Deceased
Ly Minh Tong
Demographics
38y, male
Coroner
Coroner Jenkin
Date of death
2018-11-22
Finding date
2021-11-29
Cause of death
Multiple gunshot wounds
AI-generated summary
A 38-year-old man with a history of methamphetamine use and mental health issues, subject to a violence restraining order, assaulted his father at home. The father reported to police that his son was armed with a knife, had threatened to kill his mother and police, and was holding his mother hostage. Police attended and when officers opened the bedroom door, the man ran toward them aggressively. Believing he was armed and posed an imminent lethal threat, an officer discharged his firearm, fatally wounding the man. Post-mortem toxicology confirmed significant methamphetamine intoxication; the man was found with only a pocket knife, not the knife reported by police. The coroner found the shooting was lawful self-defence but made recommendations regarding use of interpreters by police, family liaison procedures, and improved awareness of specialist police resources.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
[2021] WACOR 41 JURISDICTION : CORONER'S COURT OF WESTERN AUSTRALIA ACT : CORONERS ACT 1996 CORONER : MICHAEL ANDREW GLIDDON JENKIN HEARD : 21 - 22 SEPTEMBER 2021 DELIVERED : 29 NOVEMBER 2021 FILE NO/S : CORC 1458 of 2018
DECEASED : TONG, LY MINH Legislation: Coroners Act 1996 (WA) Criminal Code (WA) Criminal Investigation Act 2006 (WA) Police Force Regulations 1979 (WA) Counsel Appearing: Ms S Tyler assisted the Coroner.
Ms N Eagling (State Solicitor’s Office) and Ms A Western (WA Police Legal Services) appeared on behalf of the Western Australia Police Force.
[2021] WACOR 41 Coroners Act 1996 (Section 26(1))
AMENDED RECORD OF INVESTIGATION INTO DEATH I, Michael Andrew Gliddon Jenkin, Coroner, having investigated the death of Li Minh TONG with an inquest held at Perth Coroners Court, Central Law Courts, Court 51, 501 Hay Street, Perth, on 21 - 22 September 2021, find that the identity of the deceased person was Li Minh TONG and that death occurred on 22 November 2018 at 1 Yenisey Crescent, Beechboro, from multiple gunshot wounds in the following circumstances: Table of Contents
[2021] WACOR 41 SUPPRESSION ORDER After considering applications from Ms Naomi Eagling (counsel for the Western Australian Police Force) I was persuaded that it would be appropriate to make the following order:
SUPPRESSION ORDER On the basis that it would be contrary to the public interest I make an Order under section 49(1)(b) of the Coroners Act 1996 (WA) that:
There be no reporting or publication of any document or evidence that would reveal police policies and standard operating procedures, tactics, or training methods in relation to the use of force, including, but not limited to, firearms.
There be no reporting or publication of details about the decision making criteria, response times, resourcing and any other operational aspects of the Western Australia Police Force Tactical Response Group.
There be no reporting or publication of the methodologies, response times or resourcing of the Western Australia Police Force Tactical Response Group.
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.
Order made by: MAG Jenkin, Coroner (21.09.21)
Ly Minh Tong (Mr Tong) died on 22 November 2018 in Beechboro from multiple gunshot wounds. He was 38-years of age.1
As a result of information obtained from family members, police believed that Mr Tong was holding his mother hostage at knifepoint at the family home. Police attended and called on Mr Tong to give himself up. Instead, Mr Tong, who was intoxicated with methylamphetamine, ran towards police and was shot and killed.
Mr Tong’s death was a “reportable death”2 and in this case, because his death may have been caused by a member of the Western Australian Police Force (the Police), a coronial inquest was mandatory.3 I held an inquest into Mr Tong’s death on 21 - 22 September 2021, which members of his family attended. The following witnesses gave oral evidence:4 i. Ms Thi Bich Phuong Tong (Mr Tong’s sister); ii. Constable Darren Maher (Midland Police Station); iii. Senior Constable Simon Briggs (Midland Police Station); iv. Sergeant Lisa Benington (Midland Police Station); v. First Class Constable David McArthur (attending police officer); vi. Sergeant George Bogunovich (attending police officer); vii. Sergeant Thomas Dellar (attending police officer); viii. Detective Acting Senior Sergeant Warren Moore (Homicide Squad); ix. Mr Chris Markham (use of force expert); and x. Superintendent Peter Hatch (Police policy expert).
The documentary evidence adduced at the inquest included reports prepared by the Police,5,6,7 witness statements, policy documents, medical records and other materials and together, the Brief comprised three volumes. The inquest focused on the circumstances surrounding Mr Tong’s death and the question of whether any member of the Police caused or contributed to the death.
1 Exhibit 1, Vol. 1, Tab 3 - Life Extinct Certification (22.11.18) 2 Section 3, Coroners Act 1996 (WA) 3 Section 22(1)(b), Coroners Act 1996 (WA) 4 The roles shown in this list are those held by the relevant officer at the time of Mr Tong’s death.
5 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20) 6 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21) 7 Exhibit 1, Vol. 1, Tabs 17.1, 17.2 & 17.3, Reports - Mr C Markham (21.08.19, 21.08.19 & 10.04.20)
[2021] WACOR 41 MR TONG Background8,9,10,11,12
Mr Tong was born in Vietnam on 2 February 1980, and came to Australia with his family in about 1990. At the time of his death, he was receiving a disability pension and lived in the family home at Beechboro with his parents; twin 18-year old nephews (NH and AH); sister (Ms O Tong), her husband (Mr Tang) and their child (JT).
Mr Tang said Mr Tong had a troubled early life, had used illicit drugs and was “hanging around the wrong people”. However, he had not been in trouble with police “for over 10 years”. In her police statement (obtained with the help of a Vietnamese interpreter),13 Mr Tong’s mother (Ms Nguyen), said that Mr Tong and her husband (Mr P Tong) argued a lot and she put this down to the fact that her husband made constant complaints about Mr Tong’s behaviour and he (i.e. Mr P Tong) was “going a bit mad”, by which she meant he was forgetting things.
Ms Nguyen said because of these constant complaints, Mr Tong did not like his father and that she would always try to calm Mr Tong down when he was angry. Although Mr Tong frequently argued with his father and brothers, she said he rarely argued with either her or his sisters.
Mr P Tong said that although Mr Tong asked him and/or Ms O Tong for money at times he “was not violent” when he did so. Mr Tong’s requests for money apparently petered out but resumed about six months before his death. Mr P Tong assumed this was because Mr Tong had started using illicit drugs again.
Ms Nguyen said that when he wasn’t angry, Mr Tong was “normal” and enjoyed playing with his nieces and nephews. She said she loved Mr Tong very much and he loved her, but that in the two years leading up to his death, she had noticed him becoming angry more easily over small issues.
8 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20), pp1-2 9 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp9-10 10 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 3-38 & 53-70 11 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 3 & 43-48 12 Exhibit 1, Vol. 2, Tab 5, Statement - Mr Q Tang (25.11.18), paras 13-15 13 Exhibit 1, Vol. 2, Tab 32, Statement - Det. Sen. Const. N Poulsen (01.01.19), paras 4-14
[2021] WACOR 41 Overview of medical and mental health issues14,15,16,17
Mr Tong’s medical history included severe chronic insomnia and type2 diabetes. He had also received treatment for thrombocythaemia (a rare blood disorder caused by high levels of platelets) and Hepatitis C.
Mr Tong last saw his GP on 20 November 2018. On that occasion, he complained of insomnia and was prescribed nitrazepam (Mogadon). At the time of his death his medication regime also included: olanzapine, diazepam, quetiapine, temazepam and clonazepam.18
Mr Tong had a well-documented history of polysubstance use including benzodiazepines, heroin and methylamphetamine and in 2002, he received a Naltrexone implant to treat his heroin addiction. Mr Tong had also been diagnosed with emotionally unstable personality disorder, with borderline and antisocial traits.
Mr Tong’s medical records also show that he experienced recurrent episodes of drug-induced psychosis that were usually associated with methylamphetamine intoxication. These periods of psychosis were characterised by deliberate self-harm attempts and aggressive behaviour and threats directed towards his family. It seems clear that despite earlier periods of abstinence, Mr Tong had resumed using intravenous drugs by July 2018.19,20,21 Contact with mental health services22,23,24
Mr Tong’s first recorded contact with mental health services occurred on 9 June 2003, when he was admitted to the Mills Street Centre at Bentley Health Service (BHS) as an involuntary patient. On admission, he reported a one-month history of increasing paranoia, apparently related to his intravenous use of methylamphetamine.
14 Exhibit 1, Vol. 3, Tab 1, Medical Records - Amazon Family Practice 15 Exhibit 1, Vol. 1, Tab 8, PathWest Microbiology report (24.11.18) 16 Exhibit 1, Vol. 3, Tab 1, Letter - Dr S Ponnuswamy (17.05.16) 17 Exhibit 1, Vol. 3, Tab 8, Report - Dr V Pascu (13.09.21), paras 41-51 18 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), p4 19 Exhibit 1, Vol. 3, Tab 4, Letter - Dr S Ponnuswamy (25.07.18) 20 Exhibit 1, Vol. 3, Tab 1, Medical Records - Amazon Family Practice (02.08.18) 21 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 23-28 22 Exhibit 1, Vol. 3, Tab 2, Medical Records - Swan District Hospital 23 Exhibit 1, Vol. 3, Tab 2, Medical Records - Mills Street Centre 24 Exhibit 1, Vol. 3, Tab 3, Medical Records - Royal Perth Hospital
Mr Tong had reportedly threated to “turn the gas on in his house to blow his family member(s) up”. He also claimed his family were using cameras to “spy” on him to see if he was using drugs and had damaged items in the home, including a DVD player, to “get rid of the cameras”. He was diagnosed with drug induced psychosis and discharged home on 12 June 2003, with follow up from a community mental health service.25
On 28 May 2005, Mr Tong was taken to the emergency department at Swan District Hospital (SDH) by police after reportedly threatening his mother and sister by holding a knife to their necks. He had multiple superficial self-inflicted cuts to his wrist and disclosed heroin and amphetamine use the day before. Following a psychiatric assessment, he was returned to the custody of the police the same day.26
On 31 December 2006, Mr Tong presented to the BHS in an agitated state exhibiting paranoid ideation. He disclosed recent amphetamine use and claimed he had injected himself in the neck with Epsom salts and/or soy sauce. He was admitted to the Swan Valley Centre (SVC) where he denied any suicidal ideation and was diagnosed with drug induced psychosis. His history of assaults, especially towards his family, was noted and he was discharged home on 2 January 2007.27,28,29
On 18 January 2007, police arrested Mr Tong for allegedly assaulting a friend and took him to Royal Perth Hospital for psychiatric review.
Mr Tong disclosed ongoing suicidal ideation and exhibited psychotic symptoms including auditory hallucinations, paranoid thoughts and ideas of reference. He also told staff there was a machine in his head. It appears that after his mental state improved, Mr Tong was discharged back into the custody of police on 22 January 2007.30 25 Exhibit 1, Vol. 3, Tab 2, Discharge Summary - Mills Street Centre (12.06.03) 26 Exhibit 1, Vol. 3, Tab 5, Emergency Department Notes and Discharge Letter (28.05.05) 27 Exhibit 1, Vol. 3, Tab 2, Discharge Summary - Mills Street Centre (31.12.06) 28 Exhibit 1, Vol. 3, Tab 2, Integrated Progress Notes - Swan Districts Hospital (31.12.06) 29 Exhibit 1, Vol. 3, Tab 3, Interim Discharge Letter - Swan Valley Centre (02.01.07) 30 Exhibit 1, Vol. 3, Tab 3, Integrated Progress Notes - Royal Perth Hospital (18-22.01.07)
Although Mr Tong’s mental state settled and he was discharged home on 9 September 2007, police were asked to conduct welfare checks on his family because of the threats Mr Tong had made.31
Mr Tong’s last reported interaction with mental health services was on 9 October 2007, when he presented to SDH following a self-harm attempt in which he reportedly injected saline and soy sauce into his neck. He was transferred to the SVC and although he denied using alcohol or drugs, he disclosed a recent attempt to hang himself. He was discharged home on 10 October 2007.32
Although at various times Mr Tong was prescribed antipsychotic and sedative medications for symptoms related to episodes of drug-induced psychosis, he appears to have been non-compliant. Although he sometimes engaged with community mental health services and/or his GP, this was usually only at times of crisis related to his illicit drug use.
Criminal record and evidence of violent behaviour33,34
By the time of his death, Mr Tong had accumulated numerous convictions for offences including: burglary, stealing, armed robbery, possession of methylamphetamine35 and unlawful wounding. He had also been sentenced to terms of imprisonment in 1999, 2000, 2005 and 2007.
On 30 May 2005, Mr Tong was convicted of aggravated common assault after holding a knife to his sister’s throat in a “threatening manner” after finding her in his bedroom. He was said to have been in an agitated state as a result of lack of sleep and drug use and told police: “It’s not the first time I’ve done it, they know I’m not going to do anything”.36 31 Exhibit 1, Vol. 3, Tab 5, Medical Records - Swan District Hospital 32 Exhibit 1, Vol. 3, Tab 5, Integrated Progress Notes - Swan District Hospital (09-10.09.07) 33 Exhibit 1, Vol. 1, Tab 31, Mr Tong’s Criminal record, pp1-2 34 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p10 35 The statement of facts for this charge refers to Mr Tong possessing a Samurai sword with a 30cm blade.
36 Exhibit 1, Vol. 1, Tab 30.3, Statement of Material Facts (Incident No. 123011703, 28.05.05)
On 14 May 2007, Mr Tong was convicted of two counts of aggravated assault occasioning bodily harm following an incident in 2006, involving an elderly couple. Mr Tong had been collecting items from the verge outside the couple’s home when a dispute arose. Mr Tong punched the elderly woman and man in the face and head respectively, causing them both to fall to the ground.37 On 15 May 2007, Mr Tong was also convicted of unlawful wounding after attacking a male with an iron bar.38
There is other evidence before me in relation to Mr Tong’s violent behaviour towards his family. On 28 November 2006, Mr P Tong’s eldest daughter (Ms Tong)39 applied for a violence restraining order against Mr Tong in the Midland Magistrate’s Court. Although her application was withdrawn on 14 December 2006, the affidavit Ms Tong filed in support of her application included allegations that during 2006:40 a. Mr Tong got angry at Ms Tong, swore at her and said he would kill her; b. Mr Tong had threatened to hit Ms Tong whilst he was arguing with their mother about money; c. Mr Tong threatened to damage Ms Tong’s car after he had been using drugs and the next morning the windscreen was smashed; d. Mr Tong had threatened to burn down Ms Tong’s house and kill his family when they complained about him; and e. Mr Tong had held a knife to Ms Tong’s throat and threatened to kill her if she did not give him money.
According to Mr Tong’s father (Mr P Tong), Mr Tong had made various threats towards family members. On one occasion, Mr Tong reportedly threatened to “chop and kill his older brother” after an argument over Mr Tong’s polysubstance use and the fact he was unemployed.41 37 Exhibit 1, Vol. 1, Tab 30.2, Statement of Material Facts (Charge Nos. PPE 06041863 & PPE 06041863, 24.07.06) 38 Exhibit 1, Vol. 1, Tab 30.1, Statement of Material Facts (Charge No. PMI 07001129, 18.01.07) 39 Mr P Tong’s eldest daughter is Thi Bich Phuong Tong, referred to in this finding as “Ms Tong”.
40 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp126-127 41 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), para 69
However, with the assistance of an interpreter, Mr Tong’s older brother gave a statement to police denying that this incident had occurred. The older brother said he had never seen Mr Tong angry with anyone; had never had arguments with Mr Tong; and that he and his family had never been threatened by Mr Tong.42
Mr P Tong also said that in June 2018, Mr Tong had threatened to chop off the heads of another brother and his family following that brother’s refusal to assume responsibility for driver’s licence demerit points Mr Tong had accrued.43
The brother against whom these threats were allegedly made gave a statement to police saying that, although Mr Tong swore at him when he refused to accept the demerit points, he (Mr Tong) had never threatened him or his family and that two weeks after the incident, Mr Tong had apologised for the incident saying he “had a hot temper”.44
Mr Tong’s nephew (AH) said that Mr Tong sometimes became angry and overreacted “very easily”. AH said when Mr Tong overreacted he could “be threatening and say things about killing people”, but AH never thought these threats were directed against any particular person. AH said that Mr Tong’s threats to kill people had occurred about three times during the period he (AH) had lived at the Tong family home.45
In her police statement, Ms Tong said her family were “a bit scared” of Mr Tong because of the way he behaved when he took illicit drugs. She said that she last time saw Mr Tong a few months before his death and on that occasion, Mr Tong went “a bit mental” by which she meant he was yelling. Ms Tong also said her father had told her that there was no joy in the family home and that Mr Tong “causes them so much stress”.46 42 Exhibit 1, Vol. 2, Tab 8, Statement - Mr H Tong (10.12.18), paras 13-27 43 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 42-52 44 Exhibit 1, Vol. 2, Tab 6, Statement - Mr A Tong (06.12.18), paras 60-78 45 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 48-50 46 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), para 20
Mr P Tong says that as a result of Mr Tong’s behaviour he “became scared for his family” and so, with the help of Ms Tong, he applied for a family and violence restraining order (VRO). Ms Tong is said to have completed an affidavit in support of the VRO on behalf of her father. That affidavit detailed an incident on 9 June 2018, when Mr Tong took Mr P Tong’s car without permission and then attempted to stab his brother who had been visiting at the time. Mr Tong was reportedly prevented from doing so by Ms Nguyen, who intervened and struggled with him.47
The supporting affidavit also referred to Mr Tong’s repeated demands that family members give him money and his threats to kill them if they refused to do so. The affidavit also said that Mr Tong was using illicit drugs, had threatened to burn down the house and had damaged property at the family home. Mr Tong was described as “violent and very intimidating” and had threatened family members with a knife and “slit his own throat after no one gave him money”.48
Mr P Tong’s application was successful and the VRO was made in the Midland Magistrate’s Court on 18 June 2018. The VRO was served on Mr Tong on 30 June 2018. Although one of the conditions of the VRO was that Mr Tong was not permitted to live at, or come within 50 metres of the family home, he continued living there.49,50
To my surprise, at the inquest Ms Tong denied having helped her father to obtain the VRO although in her police statement, she did refer to a VRO she had sought against Mr Tong 15 years previously (presumably a reference to the application she made in 2006 and subsequently withdrew).
In denying she had helped her father with the VRO, Ms Tong appeared to be seeking to distance herself from anything remotely connected to Mr Tong’s death because of her concerns that family members blamed her for his death. I will return to this issue later in this finding.51,52 47 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p127 48 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp127-128 49 Exhibit 1, Vol. 2, Tab 12.3, Statement - Const. D Maher (31.12.18), para 12 50 Exhibit 1, Vol. 2, Tab 14.1, Statement - Sen. Const. D Parker (23.12.18), paras 10-11 51 ts 21.09.21 (Ms Tong), p10 52 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), para 18
As will be recalled, this was the very day the VRO had been served on Mr Tong. Police had established that Mr Tong had drug issues and Officer Parker said it was clear that Mr Tong was “hassling his parents for money and causing issues when they refused him”. After his arrest Mr Tong alternated between being “very argumentative”, and “trying to beg to be released on that day”. Mr Tong was convicted of breaching the VRO and fined on 1 July 2018.53,54,55,56
Although some members of the Tong family appear to have been unaware that the VRO had been granted, Ms O Tong (who lives at and owns the family home), said she begged her father to withdraw the VRO because under its terms, Mr Tong would have nowhere to live. However, despite her pleas, Mr P Tong refused to do so.57,58
Mr P Tong said that even after Mr Tong had been convicted and fined for breaching the VRO, he continued to live at the family home. Mr P Tong did not report these further breaches of the VRO to the Police because Mr Tong had “threatened to chop his brother’s head off and use a knife”.
Ironically, this was one of the reasons why the VRO was obtained in the first place.
53 Exhibit 1, Vol. 2, Tab 12.3, Statement - Const. D Maher (31.12.18), paras 12-13 54 Exhibit 1, Vol. 2, Tab 1, Statement - Mr P Tong (01.12.08), paras 53-58 55 Exhibit 1, Vol. 1, Tab 31, Mr Tong’s Criminal record, p1 56 Exhibit 1, Vol. 2, Tab 14.1, Statement - Sen. Const. D Parker (23.12.18), paras 12-16 57 Exhibit 1, Vol. 2, Tab 7, Statement - Ms O Tong (25.11.18), paras 47-55 58 Exhibit 1, Vol. 2, Tab 6, Statement - Mr A Tong (06.12.18), paras 65-89
Mr P Tong was clearly frightened of Mr Tong even if some of the difficulties between the pair were caused by Mr P Tong’s rigid attitude towards his son. Ms Nguyen and Ms O Tong appear to have been cast in the role of peacemakers and on their own accounts, they were generally able to calm Mr Tong. As I will explain, Ms O Tong says she did so on 22 November 2018, by telling Mr Tong that the neighbours might call the police if he did not moderate his behaviour.59
Ms Tong says she had very little to do with Mr Tong after seeking a VRO against him in 2006 and did not live at the family home. Nevertheless, her father regularly visited her home and she was clearly concerned about the way Mr Tong treated their parents.
EVENTS LEADING TO MR TONG’S DEATH Incident at the Tong family home60,61,62,63,64,65,66
At about 7.00 am on 22 November 2018, Ms Nguyen saw Mr Tong in the lounge room of the family home. He was disconnecting a small DVD player67 and replacing it with a larger one. Apparently Mr Tong owned both DVD players and his mother assumed he was swapping them over so that he could take the smaller DVD player to his bedroom.
A short time later, Mr P Tong came into the lounge room and asked Mr Tong what he was doing. Mr Tong replied: “I didn’t do anything wrong, I just replaced a DVD for mummy”. His father told him to leave the DVD player alone saying it had cost $800 to connect it to a Vietnamese TV service. Mr Tong replied that he owned both DVD players and the pair continued to argue as Mr Tong took the smaller DVD player to his bedroom. Mr P Tong says Mr Tong called him a “motherfucker” and used other “derogatory terms in Vietnamese which are very disrespectful”.68 59 Exhibit 1, Vol. 2, Tab 7, Statement - Ms O Tong (25.11.18), paras 59-85 60 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 6-41, 49-54, 59 & 63-87 61 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 3-38 & 71-107 62 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 1-18 & 34-45 63 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 1-16 64 Exhibit 1, Vol. 2, Tab 5, Statement - Mr Q Tang (25.11.18), paras 25-35 65 Exhibit 1, Vol. 2, Tab 7, Statement - Ms O Tong (25.11.18), paras 65-96 66 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp5-9 67 Mr Tong’s father says that the device Mr Tong was disassembling was a ‘channel decoder’.
68 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), para 74
Mr Tong’s nephew (NH) yelled at Mr Tong to “calm down” and Mr Tong replied: “You’re not allowed to say those types of things to me” before pushing NH in the face with his hand. This caused NH’s glasses to fall into a basket in the hallway outside the bedroom NH shared with his twin brother (AH). NH says Mr P Tong told him to call the police whilst Ms Nguyen told him to go to his bedroom and lock the door.69
NH went into his bedroom and locked the door before texting his Aunt (Ms O Tong), who had already left the house to go to work. In his text, NH said that Mr Tong had “gone crazy” and was arguing with Mr P Tong and she “might need to call the police”, but that he had to go to university.
Ms O Tong asked for AH’s mobile number which NH gave her.
NH retrieved his glasses from the basket in the hallway and left the house at about 7.30 am to catch a bus to university. As he was leaving, NH saw Mr Tong in the dining room but didn’t see anyone else. A while later Mr Tong came out of his bedroom and Ms Nguyen says he looked very angry. Mr Tong ran towards her and her husband, who were both in the kitchen, yelling: “Fuck you, fuck you why you keep complaining about me”.70
Ms Nguyen called out “Stop, stop, stop” and put her hands around Mr Tong’s waist from behind in a bid to stop him reaching her husband, but Mr Tong elbowed her out of the way. Ms Nguyen says this caused injury to her left arm but denies she stumbled backwards or that she fell to the ground. In contrast, Mr P Tong says that Mr Tong shoved Ms Nguyen to the ground and that “she hit her head on the wall”.
Whichever version of events is correct, it is not in dispute that after breaking free from his mother, Mr Tong ran towards his father before pushing him: “very hard in the back with both of his hands” whilst saying “Fuck you, fuck you, fuck you”. The force of the push caused Mr P Tong to fall to the ground and as he did so, he hit his face on some boxes and scratched his left leg.71,72 69 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 14-15 70 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), para 24 71 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 33-35 72 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 75-81
As Ms Nguyen rushed to help her husband, she heard him say to Mr Tong: “You are a trouble maker, don’t be rude. God can see you. Why did you push me?” Mr Tong replied: “Why you keep complaining about me?” and according to Ms Nguyen, Mr Tong then fetched some salt which he rubbed into her arm, apparently in an attempt to ease her pain. For his part, Mr P Tong says that at some later stage, Ms Nguyen rubbed some salt “into the wound on her head”.73
Meanwhile, after speaking to NH, Ms O Tong called Mr Tong and asked him why he had been arguing with their father. Mr Tong said the argument related to a DVD player and that his father always blamed him for “everything that happens”. Ms O Tong told Mr Tong to go to his room and “cool down” saying that if he kept shouting, the neighbours might call police. Ms O Tong then sent a text message to AH asking if things were “OK” and AH texted back: “It’s OK at the moment. No more yelling”.74
Following Mr Tong’s assault on his father, Ms Nguyen sent Mr Tong to his bedroom with a cup of coffee. She later spoke to him saying: “You are so rude, push your father like that. Son don’t be rude to your father”.
Mr Tong replied that he had a “hot temper”. At about 8.30 am, Mr P Tong and Ms Nguyen took their grandchild (JT) to school and on their return, Mr Tong appeared to be calm.75
Mr Tong asked Mr P Tong if he could borrow his car to go to his sister’s home where he planned to mow the lawn. Mr P Tong refused saying he needed to use the car and Mr Tong angrily responded: “No worries, no problems”, before punching some wind chimes on the back patio and returning to his bedroom. Ms Nguyen told him not to do this because it would annoy their neighbours. About five minutes later she went to Mr Tong’s bedroom to check on him and thought he was behaving in a “normal” manner.76 73 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 34-41 74 Exhibit 1, Vol. 2, Tab 7, Statement - Ms O Tong (25.11.18), paras 81-87 & 91-94 75 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 50-52 76 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 81-84
Mr P Tong says he was frightened that Mr Tong would assault him again and so, at about 4.00 pm, Mr P Tong drove himself to Ms Tong’s house to ask her to take him to the Midland Police station (the Station) so police “could mediate with what happened”.77 Mr Tong’s father and sister attend Midland Police station78,79,80,81,82
After Mr P Tong arrived at Ms Tong’s home he went inside and she asked if he was “OK”. He shook his head and said words to the effect of “I am now but wasn’t before” and told Ms Tong about the argument between himself and Mr Tong that morning (the Altercation).83
Mr P Tong told Ms Tong that Ms Nguyen had tried to intervene and that both he and his wife had fallen to the ground, although he did not say how this had happened. Mr P Tong also told Ms Tong that Ms Nguyen hit her head as she fell and showed Ms Tong a bruise on the outside of his left leg just below the knee, which he said he sustained when he fell.
Mr P Tong was unsure how to get to the Station and does not speak English and in her police statement, Ms Tong says her father asked her to take him to the Station so that Mr Tong “could go to rehab”. She says she readily agreed to do so and noted that although she had not seen her father and Mr Tong argue, her father had told her he “can’t stand (Mr Tong) anymore”.84
At the inquest, Ms Tong gave a slightly different version of events. She said that when her father came to her house, he told her about the Altercation and asked her to call the police and report the matter. Ms Tong says she told her father that she didn’t speak English very well and he replied: “If you don’t speak English that well, please, you come with me to the police station”.85 77 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 105-107 78 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 105-136 79 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), paras 11-23 and ts 21.09.21 (Ms Tong), pp11-22 80 Exhibit 1, Vol. 2, Tab 11.1, Statement - Ms K Benjafield, (06.12.08), paras 5-7 & 9-19 81 Exhibit 1, Vol. 2, Tab 11.2, Ms K Benjafield’s Recollections of Incident (22.11.18) 82 Exhibit 1, Vol. 2, Tab 12.3, Statement - Const. D Maher (31.12.18), paras 4-49 83 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), paras 12 84 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), para 16 85 ts 21.09.21 (Ms Tong), p12
In her police statement, Ms Tong says she drove her father to the Station in his car and that during the journey, he told her he wanted the police to arrest Mr Tong and move him away and that he “didn’t want any more trouble”, which she took to be a reference to arguments. Ms Tong said that her parents were old and her mother was sick and that they “don’t need to be unhappy”. She also said that AH and NH, who were both attending university, “don’t need the arguments either”.86
At the inquest, Ms Tong initially maintained that during the journey to the Station Mr P Tong had not said much more about the Altercation.
However, she eventually conceded that her father had told her that he wanted the police to help place Mr Tong in “rehab”. She also agreed that he had told her about falling and hurting his leg and that Ms Nguyen had fallen and hit her head.87
Ms Tong and Mr P Tong (the Tongs) arrived at the Station at 4.09 pm.88 They approached the front counter and initially spoke with Ms Benjafield, a customer service officer whose role was to interact with members of the public. Ms Benjafield recalled that Ms Tong spoke with a “thick Asian accent” and was “hard to understand”, meaning she had to listen carefully to what Ms Tong was saying.89
Ms Benjafield says Ms Tong told her that Mr Tong was not allowed to go near her father and produced a document which Ms Benjafield recognised as a VRO. Ms Tong asked Mr P Tong questions and appeared to translate his responses into English, although I note that the Internal Affairs Unit (IAU) report suggests that CCTV footage shows Ms Tong mainly speaking on her father’s behalf, as opposed to translating his version of events.90 This was also Officer Briggs’ impression during the time he interacted with the Tongs at the Station.91 86 Exhibit 1, Vol. 2, Tab 3.2, Statement - Ms T Tong (27.11.18), para 18 87 ts 21.09.21 (Ms Tong), p13 88 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p91 89 Exhibit 1, Vol. 2, Tab 11.2, Ms K Benjafield’s Recollections of Incident (22.11.18) 90 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp134-135 91 ts 21.09.21 (Briggs), p27
Police version of what was said92,93,94,95,96,97,98,99,100
Ms Benjafield says Ms Tong gave her the following details about the Altercation: a. Mr Tong had assaulted his father with a knife and had held a knife to her father’s throat; b. Mr Tong had pushed his mother against a wall causing a head injury which Ms Tong described as a “big bump”; c. Mr Tong had damaged “things” in the house and had cut the phone line so his parents could not call the police; and d. Mr Tong would not allow his parents to leave the house, but her father had run out of his house and had come to her place.
Ms Benjafield says Ms Tong also said that her mother was still at the Tong family home and she repeated back what Ms Tong had said in order to clarify the information. Ms Benjafield clearly appreciated the gravity of the situation because she immediately went to the Duty Sergeant’s office where she spoke to Officer Briggs to tell him she needed his help with an urgent matter. Ms Benjafield relayed what Ms Tong had told her and Officer Briggs went straight to the Station’s front counter where he spoke to the Tongs in the presence of Ms Benjafield and Officer Maher (who at that time, was a mature-aged probationary constable).
92 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 104-136 93 Exhibit 1, Vol. 2, Tab 11.1, Statement - Ms K Benjafield, (06.12.08), paras 18-89 94 Exhibit 1, Vol. 2, Tab 11.2, Ms K Benjafield - Recollections of Incident (22.11.18) 95 Exhibit 1, Vol. 2, Tab 10.1, Statement - Officer S Briggs (23.11.18), paras 5-58 96 Exhibit 1, Vol. 2, Tab 10.2, Statement - Officer S Briggs (07.12.18), paras 4-58 and ts 21.09.21 (Briggs), pp31-37 97 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp33-34 98 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), paras 4-49 99 Exhibit 1, Vol. 2, Tab 12.4, Notes - Officer D Maher (22.12.18) 100 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp36-38
Ms Benjafield heard Ms Tong give Officer Briggs the same information that she (Ms Tong) had earlier conveyed. At the inquest, both Officer Briggs and Officer Maher said they did not have any issues communicating with Ms Tong and did not think her English was poor or that she had a heavy accent.101
Ms Tong told Officer Briggs that Mr Tong had “cut her dad on his leg in two places with a knife” and although Mr P Tong showed Officer Briggs a small injury just below the left knee, Officer Briggs did not think this injury was fresh, because it appeared to have a scab. Mr P Tong also indicated another injury to his left upper thigh/hip, although Officer Briggs did not see any blood or cuts on Mr P Tong’s trousers. This second injury was not sighted because Officer Briggs did not want to embarrass Mr P Tong by having him lower his trousers.102
Officer Briggs asked Ms Tong who was at the Tong family home and says she told him that the only persons there were her mother and Mr Tong.
Officer Briggs asked Ms Tong to confirm that it was Mr Tong’s name on the VRO and to again confirm that her mother and brother were the only ones at home, and says Ms Tong did so.103 Ms Benjafield heard Ms Tong tell Officer Briggs that Mr Tong had said: “[I]f any police attend the address he would kill his mother and go for the police”.104 In their respective police statements and at the inquest, both Officer Briggs and Officer Maher confirmed that these words were said.105 By “go for police” Ms Benjafield understood Ms Tong to be saying that Mr Tong would attack police if they attended.
Officer Maher says that Ms Tong also said that Mr Tong was very violent and that all of the family were scared of him. She said that Mr Tong told the family that if they went to the police, he would “kill them and burn the house to the ground”. When Officer Maher asked who Mr Tong would kill, Ms Tong replied: “He will kill family and Police”.107
As I will explain later in this finding, Officer Maher was subsequently ordered to speak to the Tongs at the Station’s front counter and later took them into a room to interview them about the Altercation. As he spoke with the Tongs and later interviewed them, Officer Maher took notes of the information he was given (the Notes).
I will deal with the propriety of Officer Maher being directed to speak to and later interview the Tongs later, but for now, I will mention that the Notes included the following general observations:108 a. Mr Tong uses illicit drugs and demands money from his parents every few days. When this is not forthcoming, Mr Tong damages items around home and has previously taken his parents’ car and deliberately smashed it when they refused to give him money; b. One of Mr Tong’s brothers had bought their parents a car and Mr Tong had deliberately accrued speeding fines in it, knowing it was registered in his brother’s name; c. Mr Tong had threatened to keep accruing speeding fines unless his brother gave him money, and when his brother refused to do so, Mr Tong attempted to assault him; d. All of Mr Tong’s siblings were frightened of him and preferred not to go to the Tong family home; e. Mr Tong’s twin nephews (who live at the Tong family home) had witnessed many arguments between Mr Tong and his parents; 107 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), paras 25-27 108 Exhibit 1, Vol. 2, Tab 12.4, Notes - Officer D Maher (22.12.18) and ts 21.09.21 (Maher), p62
[2021] WACOR 41 f. Mr Tong repeatedly told his siblings that if they went to the police, he would kill them and set fire to the house; g. Ms Tong said that Mr Tong did not leave the Tong family home after being served with the VRO and there was nothing she could do about it; h. Ms Tong said her parents felt trapped in the house and were scared of Mr Tong as he was always angry; i. Ms Tong said she was scared to bring her father to the Station as Mr Tong would try to hurt her mother or father, or whoever alerted the police; and j. Mr P Tong and his wife had tried to call “000” that morning but Mr Tong had snatched the phone from their hand and cut the cord.
In relation to the Altercation, the Notes included the following information:109 a. Mr Tong confronted his father in the kitchen and demanded money. When his father refused, Mr Tong started swearing and shouting and picked up a knife from a kitchen drawer; b. Ms Nguyen told Mr Tong to put the knife down and when she moved between Mr Tong and his father, Mr Tong grabbed her and threw her into a wall causing her to hit her head; and c. Mr Tong then chased his father who fell over and hurt his knee and hip. Mr Tong continued to shout at his father and then ran out of the house, leaving his parents crying on the floor.110
As I will now explain, after Mr Tong’s death, both Mr P Tong and Ms Tong disputed key aspects of the information police say they obtained from them.
109 Exhibit 1, Vol. 2, Tab 12.4, Notes - Officer D Maher (22.12.18) 110 Exhibit 1, Vol. 2, Tab 12.4, Notes - Officer D Maher (22.12.18)
[2021] WACOR 41 The Tongs’ version of what was said111,112
Ms Tong says that she interpreted what her father was saying and told Officer Maher that she did not live at the family home and had simply been asked by her father to bring him to the Station.
[Emphasis added].114
Instead, Ms Tong said that her father had told her there was an argument and that Mr Tong had pushed him. She said her father told her he was “really scared” and had seen Mr Tong go into the kitchen where he thought Mr Tong would “grab a knife”. Despite the fact that neither Ms Benjafield nor Officer Maher made a note of this, Ms Tong insisted that this is what she told police at the Station.116
At the inquest, Ms Tong agreed that her father told her that during the Altercation Mr Tong had pushed both him and Ms Nguyen and “then we fall”. She also recalled that on the way to the Station, her father had told her that Ms Nguyen had hurt her head when she fell. Despite this, Ms Tong denied telling police anything about her parents’ injuries, although she agreed she did tell police that Mr Tong had pushed her parents. Ms Tong also recalled telling police that her father had said Mr Tong damaged phone lines at the family home and that her father had run from his house and come to hers.117
At the inquest, Ms Tong vehemently denied telling police that Mr Tong had told family members he would kill his mother and police if police came to the house.118 Ms Tong was asked if she was certain that she had not said this and her reply was “Yes, No, absolutely not. No.” Ms Tong further denied saying anything about threats Mr Tong may have made.119
At the inquest Ms Tong similarly denied telling Officer Maher that Mr Tong had been carrying a knife in the kitchen and contrary to what Ms Tong had just said she told Ms Benjafield, Ms Tong’s response was: I didn’t say that he has - he carried a knife. What happened, as I remember, [was] that my father was scared that he [i.e.: Mr Tong] went into the kitchen and tried to fetch a knife, but actually my father didn’t see any knife.120 116 ts Ms Tong (21.09.21), p15 117 ts Ms Tong (21.09.21), pp13, 16-17, 18 & 19 118 ts Ms Tong (21.09.21), p16 119 ts Ms Tong (21.09.21), p17 120 ts Ms Tong (21.09.21), pp 16 & 17
At the inquest, Ms Tong also claimed that when speaking with Officer Maher, her level of English was “not that good to answer him correctly what happened really”. When it was put to Ms Tong that Officer Maher’s notes of their interview included a passage to the effect that Mr Tong had told his family that if they called police, he would kill the family and the police and burn the house down, Ms Tong’s response was: “I don’t know about it”.121
Although Ms Tong conceded that she told Officer Maher that both her parents had been pushed by Mr Tong, she denied saying anything about their injuries. Nevertheless, Ms Tong agreed that she was worried about her mother and that her father had told her that Ms Nguyen was “okay now”.
In his police statement (prepared with the help of a professional Vietnamese interpreter) Mr P Tong disputed several aspects of the notes taken by Officer Maher and claimed that:
• Mr Tong had never demanded money from NH or AH;
• Mr Tong had never chased him or Mr Tong’s brother with a knife;
• He had never seen Mr Tong threaten anyone with a knife;
• He did not see Mr Tong pick up a knife from the kitchen drawer;
• He did not see Mr Tong grab a knife or other weapon;
• He never said Mr Tong had a knife and didn’t know why Ms Tong said this;
• He did not say the home phone line had been cut but did say it didn’t work; and
• He did not say Ms Nguyen needed an ambulance.122,123
[2021] WACOR 41 Comments about the information police received from Ms Tong
Having carefully considered the available evidence, I have concluded that Ms Tong’s recollection of what she told police at the Station on 22 November 2018 is flawed and incomplete. For reasons I will now explain, I prefer the evidence of Ms Benjafield, Officer Briggs and Officer Maher.
In expressing this conclusion, I wish to emphasise that I am not being critical of Ms Tong. She was doing her best to interpret her father’s responses to police questions in very difficult circumstances. Mr P Tong was an elderly man who had been assaulted and he was clearly agitated by his circumstances. Further, Ms Tong was obviously concerned about the extent of the injuries to her parents following the Altercation and was doing her best to help her father explain this situation to police.
Even if Ms Tong’s level of English is of a higher standard than she claimed at the inquest, at the relevant time she was acting as her father’s interpreter in very difficult circumstances. For reasons I will explore later in this finding, it was inappropriate for her to have been placed in this position.
In concluding that the evidence of Ms Benjafield, Officer Briggs and Officer Maher is to be preferred over that of Ms Tong in relation to what police were told at the Station, I am mindful of the fact that Ms Benjafield and Officer Maher made notes about what Ms Tong told them. On the other hand, Ms Tong relied on her memory of traumatic events and on the evidence before me, was clearly concerned that members of her family blamed her for Mr Tong’s death. It is therefore understandable that Ms Tong might seek to minimise the seriousness of the information she was relaying from her father to police at the Station.
If I were to accept that Mr P Tong did not tell police (via Ms Tong ) that Mr Tong had threatened to kill family members and/or police if police attended the family home, then I would have to find either that police were mistaken about what Ms Tong had told them or had made this evidence up, presumably to retrospectively explain the nature of the police response in this case.
Dealing with the first of these possibilities, Mr Tong’s threats was reportedly conveyed to Ms Benjafield, Officer Maher and Officer Briggs all of whom have a clear recollection of being told this. The threat is so detailed and bizarre, that in my view, it is inconceivable that three staff at the Station could each have been mistaken about these words being said, even allowing for the language difficulties I have referred to.
As I have explained, the evidence about Mr Tong’s threat to kill his mother and/or the police was crucial to the way police responded to Mr P Tong’s report of the Altercation. Attending police were obviously vitally concerned about Ms Nguyen’s safety when they arrived at the Tong family home, precisely because of Mr Tong’s threat.
It would be natural for Ms Tong to be concerned about whether anything she relayed to police from her father was in any way related to Mr Tong’s death. In addition, there is evidence before me that after Mr Tong had been shot and killed, Ms Tong appeared to be very concerned that her family blamed her for his death, in the sense that had she not taken Mr P Tong to the Station, police would never have attended the Tong family home.
As I will describe in more detail later, before leaving the Station carpark, Ms Tong asked for written confirmation that she had not been an eyewitness to any of the events involving Mr Tong’s death. This strongly suggests that Ms Tong was motivated by a desire to avoid any suggestion that she was responsible for her brother’s death.
On any reasonable view of the evidence, it is obvious that Ms Tong had nothing to do with her brother’s death. She was clearly trying to help her father when she took him to the Station and acted as his interpreter. She was not to know how events would unfold or that her brother would be killed.
In all of the circumstances and given the time that has passed since Mr Tong’s death, it is completely understandable that Ms Tong’s recollection of these terrible events should be found wanting.
For example, at the inquest Ms Tong was confused about whether she had spoken to Ms Benjafield, when CCTV footage from the Station showed them speaking for several minutes. Ms Tong also unable to recall exactly what she told Officer Maher when she answered his questions.126
The second possibility is that police made up the evidence about Mr Tong’s alleged threats, presumably to justify their subsequent response. However, the evidence before me makes it quite clear that reports of the threats allegedly made by Mr Tong were recorded on CAD and broadcast over the police radio before police attended the Tong family home, and therefore before Mr Tong was shot.
Quite apart from the fact that there is no evidence whatsoever that any of the police involved in this matter have acted dishonestly, in my view it would be nonsensical to assert that Mr Tong’s alleged threats were fabricated before his death because at that time, the supposed lie would not have benefitted police in the slightest.
Therefore, on the basis of the evidence before me, I have concluded that the information police entered into the CAD system and broadcast on the police radio came from either Mr P Tong via Ms Tong or from Ms Tong herself. I therefore find that police were told that Mr Tong had threatened to kill his mother and police if they attended the Tong family home and as I have explained, the subsequent police response was primarily shaped by concerns that Mr Tong’s mother was in imminent danger.
I have been unable to determine why key elements of the information given to the police by the Tongs turned out to be incorrect. It is possible that Ms Tong was mistaken about what her father was telling her and/or that either or both of the Tongs may have exaggerated their version of events to ensure Mr Tong was removed from the family home.
126 ts 21.09.21 (Ms Tong), pp 14 & 17
[2021] WACOR 41 Family members describe police arriving at the Tong family home127,128,129,130
In her statement to police, Ms Nguyen says that on the afternoon of 22 November 2018, she was at the family home with her four grandchildren when police officers knocked on the front door. Her granddaughter (IT) opened the door and two police officers (Officers Dellar and Bogunovich) came into the loungeroom. Ms Nguyen says the officers did not say anything to her and she watched as they walked past her with their pistols drawn. A short time later, Ms Nguyen saw two other police (Officers McArthur and Parker) in her backyard and they walked towards the rear sliding door.
As she saw Officers Dellar and Bogunovich walk towards AH and NH’s bedroom, Ms Nguyen said “No, no, no, no” and then pointed towards Mr Tong’s room. She says she lost sight of the officers as they walked down the hallway towards his bedroom and called out in Vietnamese “Ly, the police are looking for you”. Ms Nguyen says a short time later she heard a noise like a door shutting and then what sounded like three gunshots.131
NH and AH give similar accounts in their statements to police. Both say they were in their shared bedroom at about 4.30 pm, when they heard footsteps and male voices inside the family home. A short time later, NH noticed the handle of their locked bedroom “jiggling” and heard a raised voice say: “This is the police open up”.132,133
NH and AH froze and then heard one or two “thuds” which sounded like “a hard force hitting the door”. NH could hear raised voices coming from near Mr Tong’s room but was unable to make out what was being said.
Both NH and AH then heard what sounded like two gunshots fired in quick succession, followed by a third.134,135 127 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 88-134 128 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 47-75 129 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 22-43 130 Exhibit 1, Vol. 2, Tab 14.1, Statement - Sen. Const. D Parker (23.11.18), paras 50-87 131 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 104-106 132 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 47-50 133 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 22-25 134 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 51-57 135 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 25-27
AH heard a male voice say: “Tom are you OK?” and NH heard police officers panting and saying something about CPR. Police subsequently spoke to NH and AH through their locked door and told them to stay in their bedroom, which they did. After about two hours, police helped AH and NH climb out of their bedroom window and they were both assessed by ambulance officers.136,137
Meanwhile, Ms Nguyen says she took JT and IT through the sliding door at the rear of the house and waited with them in the backyard. About five minutes later, Ms Nguyen says she heard Mr Tong say: “Mummy, mummy cigarette” and says she replied: “Yes I will get you a cigarette”. With great respect to Ms Nguyen, this evidence cannot be correct, because at the time Ms Nguyen says she heard Mr Tong’s voice, he was already dead.138
Ms Nguyen says she asked to go back inside the house and was told this was not possible. An ambulance arrived and Ms Nguyen told ambulance officers she had a headache and a heart condition. At about 5.00 pm, Ms O Tong and Mr Tang arrived home from work and a short time later, Mr Tang told her that Mr Tong had died.
Police version of attendance at the Tong family home139,140,141,142,143,144145,146
At 4.18 pm, Officer Briggs made the following radio broadcast to the POC: “Yeah, can we get a car going priority 2 to 1 Yenisey Crescent, Beechboro for a violent domestic. Should be a male offender and mother still in the house we have the father and daughter at address. We’ll put a job on.147,148 136 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 53-73 137 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 30-43 138 Exhibit 1, Vol. 2, Tab 1, Statement - Ms T Nguyen (01.12.18), paras 113-122 139 Exhibit 1, Vol. 2, Tab 10.1, Statement - Sen. Const. S Briggs (23.11.18) 140 Exhibit 1, Vol. 2, Tab 12.3, Statement - Const. D Maher (31.12.18) 141 Exhibit 1, Vol. 2, Tab 14.1, Statement - Sen. Const. D Parker (23.11.18) 142 Exhibit 1, Vol. 2, Tab 15, Statement - FC Const. D McArthur (23.11.18) and ts 21.09.21 (McArthur), pp93-106 143 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19) 144 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19) and ts 22.09.21 (Dellar), pp153-170 145 Exhibit 1, Vol. 2, Tab 48.1, Statement - Sgt. G Bogunovich (23.11.18) and ts 22.09.21 (Bogunovich), pp121-149 146 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21) 147 Exhibit 1, Vol. 1, Tab 19, Police Operations Communications Transmissions, serial 7 148 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p91
After making this broadcast, Officer Briggs returned to the front counter and asked Ms Tong to confirm that the VRO related to Mr Tong and that the only occupants of the Tong family home were her mother and Mr Tong. Ms Tong confirmed this was the case and at 4.20 pm, Officer Briggs used his computer to create a “CAD job”149. He updated the CAD job (as further information was obtained from the Tongs as follows:150,151 a. 4.22 pm: father and daughter have just attended the station after being involved in a violent DVI (domestic violence incident) with a son TONG MINH LY;152 b. 4.23 pm: mother is still in the house with the POI (person of interest); c. 4.25 pm: mother doesn’t speak English, the POI does (16:25:17); and POI was armed with a knife or similar (16:25:38); d. 4.26 pm: VRO in place; and e. 4.33 pm: from the father/daughter at the Midland Station ascertained mother at the house has a head injury from being pushed into a wall and has sustained a large lump to her head and she was unsteady on her feet. SJA (St John Ambulance) to be arranged.
At 4.22 pm, Officer Briggs made a radio broadcast suggesting that attending police meet at a rendezvous point (RV point) before attending the Tong family home. His broadcast was as follows: Yeah, the cars might want to liaise somewhere. Apparently, he’s told the family if the police rock up, he’ll kill mum and then come out and kill the police. I put his name on the job for officers to look him up.153 149 CAD or “Computer Aided Despatch” is the system used by the Police to manage responses to situations.
150 Exhibit 1, Vol. 1, Tab 20.1, Incident report (LWP18112200844038, 22.11.18), pp1-4 151 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp91-96 and ts 21.09.21 (Briggs), pp30 & 33-34 152 Officer Briggs said that the suspect’s surname is entered first: ts 21.09.21 (Briggs), p33 153 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p92
Officer Maher says that after Ms Tong mentioned the head injury sustained by Ms Nguyen during the Altercation, he told Officer Briggs that an ambulance would be needed. Officer Briggs instructed him to contact the POC by radio and make the necessary arrangements and Officer Maher subsequently did so.154
Meanwhile, Officers Dellar and Bogunovich, who were stationed at the Kiara Police station, heard the radio broadcast and responded to the job.
However, it appears that as they walked to their police vehicle, the officers did not hear Officer Briggs’ subsequent radio transmission and were therefore unaware of his suggestion to proceed to a RV point.
As Officer Bogunovich drove towards the Tong family home, Officer Dellar (who was in the passenger seat), was operating a terminal connected to the Police in-car computer system in use at the time (TADIS). Officer Dellar described TADIS as “a cumbersome and outdated piece of technology” which, as I will discuss later, has since been replaced by a mobile app called One Force Core. Officer Bogunovich called TADIS “slow and cumbersome”.155,156
In any event, in addition to the information that had been broadcast on the police radio, TADIS advised that a VRO was in place and that the male suspect’s name was “Tong Ly”. Although Officer Dellar searched on TADIS he was unable to find Mr Tong because he had assumed that “Tong” was the suspect’s first name. As a result of being unable to find Mr Tong on TADIS, Officer Dellar was unaware of Mr Tong’s age or criminal history. Officer Dellar was also unable to access any alerts about Mr Tong in the police system.157,
In fact, there were police alerts for Mr Tong including: “may inflict selfinjury”; “talk of self-harm”; “may possess syringe or use syringe on police”; and “may carry a weapon (knife, club etc)”.158 154 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp95-96 155 See discussion of One Force Core later in this finding.
156 ts 22.09.21 (Dellar), pp153-154 and ts 22.09.21 (Bogunovich), pp115-116 157 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20), p4 and ts 22.09.21 (Dellar), p156 158 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p9
Meanwhile, two other officers based at the Kiara Police station (Officers Parker and McArthur) had also responded to the job. At 4.24 pm, Officer McArthur called the Station seeking further information about the incident and spoke to Officer Maher. Based on what Ms Tong had told him, Officer Maher advised Officer McArthur that there were no firearms at the home and that Mr Tong had earlier cut his father on the leg with a knife and shoved his mother against a wall.
Officer Maher also said that Mr Tong had told family members that if police attended, he would kill his mother and police. Officer Maher later denied telling Officer McArthur that Mr Tong was holding Ms Nguyen hostage, although this is something which Officer McArthur recalls being told.159,160
As Officer McArthur was relaying what he had been told to Officer Parker, Officer Maher sat with the Tongs in the Station’s foyer area and asked them questions about the Altercation. As noted, as Ms Tong translated for her father, Officer Maher took notes.
Meanwhile, as Officer Bogunovich drove along Benara Road in Beechboro and he and Officer Dellar saw stationary police vehicles on the side of the road about 125 metres east of Danube Avenue. According to Officer Dellar, there appeared to be some confusion as to whether police were to proceed directly to the Tong family home or were to gather some distance away at an RV point.
Nevertheless, there had been a radio broadcast at 4.26 pm from the POC confirming the “meeting point” and advising police vehicles not to “head directly to the address”. This was followed by the following broadcast from the POC at 4.27 pm: Yeah, Roger. You’re heading to my domestic there. If you can meet up with the guys at Benara Road crosses with Danube Ave that would be great.161,162 159 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp36 & 93 160 ts 21.09.21 (Maher), pp68 & 70-71 161 Exhibit 1, Vol. 1, Tab 19, Police Operations Communications Transmissions, serial 95 162 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp94-95
In addition, a CAD entry by the POC at 4.28 pm stated: “All veh’s (vehicles) to meet at Benara Rd/Danube Av”. Meanwhile, Officer Bogunovich had turned into Danube Avenue and pulled up about one block from the Tong family home as Officer Dellar made a radio broadcast asking if the plan was for police to gather at an RV point.163,164
For their part, Officers Parker and McArthur had pulled over on Benara Road to organise an RV and Officer Dellar heard Officer Parker respond to his radio call with: “Yeah, Tom. RV [is] over here”.
Officer Dellar took this to be a reference to the shoulder of Benara Road where he and Officer Bogunovich had seen several police vehicles moments before.165,166 In the end, Officers Bogunovich and Dellar did not go to the RV, and with the benefit of hindsight, Officer Bogunovich conceded that this would have been appropriate.167
Officer Maher: Yeah. Roger that. We’ve just got the witnesses here who said she had been thrown head first into a wall.168,169
In fact, the source of Officer Maher’s information about HK103 appears to have been the POC radio broadcast at 4.21 pm where a POC operator said: “VKI Hotel Kilo 103 or any other vehicles heading back up for a 229 in Beechboro”. In any event, at 4.32 pm, when Officer Parker asked the POC: “Is there already vehicles at the job?” a POC operator replied: “Apparently Kilo 103 is off”. Exactly where the POC operator obtained this information about the whereabouts of HK103 is unclear.171,172,173
Officer Dellar says he was still trying to find Mr Tong on TADIS when he heard the radio broadcast about HK103 being at Tong family home. As it later transpired, this information was incorrect and at the relevant time, HK103 was actually parked, unoccupied, at the Kiara police station.174 The false broadcast about HK103’s location was clearly significant and was described by Officer Dellar as the “sliding doors moment”175.
Given Mr Tong’s apparent threat to kill his mother and police if police attended the family home, in a very real sense, the broadcast about HK103’s location fundamentally altered the police response. That is because it caused officers to become gravely concerned for Ms Nguyen’s safety and the occupants of HK103 (who police had not been able to contact).
These concerns led police to leave the RV point and proceed directly to the Tong family home. Thus, any chance to plan and coordinate a police response at the RV point was lost, as was any prospect of deploying the Tactical Response Group (TRG) to deal with the situation.176,177,178
For the reasons I have just explained, on hearing the broadcast about HK103, Officers Dellar and Bogunovich decided to proceed directly to the Tong family home, because as Officer Dellar put it: 171 Exhibit 1, Vol. 1, Tab 19, Police Operations Communications Transmissions, serials 35 & 127-128 172 Exhibit 1, Vol. 1, Tab 19, Police Operations Communications Transmissions, serials 123-125 173 ts 21.09.21 (Maher), pp80-81 174 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p90 175 ts 22.09.21 (Dellar), pp159-160 176 ts 22.09.21 (Bogunovich), p123 177 ts 22.09.21 (Dellar), pp177-178 178 ts 22.09.21 (Markham), pp211-212
[2021] WACOR 41 From this moment, I was acting intuitively and swiftly to try and protect the mother from an imminent threat to life, given the suspect’s overt threat to her life.179,180
However, as he turned into Yenisey Crescent, he and Officer Dellar realised that they were in fact the first police vehicle at the scene.
Officer Dellar advised the POC of this fact at 4.32 pm.181
Officer Dellar also heard the radio broadcast requesting an ambulance for Mr Tong’s mother who had reportedly been thrown into a wall.182
As he approached the front of the home, Officer Dellar could see the silhouette of a person through the closed screen door. The person did not appear to be armed or threatening so Officer Dellar holstered his pistol before asking for the locked door to be opened. The door was opened by IT and Officers Dellar and Bogunovich went inside.183
Officer Dellar was approached by an elderly woman (Ms Nguyen) who he assumed was Mr Tong’s grandmother. Officer Dellar had been unable to determine Mr Tong’s age using TADIS and had relied on his experience of other incidents to estimate that Mr Tong was in his late teens or early 20’s, meaning Mr Tong’s mother would be in her 30’s or 40’s. An ambulance had been requested for “the mother” and the elderly lady Officer Dellar encountered was apparently uninjured.184,185 179 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 100 and ts 22.09.21 (Dellar), pp161 180 ts 22.09.21 (Bogunovich), pp121-123 181 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p96 182 ts 22.09.21 (Bogunovich), pp124 & 147 183 See: s35 of the Criminal Investigation Act 2006 (WA) 184 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 51-52 185 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p75
For all of these reasons, Officer Dellar believed that Mr Tong’s mother was still in immediate danger and “possibly under the control of the suspect”.186,187
In any event, Ms Nguyen seemed very frightened and was grabbing at Officer Dellar’s arm. Officer Dellar said: “What happened? Where’s Tong”, but was unable to understand Ms Nguyen’s response because she was not speaking English. Neither of the small children present responded either. Officer Dellar then asked: “Is anyone else in the house” and one of the children pointed to the hallway towards a room at the back of the house. Officer Dellar assumed the child was pointing to Mr Tong’s bedroom, where he thought Mr Tong was located, possibly with his mother as a hostage.188
Both Officer Dellar and Officer Bogunovich directed Ms Nguyen and her grandchildren to leave the house through the front door. Officer Dellar said he did this because he wanted to ensure their safety because at that stage Mr Tong’s location had not been established.189 Meanwhile, when officers at the RV point realised that Officers Bogunovich and Dellar had proceeded to the Tong family home, they raced there in order to assist.190
In a letter to Inspector Scantlebury (Officer Scantlebury), as he then was, Officer Dellar says that as Ms Nguyen and the two children exited the house, he saw Officers MacArthur and Parker arrive. However, at the inquest, Officer Dellar conceded that although he had assumed that Ms Nguyen and the two small children had gone outside, he did not actually see them do so.191,192
At the inquest, both Officer Dellar and Officer Bogunovich properly conceded they should have ensured that Ms Nguyen and the two children were outside the home. There were at least two good reasons to do so.
186 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 51-52 187 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p75 188 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 53-55 and ts 21.09.21 (Dellar), p165 189 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19) , paras 57-58 190 ts 21.09.21 (McArthur), pp92-94 191 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p4 192 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 55-58
First, there was the risk that Ms Nguyen and/or the children might have been harmed inadvertently by police action. Second, because civilians (and especially children) might react unpredictably and there was a risk that police operations may have been interfered with. Apart from Ms Nguyen and her two small grandchildren, AH and NH were also in the house, but their presence was not detected until later.193
Officers Parker and McArthur arrived at the scene at 4.34 pm,194 and because they realised police were already at the front of the home, they went to the backyard to create a cordon in case Mr Tong tried to escape.
During this time, Officers Parker and McArthur had their Tasers drawn because of the risks they perceived.
Officer McArthur said he felt drawing his Taser in these circumstances was appropriate because: I was also mindful that despite the information being (Mr Tong) was armed with a knife, being outside the house I had room to move away and put distance between myself and (Mr Tong).195,196
Meanwhile, Officer Dellar says he was “anxious to locate the mother and extract her to safety” and with this in mind, he walked towards the hallway with his pistol drawn, followed by Officer Bogunovich. The hallway was dark and narrow and although he was feeling uncomfortable about the situation, Officer Dellar said he felt an overwhelming desire to protect any persons who may be in the house.197
After seeing an officer from the Police Canine Unit arrive and go into the backyard, Officer McArthur walked through the front door of the home and moved behind Officer Bogunovich, who was following Officer Dellar down a hallway towards what was assumed to be Mr Tong’s bedroom.
Officer McArthur’s account of subsequent events is consistent with the evidence of Officers Dellar and Bogunovich.
193 ts 21.09.21 (Bogunovich), p132; ts 21.09.21 (Dellar), p166; and ts 22.09.21 (McArthur), p103 194 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p97 195 Exhibit 1, Vol. 2, Tab 15, Statement - FC Const. D McArthur (23.01.18), para 39 196 ts 21.09.21 (McArthur), pp96-97 197 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 58
Officer Dellar tried the door to NH and AH’s bedroom but it was locked and when he glanced back, he realised that Officer Bogunovich had drawn his pistol. The officers continued towards Mr Tong’s bedroom door which was on the left-hand side of the hallway and Officer Dellar called out: “Tong, it’s the Police mate. We need you to come out and have a chat with us”.198
There was no reply and Officer Bogunovich then called out: “You need to come out and show us your hands” and a male voice inside the room called out: “Why?”, in what Officer Dellar described in his letter to Officer Scantlebury as “an aggressive snappy tone”.199
In his police statement, Officer Bogunovich says that Mr Tong’s response was in fact “what, what”, and that when he repeated his order for Mr Tong to come out and show his hands, Mr Tong began yelling unintelligibly.200
Officer Dellar said that in his mind, even though although he couldn’t hear signs of a struggle or a female voice, this did not mean that “the mother” was not in Mr Tong’s bedroom. This is because she might have been intimidated by Mr Tong and thus too scared to respond or have been incapacitated in some way.201 Officer Dellar said it had become clear that the male (i.e.: Mr Tong) was not going to speak to police and Officer Dellar was concerned about why he was refusing to open the door.
A short time later, Officer Dellar was alarmed to hear “rustling and banging sounds” coming from inside Mr Tong’s bedroom. In his IAU interview Officer Dellar says he thought there was a high probability that the noises related to some sort of weapon, although he was unsure what type. At the inquest, he described the noises as someone rummaging through drawers or moving furniture.202,203 198 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 62 199 In his statement to the Police, Officer Dellar described the tone as “aggressive and hostile”.
200 Exhibit 1, Vol. 2, Tab 48.2, Statement - Sgt. G Bogunovich (27.11.18), para 77 201 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 62-63 202 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p78 203 ts 22.09.21 (Dellar), p170
Officer McArthur thought the noises sounded like “items being moved around and clanking together.204,205,206,207
Officer Dellar said Officer Bogunovich’s facial expression showed that he was also concerned about what was going on in the bedroom and he heard Officer Bogunovich say: “He’s doing something in there”.208,209 Officer Dellar was becoming increasingly concerned that the life of Mr Tong’s mother was in imminent danger and using “non-verbal communications” he and Officer Bogunovich agreed that he (Officer Dellar) would open Mr Tong’s bedroom door.
With Officer Bogunovich hugging the wall at the hinge side of the door, Officer Dellar stood directly in front of the door and used the handle to quietly open it. He then used his left foot to push the door open so he could see into the room.210 As I will explain later in this finding, this was actually a very dangerous thing to do and placed Officer Dellar in the socalled “fatal funnel”. At the inquest, Officer Dellar conceded that this had been a mistake but explained that he had been acting instinctively.211
In any event, the door swung open and collided with some furniture, making a loud noise before swinging back. The loud noise took Officer Dellar by surprise and “caused a noticeable spike in the tension in the house”.212 Shortly after the door opened, Officer Dellar heard Mr Tong yelling aggressively and he (Officer Dellar) began backing away towards the open bathroom door which was opposite.
204 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 64 205 Exhibit 1, Vol. 2, Tab 48.2, Statement - Sgt. G Bogunovich (27.11.18), paras 84-88 206 Exhibit 1, Vol. 2, Tab 15, Statement - FC Const. D McArthur (23.11.18), para 58 207 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p64 208 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 63 209 Exhibit 1, Vol. 2, Tab 48.1, Statement - Sgt. G Bogunovich (23.11.18), para 57 210 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21), paras 102-104 and ts 22.09.21 (Dellar), p172 211 ts 22.09.21 (Dellar), p172 and see also: ts 22.09.21 (Markham), pp213 212 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 69 and ts 22.09.21 (Dellar), p173
Officer Bogunovich was unable to see Mr Tong’s arms or lower body because a chest of drawers was blocking his view, but observed that: “The male had a crazy look on his face and I thought he’s about to go off”.213
I was scared of what could happen.214,215
Officer Dellar said he felt the situation had “just escalated and become extremely dangerous” and that he and Officer Bogunovich were now “in serious and immediate danger”.216 As Officer Bogunovich yelled: “Police”, Mr Tong started screaming and as Mr Tong started moving towards his bedroom door, Officer Bogunovich called out “he’s coming”.217
Suddenly Mr Tong ran out of his bedroom straight towards the officers “at considerable speed” with “a look of fury and aggression on his face”.
Mr Tong was still yelling and Officer Dellar says he saw Mr Tong’s “right arm come up in an upwards motion”. Mr Tong had pushed through the door as he made his way out of his bedroom and was heading straight for Officer Bogunovich, who thought that Mr Tong was about to kill him.
Officer Bogunovich says he saw Mr Tong’s left arm raised but that the bedroom door blocked his view of Mr Tong’s right arm.218,219,220,221 213 Exhibit 1, Vol. 2, Tab 48.1, Statement - Sgt. G Bogunovich (23.11.18), paras 63-66 214 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21), paras 114-116 215 ts 22.09.21 (Bogunovich), p142 216 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 70 217 Exhibit 1, Vol. 2, Tab 48.1, Statement - Sgt. G Bogunovich (23.11.18), paras 67-68 218 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 73 219 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p6 220 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (23.11.18), paras 125-126 221 ts 22.09.21 (Bogunovich), p173
At the inquest, Officer Bogunovich and Officer Dellar were each asked whether it was possible that Mr Tong had both arms raised as if in surrender. Both officers rejected this possibility and reiterated the fact that Mr Tong was yelling incoherently as he rushed towards them, showing no signs of surrender. In fact, Officer Bogunovich said that when the bedroom door opened, Mr Tong “came out like a bull out of a gate”.222,223
Officer Bogunovich says he thought Mr Tong was coming straight for him and in accordance with his training, he stepped sideways to get out of Mr Tong’s way. Officer Bogunovich says that although he did not see a knife, based on the information gleaned earlier from TADIS, he thought Mr Tong was about to attack him and stab him with a knife.
Officer Bogunovich says as he stepped back towards the bathroom doorway, he ended up just in front of and to the left of Officer Dellar.224
In his letter to Officer Scantlebury, Officer Dellar describes what happened next: I didn’t have any opportunity to see what he [Mr Tong] had in his hand, because he was moving at speed at me and I was in a confined space with no option for retreat or escape, and in poor lighting conditions. In that moment, based on an assessment of the information provided to me to that point and the conduct of the male, I firmly believed that he was armed with a knife and was about to stab me.225,226
Officer Dellar said he had never before felt that level of concern for his personal safety and that: “In that split second, I thought I was not going to walk out of that house alive”.227 He said he believed he had no other option than to discharge his pistol and so he fired three shots at Mr Tong “to stop the immediate threat” to his (Officer Dellar’s) life.228 222 ts 21.09.21 (Dellar), p174 and ts 21.09.21 (Bogunovich), pp143 & 149 223 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp66 & 78 224 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (23.11.18), paras 127-133 225 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), pp6-7 226 ts 22.09.21 (Bogunovich), pp174-176 227 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p7 228 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p7
As to whether or not Mr Tong was armed, Officer Dellar said: It was dark in the house and he [Mr Tong] ran at me very quickly in very close quarters. I did not positively sight a knife in his hand, nor did I identify him to be empty handed, however, I was convinced the suspect was armed with a knife based on the information given to us and his behaviour throughout our interaction. I made a literal splitsecond decision to protect myself in what I perceived to be a life and death situation.229
In his IAU interview, Officer Dellar was asked why he hadn’t seen Mr Tong holding a weapon. Officer Dellar said he had information that Mr Tong was armed with a knife which he had threatened to use and said: “I didn’t positively sight a knife in his hands, but I did not positively identify that he was not holding a knife either”. In his IAU interview, Officer Bogunovich said he suspected that he would have discharged his pistol had Officer Dellar not discharged his.230,231 The aftermath of Mr Tong’s shooting232,233,234,235,236,237,238
After being shot, Mr Tong fell backwards bleeding profusely.
Officer Dellar holstered his pistol and donned rubber gloves before providing first aid. Officer Bogunovich, who was assisting with first aid, asked Officer Dellar if he was “OK” and Officer Dellar replied “Ahh fuck” and appeared to be in shock.239
Meanwhile, at about 4.35 pm, Officer McArthur made a radio broadcast to the POC that: “We’ve had shots fired here. We need an ambulance priority 1, all officers are OK”. The POC asked for clarification of this information and Officer McArthur responded: “I believe the POI has been shot. All officers are OK”.242,243,244
At about this time, Officer Dellar yelled for someone to call an ambulance and was told this had already been done. He then started looking for the knife he assumed Mr Tong was carrying. Officer Dellar says this was the first opportunity he was given to assess whether Mr Tong was armed.245 In his police statement, Officer Dellar made this observation about his thought process at that time: This was the moment it dawned on me that Mr Tong may not have actually had a knife in his hand at the moment he emerged from the room and ran towards me. I started to feel a nauseating sense of horror and dread. I called out multiple times to my colleagues to the effect of “where’s the knife”.246
Shortly afterwards, Officer Dellar was escorted outside and Officer Parker (who had been in the backyard) came into the house and shepherded Ms Nguyen and her two grandchildren into the carport. In his IAU interview, First Class Constable Wigger (Officer Wigger), another of the officers at the scene said Officer Dellar looked pale and was clearly in shock, and was saying: “What have I done…Am I going to get into trouble…I thought he was going to kill me”.247
Meanwhile, Officer Bogunovich spoke with AH and NH and told them to try to get out of their bedroom window because he did not want them to see Mr Tong’s lifeless body in the hallway.
At 4.37 pm, Officer Wigger made the following broadcast to POC: 242 Exhibit 1, Vol. 2, Tab 15, Statement - FC Const. D McArthur (23.11.18), paras 67-70 243 Exhibit 1, Vol. 2, Tab 43, Statement - FC Const. J Parker (23.11.18), para 3 244 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p96 245 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p8 246 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 81 247 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p56
[2021] WACOR 41 POI has been shot multiple times inside the address where we are at.
No police officers are injured. SJA should be coming here P1 if they haven’t been called already. I don’t think he’s going to survive the gunshot wounds. So we’ll declare this a PFA (protected forensic area) and isolate the family from the area.248
At 4.43 pm, Officer Wigger advised the POC: “He’s dead” and an update to the CAD job by the POC at 4.43 pm stated: “2 x chest, 1 x arm. POI reported deceased”.249,250 It follows that from this point, the Police were aware that Mr Tong had been shot and killed. Meanwhile, at 4.49 pm, the first of two ambulances arrived at the Tong family home and at 4.55 pm, an officer from that ambulance confirmed that Mr Tong had died.251,252,253,254
After he was escorted outside, Officer Dellar was examined by an ambulance officer from the second ambulance that had arrived at the scene at about 4.51 pm. The account Officer Dellar gave to an officer from that ambulance was consistent with the contents of his letter to Officer Scantlebury, his police statement and his evidence at the inquest.255 The SJA patient care record relevantly notes: Officer (i.e.: Officer Dellar) stated he had entered the home and when he opened door to back bedroom was charged by unknown male.
Officer states discharged forearm approx. 2 or 3 times.256
Ms O Tong told Officer Waldeck that she and Mr Tong were close and that her father (Mr P Tong) blamed Mr Tong for “anything that went wrong in the house”. She said her sister (Ms Tong) and her father “lie and exaggerate about issues” and that the family “felt safe” living with Mr Tong. Interestingly, Ms O Tong also said that sharp knives were not kept at the house “because of the children”. By way of contrast, Mr Tang (Ms O Tong’s husband) told Officer Waldeck that Mr Tong “had been causing trouble” for the family for a long time.258
Some hours later, Officer Waldeck and another officer spoke to Ms Tong at her home. Ms Tong appeared to be very upset and was crying as she told officers that her family “blamed her” for Mr Tong’s death because she had taken her father to the Station. Ms Tong said Mr Tong had caused trouble for her family for years and had demanded money from family members.259
Ms Tong also told the officers her father had obtained the VRO to protect himself from Mr Tong and her family were scared of Mr Tong. She said her father had encouraged family members to apply for restraining orders and that her father had come to her house earlier that day asking to be taken to a police station because “other family members refused”.260 Events back at the Station261,262
While police were at the Tong family home, Officer Maher was back at the Station speaking to the Tongs. Shortly after Officer McArthur’s radio broadcast 4.35 pm, Officer Briggs took Officer Maher aside and told him “[S]hots have been fired and they have shot him”. Officer Briggs made it clear that this information was for Officer Maher’s ears only and told him to turn his radio off and take the Tongs into the Station’s interview room.263,264,265 258 Exhibit 1, Vol. 2, Tab 44, Statement - Det. FC Const. K Waldeck, paras 13-21 259 Exhibit 1, Vol. 2, Tab 44, Statement - Det. FC Const. K Waldeck, paras 26-29 260 Exhibit 1, Vol. 2, Tab 44, Statement - Det. FC Const. K Waldeck, paras 26-29 261 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), paras 50-72 262 Exhibit 1, Vol. 2, Tab 12.4, Notes - Officer D Maher (22.12.18) 263 Exhibit 1, Vol. 2, Tab 10.1, Statement - Officer S Briggs (23.11.18), paras 61-63 264 ts 21.09.21 (Briggs), p38-39 265 ts 21.09.21 (Maher), pp72-73
As Officer Maher walked back to the Station foyer, he made sure his police radio was off because he didn’t want the Tongs to hear any police broadcasts about Mr Tong’s death. Notwithstanding the fact that by this stage police were well aware that Mr Tong had been shot and killed, Officer Maher had been ordered by Officer Briggs to continue questioning the Tongs about the Altercation, and he did so. As already noted, as he spoke to the Tongs, Officer Maher made detailed notes of what Ms Tong told him her father was saying.266
This was an appalling position for both the Tongs and Officer Maher to have been placed in.
The Tongs had a right to be promptly informed of Mr Tong’s death. As for Officer Maher, at the time he was ordered to interview the Tongs, [first by Officer Briggs and later by Officer Benington, the acting Officer in Charge (OIC) of the Station], he was a probationary constable with less than 13-months of experience. Officer Maher told investigators from the IAU that he had never dealt with victims of a shooting before and believed any notification should be made by a senior officer. He also said he felt “overawed by the enormity of the incident and task”.267
While Officer Maher was speaking with the Tongs, Officer Briggs came into the interview room to advise that Ms Nguyen and the children at the Tong family home had not received any injuries and were “OK”.
Officer Briggs said he did not immediately notify the Tongs that Mr Tong had died because he wanted more details about the matter first, and had not done so later because he had deferred to Officer Benington.268
Officer Benington says she was briefed about the circumstances of the incident and made aware that the Tongs were in the Station being spoken to by Officer Maher. She was also told that Ms Tong was acting as interpreter for her father and that the Tongs: “may not be aware of what happened after they left the house”.272
Officer Benington says she instructed Officer Maher to continue taking notes until “further information came to light or alternative arrangements could be made” because Mr P Tong appeared to have been the victim of serious family violence.273 Thus, even though Officer Benington was well aware that the Tongs were actually in the Station, she took no immediate steps to notify them of Mr Tong’s death. Further, she instructed Officer Maher to continue speaking to the Tongs, thereby ensuring the continuation of the appalling situation created earlier by Officer Briggs.
Officer Benington said she did not immediately notify the Tongs about Mr Tong’s death because “she was not aware of what was happening at the scene and was not sure if it was appropriate at the time”. At the inquest, Officer Benington said that “trying to find out accurate information is crucial” and that she had called Senior Sergeant Stoneham (Officer Stoneham), the OIC of the Kiara Police station, who was the incident controller, a couple of times but the phone was engaged.274,275
At about 5.55 pm, Ms Tong took a call on her mobile from Ms O Tong who told her that Mr Tong had been shot and killed. Officer Maher could hear shouting during the call and when it ended, Ms Tong told Officer Maher what he already knew, namely that police had shot and killed her brother. Ms Tong says she told her father: “We done wrong thing, they’ve shot my brother”.276,277,278,279
Officer Maher left the interview room to brief Officer Benington about what had just occurred and says she told him: 272 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 9-18 and ts 21.09.12 (Benington), p48 273 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), para 17 274 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p41 275 ts 21.09.21 (Benington), pp48-50 276 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p142 277 Exhibit 1, Vol. 2, Tab 3.1, Statement - Ms T Tong (27.11.18), para 25 & ts 21.09.21 (Tong), p19 278 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), paras 59-62 279 Exhibit 1, Vol. 2, Tab 2, Statement - Mr P Tong (01.12.18), paras 139-140
[2021] WACOR 41 I will come in there and speak with the father and daughter, when I leave just try and keep taking notes adding to what you have got. When I leave I will obtain conformation of what has happened and come back in.280
Even at this point, when the Tongs were clearly aware that Mr Tong had been killed, Officer Benington did not formally notify them of what she already knew. Instead, Officer Benington came into the interview room and told Ms Tong she would “find out more information” and return shortly. Officer Maher continued to speak with the Tongs, but after that point, took no further notes because understandably, the Tongs “just wanted more information” about what had happened to Mr Tong.281,282
After leaving the interview room Officer Benington was able to contact Officer Stoneman and she sought his direction “with regards to a notification” to the Tongs. She says that it was agreed that in view of the circumstances, she would notify the Tongs of Mr Tong’s death, and she finally did so at 6.10 pm.283 Thus, the Tongs were formally advised of Mr Tong’s death, some 90 minutes after police first became aware of that fact. On any reasonable view, this is completely unacceptable.
As I will discuss in more detail later in this finding, Officers Briggs, Benington and Maher were each the subject of criticism in the IAU report for failing to uphold the Police values of openness, empathy and accountability in their dealings with the Tongs.284,285
After Officer Benington had told the Tongs that Mr Tong had been shot and killed, Ms Tong (who was understandably distraught) said that her siblings would blame her for what had happened because she had taken her father to the Station. Officer Benington says Ms Tong repeated this “several times and that appeared to be at the forefront of her concerns.286 280 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), para 66 281 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 22-25 and ts 21.09.21 (Benington), p49 282 Exhibit 1, Vol. 2, Tab 12.3, Statement - Officer D Maher (31.12.18), paras 67-68 283 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 29 284 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 29-35 285 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp138-145 286 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 31-37
But there was more to come. Even after the Tongs had said they wanted to leave the Station, they were subjected to a further indignity.
As the Tongs left the Station and headed to the carpark, Officer Benington asked Officer Maher whether the Notes had been endorsed by the Tongs.
Officer Maher confirmed the Notes had not been signed and he followed Officer Benington out of the Station to the carpark, where they spoke to the Tongs.287 Officer Benington explained what it meant to endorse the Notes and asked Ms Tong to explain to her father that the Notes contained the information which had earlier been given to Officer Maher.
In her police statement, Officer Benington says: “She (Ms Tong) translated the information and he (Mr P Tong) nodded in agreeance and signed the notes”.288 However, during her IAU interview and at the inquest, Officer Benington explained that this passage was intended to mean that Mr P Tong had been asked to endorse the Notes, not that the content of the Notes had been translated to him.
At the inquest, Ms Tong made it very clear that she did not translate the Notes and had merely signed them to confirm she was not an eyewitness.289
Ms Tong appeared to be concerned that by endorsing the notes, she was signing a formal statement as a witness and Officer Benington explained that she was under no obligation to sign the Notes and that by doing so, she would only be confirming that she had been present when the Notes were taken and had acted as interpreter for her father.
In her IAU interview, Officer Benington said that it had been “drummed” into her that notes relating to domestic violence incidents had to be signed.
This is understandable in circumstances where the complainant refuses to make a statement and police wish to ensure they are acting on credible information.
287 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 42-44 288 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 45-47 289 ts 21.09.21 (Benington), pp53-53 and ts 21.09.21 (Ms Tong), pp19-20
However, in this case, the alleged perpetrator of the domestic violence was already dead and so having the Notes endorsed was pointless.290 At the inquest, Officer Benington was unable to offer any other explanation for wanting the Notes endorsed. During her IAU interview, Officer Benington was asked whether she considered the Tongs were vulnerable people and whether her decision to have the Notes signed was the “best option”. She replied: “If I had not got them signed, we may be sitting here asking the other question, why did I not get them signed”. She also reiterated that having people endorse notes “gets drummed into you”.291,292
Officer Benington noted that Ms Tong had asked “for something in writing should she be questioned by her siblings”. Ms Tong seemed particularly keen to have official confirmation that she was not an eyewitness to the events involving Mr Tong’s death and for that reason, Officer Benington handed her a card on which she wrote “not a witness”. Although this appeared to make Ms Tong “more at ease”, she was still “worried about her siblings” but would not say why.293
Although Officer Benington conceded at the inquest that it had been pointless to ask the Tongs to endorse the Notes, she refused to concede that the Tongs could or should have been advised about Mr Tong’s death at an earlier stage. This was despite several questions from counsel assisting and me and is regrettable because it demonstrates an unwillingness to learn from past mistakes. Officer Benington claimed that she had been unable to make a notification to the Tongs at an earlier stage because she was still seeking to clarify “details” about the matter.294
At the inquest, Officer Briggs also refused to concede that he should have advised the Tongs about Mr Tongs death at an earlier stage. He said he needed to obtain additional details and had later deferred to Officer Benington because she was the acting OIC.295 290 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p42 291 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p42 292 ts 21.09.21 (Benington), p54 293 Exhibit 1, Vol. 2, Tab 50, Statement - Sgt. L Bennington (01.08.19), paras 48-52 294 ts xx.09.21 (Bennington), pp49-50, 52-54 & 55-58 295 ts 21.09.21 (Briggs), p39-42
Given that both Officer Briggs and Officer Bennington were well aware that Mr Tong had been shot, both of them claimed they needed further information before they could make a formal notification to the Tongs. I accept that the shooting incident occurred in the Kiara Police station catchment and that this may have caused some blurring of lines of communication.
Nevertheless, Mr Tong’s death was known from at least 4.43 pm, and exactly what extra information either Officers Briggs or later, Officer Benington required before the Tongs were advised of this fact was unclear to me. Obviously additional information would have been forthcoming and some, or perhaps even most of the family’s questions about Mr Tong’s death may have had to be deferred until that extra detail became clear.
At the inquest, Officer Bennington said that some family’s asked questions after being notified of a loved one’s death. Ms Western (counsel for the Police) then asked Officer Bennington whether she considered it was important to have a good understanding of “the incident and what had happened before making a notification (of the death)”, and she replied “Yes, absolutely”. However the following interchange then occurred: Coroner Jenkin: But you wouldn’t think is was necessary to get every piece of information before you made a notification would you?
Officer Benington: No.296
Although he had been following direct orders from his superiors he said with the benefit of hindsight he should have told the Tongs about Mr Tong’s death as soon he became aware of it.297 After reviewing CCV footage from the Station, Officer Maher accepted the Tongs had signed the Notes in the Station car park and said he was “not happy” with the fact that he had been involved in asking the Tongs to do so.298 296 ts 21.09.21 (Benington), pp57-58 297 ts 21.09.21 (Maher), pp73-75 298 ts 21.09.21 (Maher), pp75-76
[2021] WACOR 41 CAUSE AND MANNER OF DEATH Post Mortem Examination299,300,301
Dr McCreath found that Mr Tong had sustained three gunshot wounds.
The first wound involved his left chest, whilst the second involved his left upper arm with the round entering his left chest and ending up in his abdomen. The third wound involved Mr Tong’s left forearm, with the round entering his chest and ending up in his abdomen.
In addition to three gunshot wounds, Dr McCreath found associated damage to Mr Tong’s ribs, aorta, pulmonary trunk, lungs, liver and large bowel. Cirrhosis of the liver was noted along with multiple puncture wounds on Mr Tong’s left and right arms, and possible injection sites on his neck, all of which were consistent with the intravenous use of illicit drugs. Specialist examination of Mr Tong’s brain found evidence of an old stroke,302 which may be explained by the fact that strokes are a wellknown consequence of methylamphetamine use.303
Toxicological analysis detected the medications clonazepam, nitrazepam, olanzapine and quetiapine (and their respective metabolites) in Mr Tong’s system, along with methylamphetamine and its metabolite, amphetamine.304
Professor David Joyce (a physician and forensic toxicologist) prepared a report for the Court, in which he noted that the levels of methylamphetamine in Mr Tong’s system were: [Q]uite a lot higher than the concentrations anticipated in occasional users of the drug, notwithstanding the possibility of some post-mortem redistribution.305 299 Exhibit 1, Vol. 1, Tab 5.3, Post Mortem Report (30.11.18) 300 Exhibit 1, Vol. 1, Tab 5.2, Supplementary Post Mortem Report (29.05.19) 301 Exhibit 1, Vol. 1, Tab 9, Histopathology Report (29.05.19) 302 Exhibit 1, Vol. 1, Tab 7, Neuropathology Report (29.11.18) 303 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 12 304 Exhibit 1, Vol.1, Tab 6.1, ChemCentre Report - Final (18.12.18) 305 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 23
Methylamphetamine is a powerful, highly addictive stimulant that affects the central nervous system. It usually takes the form of a white, bitter tasting crystalline powder that dissolves easily in water and alcohol. It can be smoked, snorted, injected or taken in tablet form.306
Professor Joyce explained that methylamphetamine intoxication can manifest in several primary forms. Acute intoxication may be characterised by agitation, increased physical activity and a propensity for aggression as well as involvement in risky, reckless or violent behaviour.
Paranoid beliefs about others are common and intoxicated persons can become delirious and exhibit confusion and bizarre behaviour.307
The term agitated or excited delirium (ED) may also be applied to this condition, although there is some controversy about what this term actually means. One definition of ED is as follows: Agitated or excited delirium is an acute, transient disturbance in consciousness and cognition that involves combative and/or violent behaviour…This disturbance in cognition is marked by intense paranoia, aggressive behaviour toward objects and people, hallucinations, hyperthermia, altered sensorium, and lack of willingness to yield to force…The bizarre and threatening behavior of these individuals typically leads to a police response. The subject violently resists police attempts at restraint with a surprising amount of strength, and death often occurs unexpectedly once in custody308,309
Acute intoxication subsides as methylamphetamine is metabolised by the body and users may progress to a state of slowness, malaise and sometimes depression. As Professor Joyce pointed out, users may then take additional methylamphetamine in order to recapture their previous state of intoxication, leading to progressively larger doses to stave off the effects of withdrawal. This can lead to chronic high-level methylamphetamine use, which carries the risk of psychiatric disorders, including paranoia and associated violence.310 306 See: https://www.drugabuse.gov/publications/research-reports/methamphetamine/what-methamphetamine 307 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 24 308 Dukes, GD & Davis GJ, Encyclopedia of Forensic and Legal Medicine (2nd Ed, 2016) 309 See: https://www.sciencedirect.com/topics/neuroscience/excited-delirium 310 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 25
Professor Joyce explained that psychotic features such as delusions (i.e.: abnormal beliefs inconsistent with reality) and hallucinations (e.g.: hearing voices) can arise during the acute intoxication phase and fade as methylamphetamine levels drop. A period of sustained high-level methylamphetamine use can also cause “amphetamine induced delusional state”, a severe disorder characterised by paranoid delusions and hostility or violence towards the subjects of the paranoia. Professor Joyce said that Mr Tong’s methylamphetamine levels were consistent with any of the above states which, he explained, can co-exist.311
Professor Joyce made the following comments on the available evidence: There are aspects of (Mr Tong’s) behaviour that would be well explained by methylamphetamine intoxication. They were the argumentativeness, the physical aggression towards (Mr P Tong, NH and Ms Nguyen) and running towards police in apparent attack. The evidence offered by witnesses, though, does not include mention of paranoid beliefs or hallucinations, which are the necessary elements of a diagnosis of amphetamine-induced psychosis. These are typically paranoid delusions and commonly auditory hallucinations. (Mr Tong) had a history of amphetamine-induced psychosis, which would probably have made his family more perceptive towards its emergence. When the condition occurs, its presentation is usually quite obvious. So, it is credible that his reaction to the police officers was based on paranoid beliefs about them or their intentions, but there does not seem to be any direct evidence for this.312
Dr Victoria Pascu (a consultant forensic psychiatrist who prepared a report for the Court) expressed the view that: The level of methylamphetamine in Mr Tong’s drug screen is consistent with a significant intoxication with methylamphetamine which more likely than not contributed to him experiencing psychotic symptoms at the time. This most likely contributed to his agitated behaviour and likely persecutory beliefs involving his family and possibly the Police. Given the high level of methylamphetamine in his system it is possible that Mr Tong might have also experienced hallucinations (voice) which were in keeping with his persecutory beliefs.313 311 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), paras 26-27 312 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 28 313 Exhibit 1, Vol. 3, Tab 8, Report - Dr V Pascu (13.09.21), paras 53-54
Although Professor Joyce noted that the absence of witness reports about Mr Tong experiencing delusional beliefs and hallucinations argued against the presence of amphetamine-induced psychosis, he also noted: “the observational evidence is too sparse to be confident that psychosis was absent.314
In any event, Professor Joyce considered that methylamphetamine had impacted on Mr Tong’s behaviour, stating: (Mr Tong’s) involvement in verbal and physical altercations during the day confirms that methylamphetamine was working on his mind to make him more aggressive and to energise and agitate him. He was taking drugs whose purpose is to supress agitation and anxiety,315 which presumably means he perceived these adverse effects of methylamphetamine himself.
Methylamphetamine intoxication would have been present at the time he encountered the policemen. There would be good reasons to think that the methylamphetamine intoxication affected his reactions to their arrival at his bedroom door.316
Cause and manner of Death317
At the conclusion of her post mortem examinations, Dr McCreath expressed the opinion that the cause of Mr Tong’s death was multiple gunshot wounds. I accept and adopt Dr McCreath’s conclusion as to the cause of Mr Tong’s death.
Given the circumstances of this case and for the reasons outlined in this finding, I find that the manner of Mr Tong’s death was homicide by way of self-defence.
314 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 35 315 In Mr Tong’s case, this is a reference to the prescribed benzodiazepines clonazepam and nitrazepam.
316 Exhibit 1, Vol. 3, Tab 7, Report - Prof. D Joyce (28.07.21), para 36 317 Exhibit 1, Vol. 1, Tab 4, Supplementary Post mortem report, p1
[2021] WACOR 41 INVESTIGATIONS INTO POLICE ACTIONS Homicide Squad investigation318
After Mr Tong’s death, officers from the Homicide Squad conducted an investigation during which they examined physical evidence319 and obtained statements from relevant witnesses. The investigators also reviewed expert reports dealing with ballistics information and blood patterns found at the scene. The findings of these reports were consistent with witness accounts and physical evidence.320,321
After Mr Tong had been shot, police found a small folded up pocket knife in his pocket and a search of his bedroom found: a fish knife, a meat cleaver, a fold-up utility knife, a bottle opener with a 50 mm blade and a filleting knife with a broken handle and a 65 mm blade.322,323,324
Officer Dellar’s actions were reviewed by investigators with reference to “objective and subjective influences”. It was noted that prior to entering the Tong family home, Officer Dellar had received information that Mr Tong was armed with a knife and had threatened to kill his mother and police. Both Officer Dellar and Officer Bogunovich had said they were in fear for their lives when Mr Tong ran towards them, and both officers thought they were about to be stabbed and killed.
Having reviewed all of the available evidence, the investigating officers expressed the following conclusion: The investigation by Homicide Squad found, in the prevailing circumstances, the discharge of (Officer Dellar’s) firearm and subsequent death of the deceased to be lawful. Whilst the deceased was not holding a knife, nor hostages, when shot by (Officer Dellar), based on all available evidence, investigators could not eliminate Self Defence s248 Criminal Code as a defence for (Officer Dellar) in the killing of the deceased.325 318 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20) & ts 22.09.21 (Moore), pp179-191 319 See: Exhibit 1, Vol. 1, Tab 11, Forensic Disclosure Report (07.11.19) 320 Exhibit 1, Vol. 1, Tab 12, Blood Pattern Analysis Report (03.01.19) 321 Exhibit 1, Vol. 1, Tabs 13.1 – 13.5, Forensic Firearm Unit Report & attachments (25.12.18) 322 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20), p5 323 Exhibit 1, Vol. 1, Tab 18, Police photographs 1-6, depicting knives found in Mr Tong’s bedroom 324 Exhibit 1, Vol. 1, Tab 37, Statement - Det. Sen. Const. R Peters, (31.12.18), paras 10-11 325 Exhibit 1, Vol. 1, Tab 10, Report - Det. A’Sen. Sgt. W Moore, Homicide Squad (09.06.20), p9
Police sought an opinion from the Director of Public Prosecutions (DPP) as to whether any charges against Officer Dellar were warranted in relation to Mr Tong’s death. The DPP expressed the opinion that there were no reasonable prospects of conviction because the prosecution would be unable to disprove self-defence on Officer Dellar’s part. A prosecution in those circumstances would be inappropriate.326,327 Internal Affairs Unit investigation328
In accordance with Police policy, the IAU examined the conduct of the officers attending the Tong family home as well as the actions of officers at the Station. In broad terms, the issues examined during the IAU investigation were: a. Issue 1: whether Officer Briggs and Officer Maher complied with relevant policies in relation to the use of interpreters; b. Issue 2: whether Officers Briggs, Benington and Maher breached the Police Code of Conduct by failing to act with openness, empathy and accountability in their dealings with the Tongs; c. Issues 3-5: whether Officers Dellar, Bogunovich and McArthur acted in accordance with the Police use of force policy; d. Issues 6-7: whether, in the manner they entered and cleared the Tong family home, Officers Dellar and Bogunovich complied with the relevant Police rules, orders and administrative instructions; and e. Issue 8: whether the Police family violence reporting policy was complied with following Mr Tong’s death.
The IAU investigation considered the evidence gathered by the Homicide Squad, including interviews with police and civilian witnesses and physical evidence. Officers Dellar, Bogunovich, Parker, McArthur and Wigger were all subjected to drug and alcohol testing immediately following Mr Tong’s death with all tests being reported as negative.329 326 Exhibit 1, Vol. 1, Tab 10, Report - Homicide Squad (09.06.20), p9 327 Exhibit 1, Vol. 1, Tab 26, Letter - DPP to Det. Insp. R Scantlebury (12.04.19) 328 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21) 329 Exhibit 1, Vol. 2, Tab 38, Statement - Det. Snr. Sgt. B Hunter, paras 9-16
[2021] WACOR 41 COMMENTS ON THE ACTIONS OF OFFICERS General
I now intend to make some comments about the police response in this case, including the actions of some of the officers involved in Mr Tong’s death, either by attending at the Tong family home or by interacting with the Tongs at the Station.
Before I do so, I want to acknowledge that police are often called on to react to rapidly changing situations without necessarily having all of the available facts at their disposal. I also accept that police work is often dangerous and that many of the tasks carried out by the Police are of enormous benefit to the community.
Hindsight bias
Did Officer Dellar cause Mr Tong’s death?
(b) it appears that the death was caused, or contributed to, by any action of a member of the Police Force.
330 See for example: https://www.britannica.com/topic/hindsight-bias
However, that bald statement is not the end of the matter.
However, due to the nature of the threat they perceived they were facing and the poor lighting and cramped conditions in the hallway outside Mr Tong’s bedroom, none of these less lethal force options were appropriate.331,332,333,334,335
As I have already explained, at the relevant time, Mr Tong was intoxicated with methylamphetamine and this had a catastrophic impact on his behaviour. Mr Tong’s decision to run out of his bedroom towards police whilst yelling, shows that at the relevant time, his mental state was significantly disordered. Had he not been intoxicated with methylamphetamine it is possible that Mr Tong may have surrendered.
In my view, when Mr Tong ran towards them screaming unintelligibly and apparently armed, Officers Dellar and Bogunovich were each entitled to believe that he posed a serious and imminent threat to each of their lives.
In these circumstances, the use of lethal force is authorised.336 For the reasons I have outlined, I find that Officer Dellar’s actions in shooting Mr Tong were reasonable in all of the circumstances. Further, in relation to the police response to the situation at the Tong family home, I agree with the following statement made by Officer Dellar at the inquest namely: I’m not necessarily sure that we handled it perfectly. But, at the same time, I struggle to think of an unequivocally better way. It was a dangerous and volatile situation, and we did our best to handle it the way that we thought was appropriate in the moment.337 331 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp 64, 66 & 82 332 Exhibit 1, Vol. 1, 17.3, Reports - Mr C Markham (10.04.20), paras 376-381 333 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), pp4-5 334 ts 22.07.20 (Bogunovich), p133 and ts 22.07.20 (Dellar), p162-163 & 167 335 Exhibit 1, Vol. 1, 17.3, Reports - Mr C Markham (10.04.20), paras 376-381 336 Exhibit 1, Vol. 17, Tab 1, Report - Mr C Markham, paras 36-74 and ts 22.07.20 (Markham), pp131-132 337 ts 22.09.21 (Dellar), p179
Issue 1: Use of interpreters
Accounts about Ms Tong’s standard of English vary and in any event are clearly subjective. At the very least, it appears uncontroversial to say that Ms Tong spoke with an accent and had to repeat herself to ensure staff at the Station understood what she was saying.338
Although it appears that Ms Tong was able to make herself understood, albeit with some difficulty, staff at the Station could make no assessment about whether she was accurately translating questions posed to her father and/or his responses.339 Further, staff at the Station had no idea about the dynamics in the family as between Ms Tong and her father or between Ms Tong and her brother.
Apart from these specific issues, there are other more general problems with using family members as translators. Family members may not appreciate the importance of translating everything that their relative says and may summarise the information instead. A family interpreter may also impose their own views onto the relative’s response or add a “gloss” to what is being said.
Professional interpreters have had their language proficiency validated and are trained to be independent and neutral. On the other hand, family members may have difficulty remaining objective, especially in stressful situations like the one Ms Tong found herself in.
338 ts 21.09.21 (Briggs), p26; ts 21.09.21 (Benington), p51; and ts 21.09.21 (Maher), pp63-64 339 ts 22.09.21 (Moore), pp190-191
Guidelines supporting the Government’s Language Services Policy 2020340 state: It is not recommended to ask family or friends to act as interpreters as they may be emotionally involved and lack the necessary skills. The professional standards of ethics and conduct do not apply to nonprofessionals.341
A similar warning can be found in the Commonwealth Ombudsman’s best practice guide relating to the use of interpreters, which also recommends that all federal agencies have a clear, comprehensive and overarching policy on the use of interpreters.342
Relevantly, the Police Manual provides policy guidance on the use of interpreters (the Policy). Inspector Hill (Officer Hill) provided a statement to the Court, attached to which were most recent version of the Policy as well as the version in place at the time the Tongs attended the Station.343,344 Officer Hill confirmed that recent changes to the Policy have focussed on modernising the wording and that both versions are substantively the same.
The Policy outlines the options available to police for obtaining an interpreter and Officer Hill confirmed that police will consider using a professional interpreter “on all occasions when interviewing witnesses who do not sufficiently understand English”. The Policy relevantly states: If police seek to obtain witness statements, confessional evidence or critical information in relation to an incident, and there is doubt over the individual’s ability to communicate in English, police must provide a professional interpreter or translator…The use of professional independent interpreters and translators is important to: ensure the factual correctness of the information; negate adverse legal challenges in a Court of Law; and ensure fairness to the interviewee.345,346 340 The policy aims to ensure equitable access to public sector agencies through the provision of language services.
341 WA Language Services Policy 2020: Policy statement and guidelines, p6 342 Commonwealth Ombudsman Fact Sheet - Use of Interpreters 343 Exhibit 1, Vol. 2, Tab 51, Att. A, Interpreters and Translators - Use of (Professionals) (19.07.21) 344 Exhibit 1, Vol. 2, Tab 51, Att. B, Interpreters and Translators - Use of (Professionals) (15.09.21) 345 Exhibit 1, Vol. 2, Tab 51, Statement - Insp. B Hill, para 9 346 Exhibit 1, Vol. 2, Tab 51, Att. A, Interpreters and Translators - Use of (Professionals) (19.07.21), pp1-2
Notwithstanding the reference to obtaining “critical information” in relation to an incident, Officer Hill confirmed that the Policy is silent about the use of interpreters in “urgent situations” and does not address the use of “family members or friends as interpreters where questioning is time critical.”347 In my view, the Policy should be amended to deal with these important issues.
I have already touched on the very difficult situation Ms Tong found herself in when she took her father to the Station. Mr P Tong was an elderly gentleman who was clearly distressed about the fact that he had been assaulted by Mr Tong. He was also frightened of Mr Tong and was clearly motivated by a desire to have police intervene and remove Mr Tong from the Tong family home.
In this case, Mr P Tong had come to the Station to report alleged criminal offences, namely a breach of the VRO and assaults by Mr Tong against both himself and his wife. Mr P Tong had also reportedly told police about threats Mr Tong had made to kill Ms Nguyen and police if they attended.
In those circumstances, it was clearly important for police to “ensure factual correctness of the information” they were getting from him.
The IAU report observes that because of what Mr P Tong was conveying to police at the Station: “in accordance with policy it was not practicable to seek an interpreter or translator (in the first instance) given the urgent nature of the reported matter”. For that reason, the IAU investigators concluded that the actions of Officers Briggs and Maher, in calling for an immediate police response without first seeking the services of an interpreter, “was not considered a breach of policy”.348
I have some difficulty understanding how the IAU investigators were able to reach this conclusion, given that the Policy does not deal with the use of family members as interpreters or the use of interpreters in urgent situations. In my view it would have been better to conclude that in view of the circumstances, the actions of Officers Briggs and Maher were not unreasonable.
347 Exhibit 1, Vol. 2, Tab 51, Statement - Insp. B Hill, paras 10-12 348 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp137-138
On the other hand, Officer Moore said that interpreter services were available to the Police “24/7” and have been around “a long time”.
Officer Moore said that interpreters can be available very quickly although there can be reasons why “there can be a delay or lag in” in obtaining these services.349
At the inquest, Officer Briggs said he did not think an interpreter was necessary, whereas Officer Maher said that with the benefit of hindsight, he would have obtained an interpreter when the Tongs arrived at the Station. Officer Maher’s reasoning was that that this would have ensured that there was no misunderstanding between himself and Mr P Tong.350
There is no evidence before me as to the availability of Vietnamese interpreters, but given that Vietnamese is a relatively common language in Perth, I would have expected that it would have been possible to obtain a Vietnamese telephone interpreter relatively quickly when the Tongs first attended the Station.
In my view, it would have been appropriate for officers at the Station to have made urgent attempts to obtain the services of a professional Vietnamese telephone interpreter when the Tongs attended the Station.
Had it been possible to obtain the services of an appropriate interpreter, the task faced by Officers Briggs and Maher, namely trying to obtain accurate information about exactly what Mr P Tong was saying, would have been simpler.
349 ts 21.09.21 (Briggs), pp28-29 and ts 22.09.21 (Moore), pp187-188 350 ts 21.09.21 (Briggs), p40 and ts 21.09.21 (Maher), pp76-77 & 81-82
Officer Benington said that when she had been briefed about the language difficulties being experienced by Officer Maher as he interviewed the Tongs, she considered obtaining an independent interpreter but decided it was impracticable to do so because “the situation was unfolding and it was important to get as much information as possible and an interpreter would take too long”.351
The IAU investigators were of the view that Officer Benington’s assessment was flawed and contrary to the Policy and that notwithstanding the views she expressed at the time: There was sufficient time to contact a professional interpreter over the phone to assist with an immediate translation and validate information for the ongoing investigation.352
In any event, for the reasons I have outlined, it is my firm view that wherever practicable the Police should avoid using family members or friends as interpreters. Whilst I accept that it may not always be possible to obtain the services of a professional interpreter (such as when police arrived at the Tong family home),353 every attempt should be made to do so in all but the direst of emergencies.
I recommend that the Policy be amended accordingly and I would also suggest that some attempt is made to include guidance when dealing with the use of interpreters in emergency situations.
In passing I note that the IAU report also commented on the fact that when the Tongs were taken into the interview room, they were not informed of their rights as persons who were not in lawful custody but were assisting police with an investigation into an offence.354 When interviewed by IAU investigators, both Officer Maher and Officer Briggs stated that their failure to advise the Tongs of these rights was an oversight “due to the magnitude of the event”.355 351 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p140 352 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp140-141 353 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21), para 54 354 Section 28, Criminal Investigation Act 2006 (WA) 355 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p139
[2021] WACOR 41 Issue 2: Notifying the Tongs of Mr Tong’s death356,357
I have already dealt with the way in which the Tongs were formally notified about Mr Tong’s death and made comments about what I consider were the failings of individual officers in that regard. I am also critical of the decision to order Officer Maher to continue to interview the Tongs about the Altercation after it was clear that Mr Tong had been killed.
At the time, Officer Maher was a probationary constable. Officer Briggs should not have ordered him to speak with the Tongs and should have undertaken this task himself or have found another experienced officer to do so. Further, having allocated this onerous task to Officer Maher, Officer Briggs checked on him only once during the following 90-minutes and thus failed to provide anything close to an appropriate level of supervision.
To his credit, during his IAU interview, Officer Briggs accepted that Officer Maher was not suitably qualified to have been tasked with interviewing the Tongs and that his supervision of Officer Maher had been unacceptable.
As noted, after Officer Benington was briefed about the situation, she erred by ordering Officer Maher to continue interviewing the Tongs.
However, as Officer Benington acknowledged in her IAU interview, she should have appreciated that Officer Maher was too junior to have been given this task in the first place and should have arranged for Officer Briggs, or another experienced officer to take over.
356 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p141 357 See also: ts 21.09.21 (Briggs), pp39-41 and ts 21.09.21 (Benington), pp48, 50 & 55-56
At the relevant time, Officers Benington and Briggs were relatively senior officers with many years of service. As experienced police officers, there was an expectation that they would both demonstrate leadership skills and model appropriate behaviour.
Regrettably, neither Officer Benington nor Officer Briggs demonstrated appropriate leadership in the way they handled the notification issue.
From my perspective, it is also regrettable that at the inquest, despite being given the opportunity to do so, neither officer was willing to concede, even with the benefit of hindsight, that their conduct in relation to the Tongs had been inappropriate and both Officer Briggs and Officer Benington said they would not do anything differently.358
Officer Benington said she accepted the findings of the IAU investigators and had no comment to make. Officer Briggs also said he accepted the findings, but added that he didn’t agree with them and felt that the verbal guidance he had received following the IAU investigation had been unnecessary.359
On the other hand, Officer Maher (who was a probationary constable at the time) was doing his best to comply with lawful orders from his superiors. Frankly, he had been placed in an impossible situation, first by Officer Briggs and then by Officer Benington and was understandably “overawed” by the enormity of the task he was required to undertake. In my view it is quite wrong to attribute to Officer Maher, the same responsibility with respect to notifying the Tongs, that was properly attributed to Officers Benington and Briggs.
In my assessment, Officer Maher discharged the onerous responsibility he was given with considerable fortitude and he interviewed the Tongs for 90 minutes whilst his superiors tried to work out what to do. Given his lack of experience and the fact that he had been placed in a situation he should never have been placed in, it is my view that Officer Maher should not have been the subject of criticism by the IAU investigators.
358 ts 21.09.21 (Briggs), p43 & ts 21.09.21 (Benington), p55 359 ts 21.09.21 (Briggs), p44 and ts xx.09.21 (Bennington), p55
In any event, and in contrast, to his superiors, Officer Maher said that with the benefit of hindsight, he would have acted differently. He said he should have told the Tongs that Mr Tong had been shot as soon as he became aware of that fact. This is commendable precisely because it demonstrates a capacity to learn from past mistakes.360
Turning to the endorsement of the Notes, for the reasons I have explained, I am critical of Officer Benington’s actions in following the Tongs into the Station carpark to have the Notes “endorsed”. At that time, the Tongs were obviously highly distressed and they were understandably anxious to leave the Station precincts as soon as possible.
Asking the Tongs sign the Notes in these circumstances was not only pointless, it was insensitive and inappropriate. Notwithstanding her attempts to justify this conduct during her IAU interview, at the inquest Officer Benington agreed it had been inappropriate to ask the Tongs to sign the Notes and that in similar circumstances she would not act in this way again. This was a welcome concession.
Issues 3-5: Use of Force361,362,363
At the relevant time, officers attending the Tong family home believed that Mr Tong was holding his mother hostage at knifepoint and that her life was at grave and imminent risk. That belief was based on apparently credible information extracted by Ms Benjafield, Officer Briggs and Officer Maher from Mr P Tong (via Ms Tong as interpreter).
Attending officers had no reason to doubt the veracity of the information they were provided with and there were alerts on the police system relating to Mr Tong’s propensity to violence which were consistent with that information. On the basis of the information the attending officers had, it was lawful for them to arrest Mr Tong.
360 ts 21.09.21 (Maher), pp74-75 361 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp115-118 362 Exhibit 1, Vol. 1, Tabs 17.1, 17.2 & 17.3, Reports - Mr C Markham (21.08.19, 21.08.19 & 10.04.20) 363 ts 22.09.21 (Markham), pp205-209
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.366
At the inquest, a member of Mr Tong’s family said that the family were struggling to understand how police had concluded the force used by Officer Dellar was “reasonable”. Mr Markham’s367 response was: I believe the officers responded in…the way that they did because they had an honestly held belief that [Mr Tong] was armed with an edge weapon, that he was coming at them. The information that they had had, everything they had up until that point led them to believe that he had a knife. And when he came charging out of the room at them, because of their situation and where they were and what they were trying to do, they had no option but to discharge the firearm in those circumstances. So, I do honestly believe that [Officer] Dellar, who discharged his firearm…had no other option in the circumstances.368
The Police Manual deals with the circumstances in which the force options available to general duty officers (i.e.: baton, OC spray,369 Taser and pistol) may be used. At the inquest, policies relating to the use of force (including firearms) were tendered into evidence. I made a nonpublication order in relation to those polices and for that reason, I do not intend to detail relevant provisions in this finding.
364 Criminal Code, section 231 365 Criminal Code, section 260 366 Criminal Code, section 248(4)(a)-(c) 367 Mr Markham is the Police subject matter expert on the use of force.
368 ts 22.09.21 (Markham), p214 369 Oleoresin capsicum is the oil derived from the stem of peppers, hence the colloquial term “pepper spray”.
However, what I am able to say is that having carefully examined the relevant provisions of the Police Manual, comprehensive reports prepared by Mr Markham,370 and all of the available evidence, I am satisfied that the use of lethal force by Officer Dellar was justified by the circumstances he was faced with and was in accordance with the relevant provisions of the Criminal Code and the Police Manual.
In this respect, I agree with the conclusions reached in the reports prepared by both the Homicide Squad and the IAU.371,372 Issues 6-7: Manner of entry into the Tong family home
After responding to the CAD job and arriving in the vicinity of the Tong family home, Officer Bogunovich’s intention had been to hold back and await direction and/or determine whether a negotiator from the Tactical Response Group (TRG) was going to attend to manage the situation.
However, the radio broadcast about HK103’s arrival on the scene “mandated an immediate and rapid response and was the catalyst for (Officers) Bogunovich and Dellar to attend the said address and support officers in an unfolding dynamic situation”.373
Both Officer Bogunovich and Officer Dellar agreed that they were caught off-guard when, on arriving at the Tong family home, they realised the radio broadcast about HK103 was false and they were the first police on the scene. Although it would have been possible for them to have returned to the RV point, their decision not to do so was based on their concern that Mr Tong may have seen their vehicle as they had driven past.374
In these circumstances, although in retrospect the drive past was unfortunate,375 given that Ms Nguyen’s life might have been in grave and imminent danger, their decision not to withdraw to the RV point was, in my view, eminently sensible.376 370 Exhibit 1, Vol. 1, Tabs 17.1, 17.2 & 17.3, Reports - Mr C Markham (21.08.19, 21.08.19 & 10.04.20) 371 Exhibit 1, Vol. 1, Tab 10, Homicide Squad Report, p9 372 Exhibit 1, Vol. 2, Tab 48, IAU Report, p167 and see also: ts 22.09.21 (Markham), p212-214 373 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p161 374 ts 22.09.21 (Bogunovich), pp122-123 and ts 22.09.21 (Dellar), p159-160 375 ts 22.09.21 (Markham), p212 376 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp161-162
Both officers showed great courage by entering premises where they believed, on reasonable grounds, that an armed suspect (Mr Tong) was holding his mother at knifepoint. Their desire to respond immediately to what they perceived as an urgent threat to another person’s life is commendable. However, whilst understandable, it is unfortunate that there was not even the most basic of communication between them about a plan for entry into the Tong family home.377
Officer Dellar acknowledged that he and Officer Bogunovich had not discussed what they would do when they arrived at the Tong family home before doing so, explaining that, as I have earlier: “I was acting intuitively and swiftly to try and protect the mother from an imminent threat to life, given the suspect’s overt threat to her life”. However, as the IAU report observed, although the officers did not communicate with each other as to an action plan, they initiated tactical options in accordance with policy and their training.378,379,380
In this case, after trying the handle of AH and NH’s bedroom and finding it locked, Officers Dellar and Bogunovich proceeded down the hallway towards what they believed was Mr Tong’s bedroom. With the benefit of hindsight, had either officer knocked on AH and NH’s bedroom door and identified themselves as police, there is at least a chance that AH or NH might have confirmed that Mr Tong’s mother was not being held hostage.
Although AH and NH both heard police come into the house, neither said anything because they were too frightened.381,382,383384
377 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 99-100 378 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 99-100 and ts 22.09.21 (Dellar), p168 379 See also: Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21), paras 30-38 380 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p162 381 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 22-32 382 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 47-62 383 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp162-163 384 Exhibit 1, Vol. 1, Tab 17.3, Report - Mr C Markham (10.04.20), paras 382-395
Officer Dellar says he then stepped backwards towards the bathroom doorway, which was opposite, so as to “cover” the bedroom door with his firearm.385,386,387,388
Regardless of Officer Dellar’s intentions, it appears that he used more force than he had planned to open the door. I say that because as the door swung open, it struck some furniture and made a loud noise which startled Officer Dellar and considerably escalated tensions. That noise was heard by others at the scene and two witnesses also described Officer Dellar as having kicked open Mr Tong’s bedroom door.389,390,391,392,393,394,395
To some extent however, the question of whether or not Officer Dellar kicked open the door to Mr Tong’s bedroom is beside the point. From my perspective, the more important issue is whether Officer Dellar’s actions were safe. The problem is that when he applied force to the door with his left foot, Officer Dellar was standing directly in front of the door within the so-called “fatal funnel”.396
Officer Dellar had thereby placed himself in the most dangerous possible position and was vulnerable to attack with limited escape options. Had Mr Tong had been armed with a firearm (and discharged it through the closed door), or had a knife and attacked Officer Dellar as the door opened, there is a high likelihood that Officer Dellar could have been seriously injured or killed.397,398 385 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), para 68 386 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), p6 387 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp163-165 388 Exhibit 1, Vol. 1, Tab 17.3, Report - Mr C Markham (10.04.20), paras 429-455 389 Exhibit 1, Vol. 2, Tab 9.2, Statement - AH (22.11.18), paras 52 390 Exhibit 1, Vol. 2, Tab 4.2, Statement - NH (22.11.18), paras 26 391 Exhibit 1, Vol. 2, Tab 15, Statement - FC Const. D McArthur (23.11.18), para 59 392 ts 22.09.21 (McArthur), para 101 393 Exhibit 1, Vol. 2, Tab 14.1, Statement - Sen. Const. D Parker (23.12.18), para 70 394 Exhibit 1, Vol. 2, Tab 48.3, Statement - Sgt. G Bogunovich (17.09.21), para 107 395 ts 22.09.21 (Bogunovich), pp139-141 396 ts 22.09.21 (Bogunovich), p14o and ts 22.09.21 (Dellar), p172 397 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp164-165 398 Exhibit 1, Vol. 1, Tab 17.3, Reports - Mr C Markham (10.04.20), para 434-442
What Officer Dellar could have done instead was to have positioned himself on the door handle side of the door with his body “hugging” the adjoining wall. This would have enabled him to operate the door handle with “reduced exposure” of his profile and thereby have been a much safer option. This was the position Officer Bogunovich adopted at the hinge side of the door and was correct from a tactical point of view.399,400
Having made those observations, I accept that the situation faced by Officers Dellar and Bogunovich was extremely serious and that threat levels escalated considerably when officers heard noises suggesting that Mr Tong was possibly assembling a firearm. Further, at all relevant times, the officers reasonably believed that Mr Tong’s mother was at grave and imminent risk of death. In those circumstances, the officers both believed they had to act immediately and urgently to ensure Ms Nguyen’s safety.
Officer Dellar said that at the time he shot Mr Tong, he did not recall hearing shots or seeing the muzzle flashes described by others and it was clear to him that he was “experiencing physio-psychological effects of stress”, a phenomenon referred to by the Police as the “body alarm reaction” (BAR).401,402
BAR is a psychological and physiological response to, amongst other things, the threat of an attack from a suspect armed with an edged weapon.
BAR can cause symptoms such as tunnel vision, exaggeration of the perceived threat, loss of manual dexterity of the fingers, a reduced capacity for analytical reasoning and decision making, an inability to keep a mental track of the sequence of events and a reversion to trained behaviour.403,404
During his recruit training, Officer Dellar says was exposed a self-defence exercise relating to armed offenders. Officer Dellar said that by the time he had processed what was happening and drawn his firearm, he only had time to fire one round before being struck by the inert training knife carried by the suspect. Officer Dellar said that this exercise had demonstrated the “serious danger” presented by a suspect with an edged weapon at close quarters. 406,407,408,409
Officer Dellar completed his mandatory annual critical skills refresher training on 15 November 2018, exactly one week before Mr Tong’s death.
One of the scenarios officers were exposed to on that day involved an armed suspect.410,411,412
These learnings would have been fresh in my mind on 22 November 2018 (the day Mr Tong was shot).413
406 Exhibit 1, Vol. 1, Tab 17.1, Memo - Mr C Markham to Insp. R Scantlebury (21.08.19), paras 97-98 407 ts 22.09.21 (Markham), pp209-210 408 Exhibit 1, Vol. 2, Tab 13.1, Letter - Sgt. T Dellar to Insp. R Scantlebury (29.01.19), pp1-2 409 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 83-88 410 Exhibit 1, Vol. 1, Tab 17.2, Memo - Mr C Markham to Det. Insp. M Ninyett (21.08.19), para183 411 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 89-90 412 ts 22.09.21 (Dellar), pp176-177 413 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), paras 91-92
Where the available information is vague or non-specific, there is a tendency for this to be “(mis)interpreted in a way that accords with the perceived threat”. Officer Giesen applied these concepts to the present case and expressed the following conclusion: [U]nlike (Officer Bogunovich), (Officer Dellar) was unable to observe (Mr Tong’s) actions to assess level of risk, and instead needed to rely on (Officer Bogunovich’s) body and verbal responses and facial expressions, as well as (Mr Tong’s) screams and noises from inside the room to make his assessment. This is what I would conceive of as being ‘vague’ information as I described above. When (Officer Bogunovich) yelled out “he’s coming”, my thoughts are that (Officer Dellar) had interpreted and integrated all of this highly threatening information to perceive that (Mr Tong) was the actual threat – not any weapon he might have possessed. Further, in my opinion, (Officer Dellar) responded not as a police officer tasked with responsibility of assessing actual risk and taking proportionate action, but as a human being responding in an instinctive protective manner.414
As to the tactics employed by Officers Dellar and Bogunovich inside the Tong family home, the IAU report expressed the following conclusion (with which I agree): Some of (Officer) Bogunovich and Officer Dellar’s actions were not textbook, thought there were executed within the acceptable boundaries. With consideration of the totality of the matter, panel member officers who reviewed this matter during related Managerial Evidence Assessments Meetings (EAM) submitted that the deviations were acceptable. In considering the rapidly unfolding and dynamic nature of the incident that confronted (the officers), it was the collective view of the EAM panel members that the actions and operational tactics applied did not deviate sufficiently to reach the threshold for a statutory breach or regulation 402(e) of the Police Force Regulations 1979.415 414 Exhibit 1, Vol. 1, Tab 15, Memo - Sen. Sgt. K Giesen to Det. Insp. R Scantlebury (04.01.19), pp1-2 415 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p167
[2021] WACOR 41 Issue 8: Family violence incident report
Police policy requires officers attending an incident involving family violence to submit a report at the conclusion of the shift in which the incident occurs. Even though the alleged perpetrator of the family violence (Mr Tong) had died and submitting the report would have been pointless, it was still technically required. In this case, it appears that the failure to submit the report was merely an oversight on the part of relevant officers and was quite understandable.416 One Force Core
One Force Core (One Force) is a mobile phone application which was rolled out on 17 August 2021, to replace TADIS and several other police systems. One Force provides increased search functionality for frontline officers and displays the location of incidents and police vehicles in realtime.417
One Force also provides incident alerts and, where an officer is wearing a smart watch linked to their mobile phone, alerts are displayed on the watch as well. Had One Force been available in this case, officers would have been able to check whether HK103 was in fact at the Tong family home before they left the RV point.418 416 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp167-169 417 Exhibit 1, Vol. 1, Tab 17, Att. 8 - One Force Core information update (20.09.21) 418 Exhibit 1, Vol. 1, Tab 17, Att. 8 - One Force Core information update (20.09.21)
[2021] WACOR 41 ISSUES RELATING TO THE TACTICAL RESPONSE GROUP General
The Tactical Response Group (TRG) is a unit of the Police that provides specialist skills and capabilities beyond the scope and expertise of general duty police. Examples of occasions where the TRG may be employed include sieges, hostage situations and cases involving armed offenders.419 Deployment of the TRG
After Officer Briggs had advised the POC about Mr Tong’s threats to kill his mother and police, Senior Constable Dawe, who was the Operations Manager at the Station at the time, realised that the CAD job had not been updated to reflect this threat. He considered that it was extremely important for attending officers to be so aware and at 4.28 pm, he made the following CAD entry: “Given mention that suspect stated if police attended he would kill his mother then approach police, can TRG be advised”.420
The fact that the situation at the Tong family home apparently involved a person armed with a knife holding another person hostage meant that it “met the criteria to request the attendance and assistance of the TRG”,421,422 and Officer McArthur said he thought he had heard a reference to the TRG attending the scene.423
In fact, the POC had made a request to the TRG for them to attend at the Tong family home. As the TRG were preparing to leave their base, advice was received that Mr Tong had been killed. In a statement to the Court, Superintendent Hatch (Officer Hatch) advised that if the TRG had deployed, they would have established a cordon around the family home and a trained negotiator may have attempted to engage with Mr Tong.424 419 Exhibit 1, Vol. 1, Tab 28.1, Statement - Supt. P Hatch (17.9.21) paras 7-8 and ts 22.09.21 (Hatch), pp193-194 420 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp38-39 421 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p161 422 Exhibit 1, Vol. 1, Tab 28.1, Statement - Superintendent P Hatch (17.9.21) para 20 423 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p48 424 Exhibit 1, Vol. 1, Tab 28.1, Statement - Superintendent P Hatch (17.9.21) paras 18-27
Officer Dellar agreed that with the benefit of hindsight, the TRG may have been better skilled and equipped to resolve the incident. However, he said that although he was aware of the existence of the TRG at the relevant time, he did not know exactly what the TRG did or the sorts of situations they should be requested to attend. Further, although he had never been to an incident attended by the TRG, he had previously been told it could take some time for the TRG to deploy. In this case, Officer Dellar believed that “time was of the essence” because “there was an imminent threat” to Ms Nguyen’s life.425
In his IAU interview, Officer Dellar said that in a perfect world, the TRG would attend every situation involving an armed offender, and had this been a confirmed hostage situation, he would have expected the TRG to attend. Officer Dellar acknowledged that he did not request TRG attendance, but he pointed out that at the relevant time, he was trying to operate TADIS in a vehicle proceeding under priority conditions.426 The “sliding doors” moment
In this case, the opportunity to deploy the TRG evaporated when police at the RV point heard a radio broadcast that HK103 was already at the Tong family home. At that point, on the basis of the information police had been given, attending police believed that Ms Nguyen’s life was at imminent risk and were also concerned about the lack of response from the occupants of HK103.
Officer McArthur said that confusion about the police response to the incident had started with the broadcast about HK103’s location and Officer Parker said that but for that broadcast, officers would have remained at the RV point. They would then have come up with a plan which would likely have involved the TRG.427,428 With the benefit of hindsight, it is least possible that had police remained at the RV and the had TRG had deployed to the Tong family home, the outcome for Mr Tong may have different.
425 Exhibit 1, Vol. 2, Tab 13.2, Statement - Sgt. T Dellar (29.01.19), p95-98 426 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), p74 427 Exhibit 1, Vol. 2, Tab 49, Report - Internal Affairs Unit (08.02.21), pp45 & p48-49 428 ts 22.09.21 (McArthur), ts 104-105
Recommendation No.2 Where it appears that the death of a person has been caused or contributed to by any action of a member of the Western Australian Police Force (the Police), then in order to ensure that communications between the Police and the deceased’s family members are effective and timely, the Police should task a suitably experienced senior police officer to undertake early, regular and ongoing contact with the deceased’s family members.
Recommendation No.3 In order to improve operational awareness within the Western Australian Police Force, information about the roles and capabilities of the Tactical Response Group and the Regional Operations Group should be disseminated to all general duties police officers.
Comments relating to recommendations
By email dated 25 October 2021, Ms Eagling forwarded a document entitled “Briefing Note” to Ms Tyler containing comments in relation to each of the draft recommendations.430 It appears that the Police are generally supportive of the recommendations and in summary, the comments in the Briefing Note were as follows: a. Recommendation 1: Police are currently reviewing the interpreter policy and guidelines “in consideration of adopting this draft recommendation”. It was pointed out that the caveat “wherever possible” as important because exceptional circumstances may make it impractical to obtain the services of an accredited interpreter; b. Recommendation 2: Police are broadly supportive of this recommendation, although consideration is being given to circumstances where it may be more appropriate to have a staff member other than a commissioned officer act as a family liaison officer; and c. Recommendation 3: Police intend introducing an additional awareness presentation to all police recruits dealing with the roles and functions of the POC, the TRG, the State Operations Command Centre and the Regional Operations Group (ROG) as well as specialist resources available to frontline staff. Additionally, the Police are currently considering: [F]urther appropriate mediums to provide all current frontline staff information/awareness regarding the roles and capabilities of TRG and ROG.431
After carefully considering the contents of the Briefing Note, I made what I considered to be appropriate amendments to Recommendation 2.
430 Email - Ms N Eagling to Ms S Tyler enclosing Briefing Note (25.10.21) 431 Briefing Note (25.10.21), p2
In this case, a cascade of events led to the death of Mr Tong, a much-loved 38-year old man whose life had been adversely impacted by his habitual use of methylamphetamine. It seems clear that a number of his family were frightened of his propensity for violence when he used illicit drugs.
Police attended the Tong family home because of credible information that Mr Tong was armed with a knife and was holding his mother hostage.
That information came from Mr Tong’s father and sister who had reported an earlier altercation to police. At the relevant time, Mr Tong was intoxicated with methylamphetamine and was probably experiencing a drug-induced psychosis. When officers arrived on the scene and called on Mr Tong to surrender, he rushed at them screaming incoherently.
Attending police believed that Mr Tong was about to kill them and he was shot dead by one of those officers.
Although the lack of planning by attending officers before they entered the Tong family home is unfortunate, I accept that the primary concern of these officers was their belief that Mr Tong’s mother was at imminent risk of being killed by Mr Tong. Having carefully considered all of the available evidence, I have concluded that although Mr Tong’s death was caused by a member of the Police, attending officers acted reasonably given the information that was available to them at the time.
In my view, it is also clear that Ms Tong believed that she was acting in her father’s best interests when, at his request, she took him to the Station and interpreted his answers to questions from police. Ms Tong was doing her best in extraordinarily difficult circumstances, and was not to know how events would unfold.
On any reasonable view of the evidence in this case, the suggestion that Ms Tong is in any way responsible for Mr Tong’s death is completely without foundation. It would therefore be quite unreasonable for any person to blame Ms Tong for her brother’s death. Mr Tong’s death was the culmination of a series of interconnected events, almost all of which occurred independently of Ms Tong.
I have made three recommendations dealing respectively with: the appropriate use of interpreters; the appointment of an appropriate police liaison officer in the event of a death caused or contributed to by a member of the Police; and further awareness training as to the availability of specialist staff and resources. It is my hope that these recommendations will be implemented.
Finally, I wish to again express, on behalf of the Court, my very sincere condolences to Mr Tong’s family for their terrible loss. I also wish to record here, what Officer Dellar said at the conclusion of his evidence at the inquest, namely: If I could briefly address the Tong family. I know there’s…nothing I could possibly say that’s ever going to take away the pain that you must feel, from the loss that you suffered that day. But I would just like to express how sorry I am for your loss. I really wish things had ended differently that day.432 MAG Jenkin Coroner 29 November 2021 432 ts 22.09.21 (Dellar), p179
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