and then to terminate? --- Yes, it would not surprise me.
192 In light of those answers, and upon applying the Briginshaw principle, I find that
it was incumbent upon Detective Sutton to provide more details than he did in his situation report regarding the avoidance of the stinger by the Nissan. P| BE Detective Sutton should have therefore advised the POC that the Nissan
had been driven very close to a parked police car (if he had seen this) and that the
driver had travelled at an excessive speed through the gravel.
There is no evidence before me that Detective Sutton would not have been able to convey that additional information. There was no issue with the VKI communications, the POC operator was not asking him any questions and there
were not any other police officers interrupting his communications with the POC.
Instead, Detective Sutton sought permission for GM411 to exceed the speed cap set by the Policy after it had avoided the stinger in order to catch up to the Nissan.
This request simply reinforces my view that the detectives were simply not complying with the Policy, [iii ee ee
HE hse pursuit by G41 had demonstrably failed by this stage
and the two detectives had no hope of effectively managing the risk associated with
the Nissan’s dangerous driving once it had driven through the gravel at a very
170: Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.837 17 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832
_ dangerous speed and continued to speed excessively after it had been driven back
onto Great Eastern Highway.
The overtaking of Ms Hin’s car by the Nissan 19s After the Nissan had driven around the stinger, Child JP performed a particularly
dangerous overtaking manoeuvre of a car being driven by Ms Brittany Hin and a
second car. Ms Hin described it as:!”
| was driving in the right lane around 80 km per hour. There was another car in the left lane, it was a little ahead of me.
Suddenly a little red car came up on my passenger side and was very close to my car.
It was going pretty fast. It then squeezed through the narrow gap between my car and
the car in the left lane.
196 At my request, Ms Hin provided a second statement which clarified that this
manoeuvre did take place after the location where the stinger had been set. In that
statement, she also added the following:'”
The little red car was so close to mine that if my gran who was sat in the passenger seat had opened her window she could have reached out and touched it.
197 Ms Hin’s grandmother was Ms Janice Rhodes. She described the Nissan’s
overtaking manoeuvre as:!”4
This red car was so close to us on my left | could have reached out and touched it.
didn’t see who was in the car or how many.
The red car squeezed through a gap between our car and one in front of us in the left
ane.
t was a tight gap.
tos In asecond statement which I had requested, Ms Rhodes provided these details:'”°
The red car suddenly appeared at my side approximately 20 to 30 seconds after we passed [where] the police officer carrying a stinger stood.
1” Exhibit 1, Volume 1, Tab 24, Statement of Brittany Hin dated 22 February 2018, p.1 13 Exhibit 13, Statement of Brittany Hin dated 23 March 2021, p.1
14 Exhibit 1, Volume 1, Tab 26, Statement of Janice Rhodes dated 22 Febmary 2018, p.1 1% Exhibit 13, Statement of Janice Rhodes dated 23 March 2021, pp.1-2
| got such a fright that | shouted out a swear word.
The red car was so close that if | wound down my window | could have easily reached
out and touched it.
Neither detective recalled seeing this manoeuvre. At the site inspection on 8 April 2021, I drove east along Great Rastern Highway between Bailey Road (which was near to where the stinger was placed) and Brooking Road. As the site inspection notes by Counsel Assisting recorded:!”
It was observed that there were at least two spots between the stinger and the crash site where you could lose sight of vehicles that were ahead.
There is a bend in the road not long after where the stinger was situated.
The road dips down around Marri Road.
Accordingly, | am prepared to accept that the two detectives may not have seen the Nissan overtake the car being driven by Ms Hin. However, I was deeply disturbed
by the answers given when both detectives were asked what they would have done
if they had recalled seeing this overtaking manoeuvre. The relevant portions of the .
first statements of Ms Hin and Ms Rhodes had been read to both detectives, before
the questions that are cited below were asked.
Detective Mansell agreed that the way in which the overtaking manoeuvre had been described “sounds dangerous”! But he then gave the following answers to my
questions:!”8
But now I’m asking you about it, if in fact it happened in that way, with this vehicle going 80 kilometres [per hour], another one going far in excess of that, passing them unexpectedly, so close to them that this lady says that she could reach out and touch the car as it passed. It’s so obviously dangerous, isn’t it? --- No.
No? --- No.
It’s clearly a dangerous manoeuvre by the driver of the Nissan? --- Well, as | said before, if —if a car travelled that sort of distance apart, | don’t think that’s ~ | don’t
16 Exhibit 6, Site Inspection Notes, p.1 177 ts 24.2,21 (Mansell), p.204 £78 ts 24.2,21 (Mansell), pp.205-207
think it’s dangerous. It’s — that’s almost what — the distance between a car would be if you’re overtaking in the next lane.
She’s saying if she just reached out like that,1”? she could have touched it. All right?
--- Entirely possible.
And if they’re going 80 and this other car is going a speed of around 130, then that
clearly is a dangerous manoeuvre, is it not? --- | don’t know if it was doing 130 at that
No. I’m asking you hypothetically again? --- If it was, certainly. It could be dangerous.
It could be.
So, Detective, if you had seen a manoeuvre by the driver of the Nissan in the way that has been described by those two witnesses, right, at a point just before the crash, if you had seen that, you would not have regarded that as too high a risk assessment to terminate your pursuit? —~- No. Like | was saying before, we probably moved within that distance of vehicles up the hill.
if you had seen that, you still would have continued your pursuit? --- Overtaking a car within a metre.
Within arm’s length. If the passenger - - -? --- Yes, | would have continued.
--- could reach out and touch it? --- Yes.
And then in the entire context of the driving that you had observed up until that point in time, that would not have changed your assessment of the risk involved so much that you would terminate your pursuit? --- No. If nothing else, the rest of the driving had been calm and controlled, so no.
202 Detective Sutton was asked the following:*°
So had you seen that manoeuvre would the assessment of the risk change at all? --- No, | don’t think so.
No? --- No.
Even if, in fact, this had happened within a very short time after the dangerous manoeuvre, to use your words, you had agreed, to avoid the stinger, this has happened, it would seem, within a kilometre of that manoeuvre: a car driving well | above the speed limit overtaking a car in that manner? -- Mmm.
That wouldn’t have altered your risk assessment of the situation? --- No, because | was making my risk assessments the entire time.
1 ¥ then demonstrated with my arm outstretched, 180 ts 12,4.21 (Sutton), pp.299-300
Yes. So if you had seen that manoeuvre --- ? --- Well, I’m not saying that | did not see this, like, ’'m looking at the broad picture of everything that’s happening. So it’s not just this one car, there’s a large — well, not a large quantity, but there’s other cars on the road that are getting viewed for their potential risk. Sidewalks, animals, everything gets taken into account, not just this one particular car. ,
No. But in light of the culmination of events and the dangerous manoeuvres that you had observed this pursued vehicle make, even if you had seen that manoeuvre, that wouldn’t have altered your assessment of the risks involved in pursuing this car? --- Well, no, because | had never saw a car passing within that distance there.
No, no, but I’m saying if you did? --- If | did?
Yas? --- Yes.
Yes what? --- Then, yes, the risk assessment would have been reassessed and a consideration for an abort would have been done.
And aconsideration. And would an abort have been made? --- It’s quite possible.
You put it no higher than that? --- That’s hypothetical.
Yes, | know that, but you put it no higher than “it’s quite possible” that you would have
advised Detective Mansell that his pursuit and your pursuit should be aborted? --- Yes.
203 Given the contents of the Policy, I am at a complete loss to understand how either
detective could contemplate continuing their pursuit if they had seen that
Even when taken in combination with the previous driving of the Nissan, the only
concession made by Detective Sutton was that a voluntary termination would have
been “quite possible” |
The overtaking of Ms Smoothy’s car by the Nissan
204 Ms Christine Smoothy, a registered nurse who was able to provide assistance after
the crash, was the driver of the car that Child JP overtook just before the crash.
181 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.832 182 4g [2.4.21 (Sutton), p.300
Aside from making that manoeuvre on the gravel verge, there were striking
similarities between the overtaking of Ms Smoothy’s car and the overtaking of Ms Hin’s car just moments earlier. Ms Smoothy described how the Nissan had appeared “out of nowhere.” Like Ms Rhodes, Ms Smoothie described that she “could have put my hand on it if I had my window down.”"™ She also noted that the Nissan “was just going really fast.”'© The shock she felt at the time was vividly
described by Ms Smoothy at the inquest:!*°
| actually have to say my heart is racing right now thinking about that. It was — it was truly profound. It was not something | actually expected to see on that side of me in the bush. It took my breath away.
You mean the closeness of the vehicle? --- Absolutely, yes.
In his statement to the Major Crash Investigation Section, when describing the manner of driving by the Nissan before it commenced its overtaking of Ms Smoothy’s car, Detective Mansell had said, “up to that point, the driver of the Pulsar had not done any erratic manoeuvres and had driven calmly and in
control,?'87
Just before the overtaking of Ms Smoothy’s car, Detective Sutton described the manner of driving of the Nissan in his statement in almost identical terms, saying “wp to that point, the driver of the Pulsar had not done any erratic manoeuvres and
had driven calmly and in control.”'®8
Neither of those descriptions were an accurate account of the manner in which Child JP had driven the Nissan. These descriptions made in statements shortly after the crash mirrored the situation reports that Detective Sutton had supplied to the
POC as the evade police incident was taking place. As I have already outlined
183 Exhibit 1, Volume 1, Tab 15, Statement of Christine Smoothy dated 8 February 2018, p.5
184 t¢ 23,2.21 (Smoothy), p.92 185 ts 232.21 (Smoothy), p.93 186 tg 23.2.21 (Smoothy), p.92
187 Exhibit 1, Volume 1, Tab 32, Statement of Detective Sergeant Mansell dated 19 February 2018, p.8 188 Exhibit 1, Volume 1, Tab 33, Statement of Detective Senior Constable Sutton dated 21 February 2018, p.37
above, those situation reports failed to describe the risky manner of driving that
Child JP was undertaking during critical parts of the final evade police incident.
A concluding comment
Notwithstanding being shown (through CCTV footage) and told of evidence that clearly demonstrated the risky manner of Child JP’s driving, both detectives maintained in their evidence at the inquest the previous versions they had provided regarding the pursuit. Those versions comprised of their statements to the Major Crash Investigation Section, the version by Detective Sutton in his situation reports and the version by Detective Mansell in his Pursuit Return. In doing so, they did a grave disservice to their credibility. This double-downing, despite cogent evidence to the contrary, was aptly illustrated when Detective Sutton maintained at the inquest that, up until the final overtaking manoeuvre by the Nissan, “the entire time,
the —I didn’t consider any of the driving to be that hazardous.”'®
The central theme in the version of events provided by the two detectives was that Child JP’s driving of the Nissan was at all times, until the overtaking of Ms Smoothy’s car, “calm and controlled’. However, as noted by Inspector Hayes, this failed to convey what was actually happening, and that the description of Child JP’s driving as being controlled just meant there had not been a negative outcome.!” It also meant that the POCCC was unable to conduct an effective risk assessment of the matter as, “He has no information; he doesn’t have a crystal ball.
He can’t see what’s happening in the car; yes, his hands are tied.”!"' | agree
entirely with this assessment by Inspector Hayes.
{89 ts 24.2,21 (Sutton), p.257 199 ts 13.4.21 (Hayes), p.480 191 ts 13.4.21 (Hayes), p.481
Introduction
As Child JP died during an evade police incident, the matter was deemed a critical incident and the subsequent IAU investigation examined the actions of police officers directly involved in the three evade police incidents to determine whether
there had been any non-compliance with the Policy.!”
Although the IAU identified six “subject officers” and named the three drivers and their passengers involved in the three evade police incidents, only three issues were listed at the start of the LAU report as having been investigated. Those three issues were confined to whether the drivers of the police cars involved had breached the Policy.!% Oddly, the provisions of the Policy that had been investigated as being potentially breached were not identified in the report. The outcome of the
investigation was that the three issues were “unfounded”, !*
Although I am relevantly informed by the contents of the IAU report, I am not bound by the IAU findings. It is already clear from my findings regarding the final evade police incident that [ do not accept there had been no breach of the Policy by
Detective Mansell or Detective Sutton.
In fact, for the reasons I have outlined below, the LAU report was deficient ina number of areas. It fell well short of what should be expected of an JAU investigation that concerns a fatality that would become the subject of a mandatory
inquest.
192 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.5 193 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.5 194 Exhibit 1, Volume I, Tab 11, Report of the [AU dated 23 April 2020, p.5
Changing hands
The IAU investigation was initially allocated to Detective Sergeant Chris Boudewyns, who attended the scene on the night of the crash. The file was then passed onto Detective Sergeant Craig Martin (Detective Martin) in about October
Sergeant Ian Zuidema (Detective Zuidema) on 8 April 2020.1"
Detective Zuidema had only joined the IAU in March 2020.'°° Nineteen days before the file was given to him, an Evidentiary Assessment Meeting was held involving five senior ranking detectives within the JIAU, including Detective Martin. As Detective Zuidema explained, an Evidence Assessment Meeting is where, “all the evidence is discussed and decisions are made about which way the investigation will go and whether it will go to report and in which
[sic — this] case, it did.”?”
The Evidentiary Assessment Meeting concluded that, “An analysis of the evidence was presented and deliberated and the outcomes as previously stated were agreed upon.” The “previously stated outcomes” were that the three issues investigated were unfounded. It was therefore not surprising to initially hear Detective Zuidema say at the inquest, “My role in investigative actions was very limited, the file had been completed up to a point when I received it.” He was then asked:'”
Wasn't it the case, Sergeant, that everything had pretty much been done in so far as
whether any allegations had been substantiated or not or anything of the matters that
had to be investigated were substantiated or not? --- Yes, yes.
Notwithstanding the above answers, Detective Zuidema then went on to
emphatically deny that, given the outcome of the Evidentiary Assessment Meeting
195 ts 13,4.21 (Zuidema), p.381 196 ts 13.4,21 (Zuidema), p.378 197 ts 13.4.21 (Zuidema), p.385 198 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.35 199 ts 13.4.21 (Zuidema), p.385
before the file was even allocated to him, his hands were effectively tied.2% He maintained that if he bad identified something that he thought needed further explanation, he would have raised it and he would not have felt uncomfortable about doing that.2°! I harbour some doubts whether that would have been the case, given that the Evidentiary Assessment Meeting included the superintendent in
charge of the IAU and two inspectors attached to the AU.”
When asked whether his investigation could have been more thorough, Detective Zuidema responded, “No, I don’t think so.”? He also did not agree that the overall IAU investigation could have been done a lot better. By maintaining these positions, Detective Zuidema must be included amongst those TAU detectives who are to be held accountable for the contents of the IAU report and the findings from
the [AU investigation.
1 do not take issue with the IAU’s findings regarding its investigation of the police officers involved in the first and second evade police incidents. However, for the reasons I have outlined below, it was patently obvious that those responsible for the IAU investigation failed to undertake obvious investigative procedures and failed to properly analyse evidence regarding their examination of the final evade
police incident.
Failure to interview the two detectives
IAU investigators may interview a police officer the subject of an IAU investigation, even if that police officer does not wish to be interviewed. This investigative tool is described as a compulsory interview. Any answers given in
such an interview are inadmissible with respect to criminal offences. However, they
200 ts 13.4,21 (Zuidema), pp.398-399
201 tg 13.4,21 (Zuidema), p.399
202 Exhibit 1, Volume 1, Tab 11, Report of the IAL dated 23 April 2020, p.35 203 tg 13.4,21 (Zuidema), p.450
204 ts 13.4.21 (Zuidema), p.404
can be used to determine any breaches of WAPF policies. Neither of the two detectives took part in interviews with LAU investigators. Instead, the statements they provided to the Major Crash Investigation Section were used for the purpose
of the IAU investigation.
The problem with that approach was the statements of the two detectives were lacking details that were critical to an analysis of whether any provisions of the
Policy had been breached.
The IAU did have the relevant CCTV footage from the Caltex service station and the Bridgestone outlet. A viewing of this footage ought to have immediately identified the absence of any details in the detectives’ statements regarding the portion of the evade police incident through the Caltex forecourt and in and around the intersection of Farrall Road and Great Eastern Highway. Yet, for some inexplicable reason, Detective Zuidema did not regard the footage as warranting even a mention in the [AU report. When asked why he did not insert a description of the CCTV footage in the report, Detective Zuidema replied, “J assessed the footage at the time of the review and had no issue with the footage ... That didn’t strike me to be an issue and, therefore, I didn’t put it in, [is] the basic
explanation” ?°
The IAU also had access to the VKI recordings. As I have already noted, the situation reports by Detective Sutton did not pass on critical information to the POC. His statement to the Major Crash Investigation Section gave no explanation
as to why he did not provide this information to the POC.
Detective Zuidema was asked the following:?°
With the advantage of hindsight now, and having heard the matters raised during the questioning of Detectives Sutton and Mansell, would you agree that it might well have
205 tg 3.4.21 (Zuidema), p.379 206 ts (3.4.21 (Zuidema), p.399
been appropriate for [AU or whoever was conducting the investigation at the time to clarify matters with them in an interview? --- In hindsight, | - and having sat at the back of the court, and listening to their evidence, I’ve found their evidence enlightening. So, yes, in hindsight, | would say perhaps it would have been appropriate.
It was Detective Zuidema’s experience that police officers are particularly honest in a compulsory interview where their integrity is brought into question,””” After he gave that evidence, I said to Detective Zuidema that this actually supported the contention that there should have been compulsory interviews of the two detectives. Detective Zuidema responded, “I don’t disagree with your Honour.
No.8 Nevertheless, a short time later, he disagreed with the proposition that the
investigation was not thorough because the two detectives were not interviewed.”
It was disconcerting to hear Detective Zuidema contradict himself when giving evidence. Unfortunately, this occurred not infrequently. With respect to this matter of the failure to interview the detectives, there were two occasions when this
happened. The first was when I had the following exchange with Detective
Zuidema:?!
The descriptions given by the two officers in their statements,”"* with respect to the manoeuvre through Caltex station, and then onto Farrall Road and the Great Eastern Highway, did not have some fairly significant details. Would you agree with that? ---
Yes.
And one could readily glean the absence of those significant details, just from viewing the CCTV footage that we’ve played at the inquest? --- Yes.
Now, well ---? --- However we also had the Pursuit Return, which does describe the
manoeuvre through the Caltex, to a certain extent.
207 ts 13.4.21 (Zuidema), p.424 208 ts 13.4.21 (Zuidema), p.425 209 ts 13.4.21 (Zuidema), p.425 219 ts 13.4.21 (Zuidema), p.400 211 These statements were those provided to the Major Crash Investigation Section
222 The Pursuit Return completed by Detective Sergeant Mansell does not describe the manoeuvre through the Caltex service station. The only reference to the Caltex service station was in this sentence: “I? then turned into a car park behind the Caltex service station before briefly returning to Great Eastern Highway and continuing in an Easterly direction up the hil?’: Exhibit 5, Pursuit Return completed by Detective Sergeant Mansell, p.2
Yes. But there were matters there that ought to have been clarified with the two detectives, given the fact that these details were missing from their statements? --- | don’t see it that way. No.
You don’t? --- No.
227 The second exchange concerned the overtaking manoeuvre of Ms Hin’s car by the
Nissan:7!3 Which now comes back to something | have broached with you a number of times already now; this is yet another example of where IAU should have, not could have, but should have interviewed the police officers as to whether they saw that particular manoeuvre, is that fair to say? --- | can’t disagree with that, your Honour, no.
So there’s another deficiency in the investigation with respect to that particular matter, is there not? --- | wouldn’t call it a deficiency.
An oversight? --- No. Because it was — it was discussed in the Evidence Assessment
Meeting. So, no. It’s not an oversight.
No, no. No, no. Was it discussed as to whether these detectives should be interviewed?
--- Not directly.
No? --- But that would only occur if there was an issue identified, in my view.
All right. So do you agree or disagree with me that this was an oversight of the IAU investigation not to interview the police officers regarding whether they had seen this incident? --- No.
No? --- No.
Why not? --- Because it was, as | said, discussed and the decision made was not to -
not to interview them.
Yes. But that might be so. But as | understand your evidence — and correct me if I’m wrong — they ought to have been questioned about whether they saw this incident because that would have had an impact on whether their risk assessment was the correct one? --- It would have beneficial to interview them in relation to the incident,
yes.
Yes. Obviously? --- But it’s not —| wouldn’t say it’s an oversight not to do so.
With everything you’ve heard now during the course of this inquest, do you now accept, with the benefit of hindsight, it was an oversight? --- No.
213 t5 134.21 (Zuidema), pp.446-447
Do you at least accept it should have happened? --- | accept it's beneficial that it would have happened, yes. it would have provided more information.
Do you accept — do you accept that it should have happened? --- No, | don’t.
So it was an oversight that wasn’t particularly significant in your view? --- In my view, it wouldn’t have provided much more information than what was available.
Applying the Briginshaw principle and upon a consideration of all the available evidence relevant to this matter, I find that a proper investigation by the JAU regarding the final evade police incident required the conducting of compulsory interviews with the two detectives. There was a range of questions, in a number of important areas, that required explanations from the two detectives as to why they did not voluntarily terminate their pursuit. This included the driving through the Caltex forecourt by both cars, the driving on the incorrect side of Farrall Road by both cars, the contravention of the red traffic light by both cars as they re-entered Great Eastern Highway, the Nissan’s manner of driving as it evaded the stinger and whether the detectives saw that the driver appeared to be very young”! or saw the dangerous overtaking manoeuvre of Ms Hin’s car. Detective Sutton should have
also been questioned about the lack of relevant information in his situation reports.
Interviews with the detectives could have also elicited what their understanding of the Policy was, whether there were deficiencies in the Policy and whether there
was any evidence of a deliberate decision not to comply with the Policy.”!>
The statements from the two detectives to the Major Crash Investigation Section had no details regarding any of the matters outlined in the above two paragraphs.
These areas needed to be explored for the IAU to be properly satisfied whether there had been any breaches of the Policy by either of the detectives.
24 Which would have been inconsistent with the age of the suspected driver 215 ts 13.4.2 (Hayes), p.500
As Inspector Hayes pointed out, “the compulsive interview is not about attributing blame or finding fault. It’s about getting to the truth of the matter. And that’s why we have compulsive interviews because we need to learn what they were thinking,
why they did it and learn from it.”?"®
For the IAU not to interview the two police officers in the pursuing car that led to a 16-year-old unlicensed driver dying in a horrific high speed crash when attempting to evade that car, suggests an apparent lack of intent to undertake a proper and transparent investigation. Unfortunately, this failure was not the only
example.
Failure to obtain a policy expert’s opinion
A police officer with expertise in the WAPF policy that is relevant to an IAU investigation can be obtained by the LAU if required.?!” However, no policy expert was sought in this investigation to provide their opinion as to whether there had been any breaches of the Policy by the two detectives.”!® Neither of the POCCC on
duty at the relevant time were even spoken to.
This failure meant that Detective Zuidema placed himself in the position of the two detectives in his determination of the appropriateness of their risk assessments and their compliance with the Policy.”!? Although he said he made assumptions based upon his experience as a police officer,”° there is no evidence before me that Detective Zuidema (or any of the other IAU detectives with carriage of the
investigation) had any specialised knowledge of the Policy.
216 ts 13.4.21 (Hayes), p51
217 ts 13.4.21 (Zuidema), p.383 218 ts [3.4.21 (Zuidema), p.383 219 ts 134.21 (Zuidema), p.403 .
220 ts (3.4.21 (Zuidema), p.403
235 Given the evidence from the three policy experts that the inquest heard from,
221 +4 is obvious that the IAU investigation should have obtained a report from a police officer with expertise in the application of the Policy’s provisions. As Inspector Hayes said at the inquest, “if they [the [AU] involved me in the investigation of it, the outcome might have been different as to — like, the investigation would have
been different for a start’ | entirely agree with that observation.
Applying the Briginshaw principle, and upon a consideration of the relevant evidence, I find that a proper investigation by the IAU regarding the final evade police incident required the obtaining of a police expert’s opinion regarding compliance with the Policy by the two detectives. Had that been done, the IAU findings may well have been very different with respect to the final evade police
incident.
The decision not to rely on AVL data
It is evident from the [AU report that very qualified and limited use was made of the AVL data that was available to measure the speeds of GM411 and the two other police cars involved in the earlier evade police incidents. The supposed unreliability of this data was briefly dealt with in the [AU report by stating, “The inaccuracies of speeds provided by the ARI? system have been addressed in
numerous other reports and does not require repeating in this instance... aad
The company that provides the systems for AVL data has stated there can be a difference of up to +/- 2.5 km per hour from the verified recorded speed.” There is also a known issue that readings that do not have a Data Age identified as “2
(Fresh)” should be classed as “unreliable”. Furthermore, “if there is a number of
221 Inspector Hayes, Inspector Kirby and Senior Sergeant Jones
222 ts 13.4.2] (Hayes), p.516
223 That is, AVL
224 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.12 225 Fxhibit 7, ARL Data Verification, p.1
lines with these errors it may indicate a fault with the unit, or that the device is no
longer communicating with satellites.”
The WAPF has a policy relating to what use may be made of AVL data in its
investigations.”?”
Of the 118 recordings of the speeds of GM411 from 5:43:09 pm to 5:59:58 pm on 8 February 2018, only seven readings did not have a Data Age that read “2 (Fresh)”* Accordingly, those seven readings should be regarded as unreliable.
That represented an average of about one out of 17 readings. Notwithstanding that low number, Detective Zuidema regarded the other 111 entries as “possibly unreliable”. He was of the view that that was “a reasonable stance” for him to take.7° Given the other evidence that supported the reliability of these other
readings, I am of the view this stance was entirely unreasonable.
TR-07.16 Automated Vehicle Locator Systems (AVLS) provides:9!
226 Exhibit 7, ARL Data Verification, p.1
227 Exhibit 8, TR-07.16 Automated Vehicle Locator Systems (AVLS)
228 See shaded recordings in Exhibit 9, Version of Data in tab 69 containing AVL data for GM411 223 ts 13.4,21 (Zuidema), p.417
230 ts 13.421 (Zuidema), p.417
231 Exhibit 8, TR-07.16 Automated Vehicle Locator Systems (AVLS), pp.2 and 4
242 The highest speed that the AVL data recorded GM411 travelling at was 151 km per hour. This occurred for two consecutive readings after the stinger had been driven around and very shortly before the crash. Detective Zuidema was of the view there
was insufficient corroboration of those readings to regard them as reliable.”
243 1 do not agree with that conclusion. There was sufficient circumstantial evidence that corroborated and/or verified this speed. There was also direct evidence from
Detective Mansell that supported the accuracy of it.
244 This speed was first recorded 11 seconds after GM411 slowed down to the AVL recorded speed of 86 km per hour (at the AVL timestamp of 5.54.05 pm).”? This would have been at or about the time GM411 drove around the stinger. GM411 then began accelerating to bridge the gap between it and the Nissan. By 5.54.12 pm on its timestamp, AVL data had GM411 travelling at 133 km per hour.™!
245 At 5.54.03 pm (based on the VKI timestamp™), Detective Sutton advised the POC that the Nissan had avoided the stinger. A short time later, he advised that the current speed of GM411 is “740” km per hour. He then sought permission to exceed the speed that GM411 was then authorised to travel at.° At 5.54.16 pm and 5.54.20 pm, the AVL data had the speed of GM411 at 151 km per hour.”” At 5.54.23 pm,
232 ts 13.4.2] (Zuidema), p.423
233 Exhibit 1, Volume 1, Tab 68 AVL Data dated 8 February 2018, p.11
234 Exhibit 1, Volume 1, Tab 68 AVL Data dated 8 February 2018, p.12
235 Although the VKI timestamp and the timestamp from the AVL data are derived from different systems and not guaranteed to be synchronised, “While the tine difference between the two could be expected to be broadly consistent, and in practice typically within two seconds of one another, there have been instances where the differential has been up to 20 seconds. Further, it is not the case that one of the timestamps is necessarily ahead of the other at all times”: Letter from Mr Berson to Counsel Assisting dated 9 July 2021
236 Exhibit 1, Volume 1, Tab 13 Transcript of Police Communications dated 8 February 2018, p.10; Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.31
237 Exhibit 1, Volume 1, Tab 68, AVL Data dated 8 February 2018, p.12
the AVL reading is 133 km per hour.?** That is entirely consistent with GM411
reducing its speed, having caught up to the Nissan.
246 After he was taken through the above, Detective Mansell was asked these
questions:”°
It seems to match up with what Detective Sutton is saying on the VKI communications?
--- Yes,
That just before he asks for an increase in the cap. This is around the time he is seeking that? --- Yes.
And he says that the speed of your vehicle is 140, just a couple of seconds before that reading of 151? --- Yes.
So bear in mind there would seem to be an acceleration by you because you've just gone through the stinger. You need to catch up to him. The reading before that 151 km reading, if you just have a look on the AVL data, you can see is 133. And three seconds before that it’s 115? --- Yes.
Yes. So it doesn’t look like — when you look at all the evidence — like a bizarre aberration with the speed that the AVL is attributing to your vehicle, if you look at all the circumstances? --- Yes.
Yes. But as | understand your evidence, it may well have been the case that you were going at that speed? --- Yes. It is possible. And like you say I’m not sure if that time matches up with the — our accelerating past the stinger, but of course that is entirely possible and that doesn’t necessarily reflect that the Pulsar was going 150. That might just have been what | got up to whilst trying to catch up to him.
247 Notwithstanding the circumstantial evidence as outlined above and Detective Mansell’s concession, Detective Zuidema maintained that more corroboration was required before it could be found that GM411 was travelling at or about 151 km per hour."° He agreed that the corroboration required to satisfy him would be evidence either (i) from one of the detectives in the car saying that he looked at the
speedometer at that precise moment and it read 151 km per hour or (ii) from
dashcam footage within the police car that had a display of the speedometer or (iii)
234 Exhibit 1, Volume 1, Tab 68, AVL Data dated 8 lebruary 2018, p.12 239 ts 24.2.21 (Mansell), p.199 740 ts 13.4.21 (Zuidema), p.427
that the police car had driven through a Multanova camera at or about the same time which recorded a similar speed.2“! That, in my view, places a far too high a
bar on the type of evidence that could be regarded as corroborative.
Inspector Hayes stated that the small number of unreliable readings from the AVL data for GM411 was “quite normal” and that with respect to the other readings “i doesn’t taint them to the point of being unusable.” Of course, had the IAU investigators obtained a report from Inspector Hayes they could have found that
out.
Mt Berson, counsel for the WAPF, correctly noted in his closing submissions that the speeds of GM411 relayed to the POC by Detective Sutton were, “largely consistent with the AVL data for GM41I°2"* The AVL recorded speed of GM411 at about the time it passed the Multanova camera was also consistent with its speed
measured by the camera.
The IAU investigation should never have concluded that the two consecutive AVL readings that GM411 was travelling at 151 km per hour were “unusual readings”,
simply because of the speeds of 133 km per hour that were recorded before and
. after those readings.?* These readings were not unusual at all as they were entirely
consistent with other evidence that actually corroborated their accuracy, namely that it was at the time when GM411 was accelerating heavily to catch up with the
Nissan and then reducing its speed once it had done that.
In my view, this aspect of the IAU investigation regarding the weight it attached to the AVI. data for GM411 lacked a proper analysis of all the evidence that actually
2Al ts 13.4.21 (Zuidema), pp.427-429
242 ts 13.4.21 (Hayes), p.519
243 1s 13.4.21 (Hayes), p.520
244 t¢ 14.4,21 (Closing Submissions by Mr Berson), p.586
245 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.31
corroborated the accuracy of those 111 readings that were not regarded as
“unreliable” due to their Data Age description.
Was the adequacy of Detective Sutton’s initial situation report investigated?
There is nothing in the 35 page IAU report that states it investigated the adequacy of the initial situation report to the POC by Detective Sutton. Although there is a summary of the radio communications with the POC, there is no reference to any analysis of the situation reports from Detective Sutton in the section titled “Investigator’s Analysis — Issue Three” ?” Whatever analysis was carried out for Detective Sutton’s actions is not detailed and the final two sentences in this section simply read: “There are no adverse findings against either Mansell or Sutton for this matter for breaching Emergency Driving Policy TR-07.04. Issue 3 Outcome - Unfounded.”®
Detective Zuidema accepted that the LAU report failed to outline which specific portions of the Policy had been analysed with respect to both detectives. When he was asked whether there was a reason for that, he replied, “No. That’s just the way the report was done.” | sincerely hope this oversight is an aberration and not a
regular feature of [AU reports.
When questioned whether the adequacy of Detective Sutton’s initial situation report was investigated, Detective Zuidema said that it was. He was then asked:?° Where is that in your report, these conclusions? --- Which bit, your Honour?
About Detective Sutton? --- That’s not in there.
Was it investigated? --- Yes.
Then it should be in the report, shouldn’t it? --- As | said before, if | put everything that | investigated in the report, it would be three lever arch files full.
246 Exhibit 1, Volume 1, Tab 11, Report of the [AU dated 23 April 2020, p.31
7 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, pp.33-34 28 Exhibit 1, Volume 1, Tab 11, Report of the IAU dated 23 April 2020, p.34
249 ts 13.4.21 (Zuidema), p.448
250 ts (3.4.21 (Zuidema), pp.430-431
No. But this is a specific investigation regarding whether Detective Sutton comp ied with the policy and guidelines regarding SITREPS? --- Yes.
Yes. So ---? --- It’s not in the report.
No. And it should have been, shouldn’t it? --- Whether it should have been or not, | don’t know.
Well, it’s a matter you investigated and it’s a conclusion that you've drawn that was presumably unfounded? --- Yes.
So you reached the same conclusion as Detective Sutton’s evidence regarding the reasons why he did not provide more detail to the VKI about the Caltex incident?
--- Yes.
I have some doubt, notwithstanding Detective Zuidema’s evidence, whether this matter was actually investigated by the IAU. If it had been, then logically the IAU report would have referred to it being investigated, then outlined the facts and recorded the outcome of the investigation. If it was accurate for Detective Zuidema to say he did not know whether the investigation into the initial situational report
should have been referred to in the IAU report, then that evidence is absolutely
astonishing.
The adequacy of Detective Sutton’s initial situation report was a critical matter that ought to have been at the very core of the IAU’s investigation into the final evade police incident; namely, whether the incident should have been terminated before it eventually was. A reading of the IAU report gave no indication it had even been
investigated.
Applying the Briginshaw principle, and not without some considerable hesitation, I am not able to reject Detective Zuidema’s sworn evidence that this matter was actually investigated. However, what I do find is that the IAU report was substantially deficient in its failure to outline how it came to the conclusion that
Detective Sutton’s initial situational report to the POC did not breach the relevant
provisions of the Policy.?*' I also find, for the reasons already outlined, that the IAU investigation erred in concluding that there was compliance with the Policy
regarding the initial situation report.
A concluding comment
I was not the only one who was alarmed at the inadequacy of the [AU investigation into this matter. Inspector Hayes was disarmingly frank when he said, “Given the matter was always bound for the Coroner's Court, I’m surprised at the lack of
information in the final report ... 1am surprised that more wasn’t explored.”?
It is clear the LAU investigation into this matter was lacking in a number of significant areas. It is never in the best interests of the LAU, or an individual police officer who has signed the IAU report, for that officer to defend an investigation that was as deficient as this one. Detective Zuidema did precisely that at the inquest, despite being given a number of opportunities to concede that the [AU investigation into the final evade police incident was inadequate. Even on those rare occasions where he appeared to make an appropriate concession, Detective Zuidema would often revert back to defending that part of the IAU investigation, thereby
contradicting himself. This evidence was most unedifying to hear.
Four draft recommendations were forwarded to counsel for the WAPF on 10 December 2021. The WAPF was invited to provide a response to those proposed.
recommendations by 17 December 2021. That response (the Response) was provided by Mr Berson, counsel for the WAPF, via an attachment to an email on
that date.?°
251 Exhibit 1, Volume 1, Tab 12, TR-07.04 Emergency Driving Policy and Guidelines, p.837 252 ts 13.4,21 (Hayes), p.512 253 Response to Proposed Recommendations dated 17 December 2012
Draft recommendation 1 concerned the installation of ‘dash-cam’ technology in all
police vehicles that undertake emergency driving.
Inspector Hayes told the inquest that he had already recommended that there be in-car dash cameras with live feed for all police vehicles in 2020, however, that has remained subject to government funding.“ These cameras would provide a live feed straight to the POC and also capture conversations inside the police car as ° well. They could be activated whenever the lights and sirens of the car are activated and, in those circumstances, there would be no difficulty with storage. As Inspector Hayes stated, “The technology is there and the capacity is there” ?°° In
my view, another advantage would be if the live feed to the POC could also provide
the speedometer reading of the police car.
A recommendation to this effect was recently made by the Deputy State Coroner
Linton in Thorsager [2021] WACOR 20, which was delivered on 27 June 2021.
The WAPF made the following comments in the Response regarding this recommendation:
As noted by the Court, Proposed Recommendation No. 1 was previously made in the Inquest into the death of Jordan Alexander Thorsager. Following the making of that recommendation, the WAPF is currently exploring funding options and the viability of implementing the installation of ‘dashcam’ technology in all police vehicles that undertake emergency driving (being Class 1, Class 2 and Class 4 vehicles).
Draft recommendations 2 and 3 regarded the manner in which [AU investigations
should be conducted.
Draft recommendation 2 concerned the IAU obtaining a report from a relevant policy expert whenever it is investigating fatalities that may be the subject of a
mandatory inquest under section 22(1)(b) of the Act. As already outlined, no such
254 ts (3.4.21 (Hayes), p.489 255 ts 13.4.21 (Hayes), p.490 256 ts 134.21 (Hayes), p.489
report was obtained by the IAU in its investigation of this matter. The evidence that emerged at the inquest clearly demonstrated why such a report should have been obtained. In light of the evidence at the inquest, I am of the view that the outcome of the LAU investigations into the final evade police incident would have been very different if it had access to a report containing an expert’s opinion whether the
Policy had been complied with.
The Response advised that the IAU “considers that the input of a policy expert beneficial in the majority of investigations”. However, the Response went onto submit that the draft recommendation was “overly prescriptive and overly inclusive insofar as it applies to all fatalities investigated by the IAU that are the subject of a mandatory inquest under section 22(1)(b) of the Coroners Act 1996 (WA)”. The WAPF submitted that the recommendation ought to be framed in such a way that the TAU should “always consider obtaining a report or opinion from a relevant
policy expert”.
Draft recommendation 3 concerned a requirement that all subject police officers be compulsorily interviewed by the IAU whenever it is investigating a fatality that may be the subject of a mandatory inquest under section 22(1)(b) of the Act. The failure to interview the two detectives in this matter was an error. It should have been done as the matters requiring investigation by the IAU were either not addressed or inadequately addressed in the statements of the two detectives to the Major Crash Investigation Section and in the Pursuit Return by Detective Mansell.
Unless there are compelling reasons not to do so, these interviews should always take place, whether or not the subject police officers have already provided
statements to another section of the WAPF.
In the Response, the WAPF accepted that for this matter, compulsory interviews of
the subject officers would likely have elicited more facts: The Response went onto
say:
On a case by case basis, the [AU considers the value of reports or statements that may have been provided, and supports the recommendation that, generally, all subject officers are to be compulsorily interviewed unless it is reasonable not to do so. However, the WAPF considers that it is not appropriate to fetter the conduct of IAU investigations through an overly prescriptive recommendation, which requires a compulsory interview in all but ‘compelling’ circumstances.
The WAPF then cited two examples of where a compulsory interview of a subject officer is not appropriate: for investigative reasons or for reasons related to the health of the subject officer. However, the Response stated that, irrespective of any recommendation that I make, the [AU supports “the position that the best evidence may be obtained via an interview and will continue to prioritise interviews of
officers in matters that are the subject of a mandatory inquest under section
22(1)(b) of the Coroners Act 1996 (WA).”
Draft recommendation 4 concerned changes to be made to the WAPF communications systems (i.e. VKI) that would enable the POCCC to speak directly to police officers undertaking emergency driving. The reason for this proposed recommendation was because of the delay encountered when Officer Jones (the acting POCCC at the time) advised the POC dispatcher to communicate to GM411 that the final evade police incident was to be terminated.**? This delay was over 30 seconds after GM411 had advised the POC that the stinger had been avoided by the Nissan.2°* Had the decision been directly communicated by the acting POCCC to GM411 immediately after the advice that the stinger had been avoided, the crash
may not have occurred.
The WAPF did not support this recommendation as such a recommendation “requires further investigation, assessment and analysis to ensure that no unintended consequences follow as a result.” The Response also stated, “while it
may be technically possible to have the Duty Inspector log onto an alternative VKI
257 Statement of Senior Sergeant Jones dated 9 July 2021, p.6 258 Exhibit 1, Volume 1, Tab 11, Report of the TAU dated 23 April 2026, p.31
console, this is not an efficient, practical or appropriate way of performing the
Duty Inspector role”.
The Response also stated that once a situation report had advised the POC a target vehicle had avoided a stinger, the POCCC is “required to undertake a risk assessment and consider what other operation strategies are available to resolve the incident before determined [sic-determining] whether the Evade Police Incident should be terminated’, It was added that this “will often lead to a time delay between the most recent communication of a vehicle engaged in an Evade Police Driving Incident and the communication of a decision to terminate such an incident”. However, I note that that there would have been no such time delay in this instance as the acting POCCC had already made the decision that he would
terminate the pursuit if the Nissan was to avoid the stinger.”
Ms Langoulant, counsel for the family, submitted there was a need for a full review of the Policy? After carefully considering that submission, I have concluded that
it is not necessary to make a recommendation to that effect.
In making that decision, I have relied on Inspector Hayes’ evidence that out of the “6, 500/7,000 of us I don’t see that frequency [of extraordinary driver behaviour] as out of the ordinary statistically, that you would see with a working population.
You’ll always get one, two, the odd one here or there. We’re not all perfect”!
I have also relied on the evidence before me of the exemplary driving of the police cars in the first and second evade police incidents which complied with the Policy
at all times.
266 ts 14.4.21 (Closing Submissions by Ms Langoulant), p.5 261 ts 13.4,21 (Hayes), p.502
277 lam therefore prepared to accept that the behaviour of the two detectives in the
final evade police incident was an aberration of what is otherwise a very good level of compliance with the Policy. I am also of the view that the Policy, if followed, offers the appropriate degree of protection for all road users who become involved,
either directly or indirectly, with an evade police incident.
Nevertheless, if there is one matter that should be drilled into the training of police officers in emergency driving (if it is not already in place), is that in the absence of a compelling reason, a pursuit should always be aborted whenever the car being pursued is being driven dangerously and shows no signs of stopping. Future training should also use, as a case study of what to do, the actions of police officers in the first and second evade police incidents involving Child JP. A case study of
what should never be done by police would be the final evade police incident.
Recommendation No.1: Installation of “dashcam” technology in police cars that
undertake emergency driving
Having noted that the WAPF is in support of this recommendation, I adopt the same recommendation made in June 2021 by the Deputy State Corner. Now that this recommendation has been made for a second time by this Court, I hope the WAPF will hasten its search for funding options to make this recommendation a reality. I have a firm view that it is crucial this technology is funded and implemented as a matter of urgency in order to minimise a repeat of what happened during the final evade police incident where the POCCC was effectively left in the dark as to what
was taking place.
Recommendation No.2: The obtaining of a relevant policy expert’s report by the IAU
The failure by this IAU investigation to obtain input from a policy expert in this
matter was a serious oversight that should never have occurred. I have carefully
considered the Response of the WAPF to my draft recommendation regarding this
matter and have slightly amended my proposed recommendation.
Recommendation No.3: Compulsory interviews of subject officers by the TAU.
281 The WAPF, and more patticularly, the IAU, has said in the Response that it supports the proposition that the best evidence can be obtained via a compulsory interview in matters that fall within section 22(1)(b) of the Coroners Act 1996 (WA). I remain of the view that such interviews should be mandatory unless exceptional reasons exist. I am also of the view that the two examples cited in the Response by the WAPF would be regarded as “exceptional” instances where a
compulsory interview need not take place.
Recommendation No.4: The ability for the POCCC to speak directly to police officers
282 I am convinced that had the decision by the acting POCCC to terminate the final evade police incident been conveyed to Detective Mansell and Detective Sutton more quickly, the fatal outcome of this pursuit may have been avoided.
Nevertheless, I have accepted what the WAPF has submitted in the Response to my proposed recommendation for this matter and have amended the recommendation accordingly. I would urge the WAPF to undertake its
investigation into this matter as quickly as possible.
The Evade Police Intercept driver qualifications for Detective Mansell 283 If Detective Mansell still has his qualification as a Priority Pursuit driver, I would expect my findings will persuade the WAPF to undertake a review of his suitability
to hold that qualification,
Recommendation No.1 ;
/ That the WA Police Force give priority to seeking funding to
| implement the installation of ‘dashcam’ technology in all police: : | vehicles that undertake emergency driving, along with the i | associated infrastructure and personnel to manage and review E 4 footage. The technology should, where possible, provide for real- |, | time, live feed footage to the Police Operations Centre, so that this |) information can be used by the Duty Inspector as part of his or
4 her decision making when running an evade police incident.
Recommendation No.2
4 That for LAU investigations involving a fatality that may be the | subject of a mandatory inquest under section 22(1)(b) of the : |) Coroners Act 1996 (WA), the LAU always obtains a report or
4 opinion from a relevant policy expert, unless there are exceptional 4 reasons not to do so.
Recommendation No.3
4 That for LAU investigations involving a fatality that may be the | subject of a mandatory inquest under section 22(1)(b) of the
4 Coroners Act 1996 (WA), all subject officers are to be
| compulsorily interviewed (whether or not they have already
4 provided statements to another section of the WA Police F orce), unless there are exceptional reasons not to do so.
Recommendation No.4
|) That the WAPF investigate the feasibility of enabling a Duty
; Inspector, who has decided to terminate an evade police incident,
Child JP was a 16-year-old boy who died after he lost control of the car he was driving when performing an extremely dangerous overtaking manoeuvre of another
car at excessive speed. He did not hold a driver’s licence or a learner’s permit.
He had earlier driven in a dangerous manner in order to evade an unmarked police car with two detectives in it which had pursued him for seven minutes over a distance of about 14 kilometres. At no stage during that pursuit did Child JP give any indication he was going to stop and his manner of driving became more dangerous the longer the pursuit continued. Unlike two earlier evade police incidents involving other police officers, the two detectives pursuing Child JP did not voluntarily terminate their pursuit until it was too late to prevent the
catastrophic crash that killed Child JP.
As Detective Mansell and Detective Sutton were in the habit of reminding me during their evidence at the inquest, all police pursuits are dangerous. I did not need to be constantly told that as it is self-evident that all pursuits substantially increase the danger to persons who are directly and indirectly involved. This danger is an immediate and obvious intrinsic risk with all police pursuits, and one that has
materialised with tragically fatal outcomes on a number of occasions.
If police officers comply with the Policy, it does not automatically follow that they will not cause or contribute to a death arising from their pursuit. Although compliance with the Policy does not guarantee that outcome, it clearly will
significantly reduce the risk of police officers causing or contributing to the death.
While most drivers called on by police to stop will react rationally and comply, the minority who do not and are then pursued are more concerned with the
consequences of being caught than with the uncertain risks of flecing. If pursuing
police officers are affected by “red mist”,’ then once the pursuit has begun in earnest, the speed, danger and anxiety of the pursuit and risk of arrest must similarly diminish the pursued driver’s capacity to make rational decisions.”® It therefore becomes too simplistic to argue that, as the pursued driver could simply stop, there is no causal link between the pursuit and the crash. That is to conflate cause with
responsibility?
I have found that Child JP was travelling at excessive speeds and driving dangerously because he did not want to be caught by the two detectives pursuing him.*® [ have also found that but for the pursuit, Child JP would not have been travelling at excessive speeds, overtaking cars in a dangerous manner or performing other risky manoeuvres. This is not to transfer blame or responsibility
to the two detectives, but to. recognise their behaviour as a link in the causal chain.
Based on all the available evidence before me, I have found that if the two detectives involved in the final evade police incident had complied with the Policy then they would have voluntarily terminated the pursuit before Child JP began the
final overtaking manoeuvre that resulted in the crash.
Accordingly, [ have found that the behaviour of Detective Mansell and Detective Sutton, in failing to comply with the Policy and actively disengaging from their continued pursuit of Child JP before his last overtaking manoeuvre, contributed to
his death,
262 ts 13.4,.21 (Hayes), p.502: “‘Red mist’ is a term used to describe a complex emotional situation affecting the state of mind of drivers who become so focused on an objective or outside influence, their ability to accurately assess driving risk is severely reduced. The consequence ... is a significant increase in the risk of a collision.”: Association of Chief Police Officers of England, Wales and Northern Ireland, The Management of Police Pursuits Guidance, London, 2009, [5.7] -
[5.8].
283 Inquest inte the Death of Hamish Raj, State Coronet’s Court of New South Wales, 7 April 2014, File number 2011/00389491 [185]
264 Inquest into the Death of Hamish Raj, State Coroner’s Court of New South Wales, 7 April 2014, File number 2011/00389491 [186]
265 Ax he had done during the first and second evade police incidents.
Furthermore, based on all the available evidence before me, I have found that if Detective Sutton had complied with the Policy by conveying all relevant information when delivering his situation reports to the POC, then the pursuit would have been terminated by the POCCC before the final overtaking manoeuvre
by Child JP that resulted in the crash.
Accordingly, I have also found that this failure by Detective Sutton to comply with the Policy contributed to Child JP’s death.
I have also found that the IAU investigation failed to pursue proper lines of inquiry into the final evade police incident which contributed to it concluding that potential breaches of the Policy by Detective Mansell and Detective Sutton were “unfounded”. These lines of inquiry included the failure to conduct compulsory interviews of the two detectives and the failure to obtain a report from a senior police officer with expertise in the application of the Policy. Had the IAU investigation been conducted more thoroughly then I expect its outcome regarding
the two detectives would have been very different.
Tam satisfied that with respect to evade police incidents, the WAPF is aware of the need to balance the risks of harm to others against the benefits of apprehending offenders. I am satisfied that the Policy does that appropriately. Had the Policy been complied with in the final evade police incident, it is almost inevitable that the crash would not have occurred. Apart from when the Nissan was observed exceeding the speed limit just before the first evade police incident, the evidence before me indicated that Child JP’s manner of driving, when he was not being
pursued, complied with the road traffic rules.
Child JP was a 16-year-old boy who was only just getting his life back into order after some turbulent years. Notwithstanding his young age, he was in a cornmitted
relationship with his girlfriend and had plans to further his education. He also had
the support of his aunt and her family who had provided him with a stable accommodation and safe family life. Child JP’s girlfriend and family members attended the inquest and their continuing grief at the loss of Child JP was palpable.
They conducted themselves with dignity throughout the six days of the inquest,
even though some of the evidence would have been very difficult to hear.
297 I have made four recommendations aimed at addressing the issues I have identified during the inquest. It is my hope that these recommendations will provide some
small consolation to Child JP’s family for their sad loss.
298 1 offer the family and friends of Child JP my sincere and heartfelt condolences.
PJ Urquhart Coroner 21 December 2021
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