RECORD OF INVESTIGATION INTO DEATH (WITH INQUEST)

Coroners Act 1995

Coroners Rules 2006

Rule 11

I, Robert Pearce, Coroner, having investigated the death of

 

Nicholas Martin Whiteley

 

WITH AN INQUEST held in Launceston between 11 and 15 February 2013 and in Hobart on 11 April 2013

Find:

(a) The identity of the deceased is Nicholas Martin Whiteley born 11 February 1989 in South Australia;

(b) Mr Whiteley died as a result of severe internal bleeding from injuries caused by a single gunshot to his abdomen;

(c) Mr Whiteley died at 20 Jones St Westbury on Sunday 28 November 2010;

(d) Ian Fraser Blake, a first class constable of Tasmania police, contributed to Mr Whiteley’s death by firing the fatal gunshot. Mr Whiteley contributed to his own death by a violent attack on Constable Blake which resulted in Constable Blake discharging his firearm to defend himself.

Summary:

  1. I am satisfied that Constable Blake discharged the shot that caused the fatal injury to Mr Whiteley in the circumstances described by Constable Blake, that is inside the back door in the kitchen at Mr Whiteley’s house at 20 Jones St Westbury when he was being attacked by Mr Whiteley. I find that at the time he fired his pistol Constable Blake had a genuine and honest belief that he was in imminent threat of death or serious injury, that some force was necessary to defend himself and that the level of force he used was not unreasonable in the circumstances as he believed them to be.
  2. The inquest considered the Tasmania Police Policy called the Single Member Response Model.[1] That is so because the coronial investigation involved consideration of whether police officers should be requested or permitted to perform police duties alone and whether the presence of another police officer may have reduced the likelihood of Mr Whiteley’s death.
  3. Although the presence of another police officer on that day may not have prevented Mr Whiteley’s death it would, in my assessment, have reduced the likelihood of the unfortunate escalating series of events that led to that result.
  4. I do not consider it necessary or appropriate to make any recommendation to revoke the Single Member Response Model Policy. A much broader and more comprehensive review of the Model and the operational and budgetary consequences of change than has been conducted during this inquest is required before any such recommendation may responsibly be made. However for the detailed reasons given in my finding I make three recommendations:
    1. I recommend that Tasmania Police devise and include in the Model a more structured and rigorous process for assessment of risk factors when deciding whether a task is appropriate for a single officer response. Such process:
      1. should identify risk factors and include guidelines for their consideration;
      2. should provide for allocation of responsibility between individual officers and Radio Dispatch Services for obtaining and reviewing intelligence;
      3. should include guidelines for reference of decisions to senior officers in appropriate cases;
      4. should reduce or eliminate reliance on assessment of risk by reference to classification of tasks into fixed categories and instead should involve proper assessment of risk according to the circumstances of each case;
      5. should emphasise the importance of a continuing re-assessment of risk in the course of a single officer response and the paramouncy of officer safety at all times.
    2. I recommend that Tasmania Police deliver on at least a yearly basis continuing training to all officers, especially those in rural or remote areas, and Radio Dispatch Service operators not only in the Model itself but in the safe police practices on which the model is based.
    3. Although a multiple officer response does not eliminate the risk of serious injury or death it must inevitably reduce it. Thus I also recommend that Tasmania Police undertake an assessment of the cost associated with abolition of the Single Officer Response Model in favour of mandatory multiple officer attendance.

    Preliminary:

  5. This inquest is part of a coronial investigation conducted under the Coroners Act 1995 (“the Act”). As coroner I have jurisdiction to conduct an inquest into a reportable death, which includes a death that appears to have been unexpected, unnatural or violent.[2] As Mr Whiteley was, immediately before his death, in custody, I must hold an inquest.[3] I am required to find, if possible, when and where Mr Whiteley died, how his death occurred, the cause of his death and to identify any person who contributed to the cause of death.[4]
  6. The primary focus of an inquest is to seek out and record the facts concerning the death or suspected death of a person. It is a fact finding exercise of an inquisitorial nature. The facts which are relevant are those which may enable findings about the matters the Act requires the coroner to, if possible, determine. It is not the function of an inquest to attribute any moral or legal responsibility or liability for a death or to hint at blame.[5] It is not a means of apportioning guilt. A coroner is to determine facts. The facts, once determined, will speak for themselves and it is for others to, if necessary, draw legal conclusions.[6]
  7. Thus, a finding that a person contributed to the cause of death of another, if it is made, does not and should not involve a finding that the person has some criminal or civil responsibility for the death.[7] Nevertheless, although the standard of proof is on the balance of probabilities,[8] such a finding is of such seriousness that clear and cogent evidence should be required before it is made.[9]
  8. As to the finding of how death occurred a coroner is to find “the manner in which the deceased happened to die. This does not refer only to the means or mechanism by which the death was suffered or inflicted. It extends to the circumstances attending the death”[10]. This “reflects the public interest which is protected and advanced by a coronial investigation”[11].
  9. As to the finding of the cause of death the coroner is not confined to or restricted by concepts such as “direct cause”, “direct or natural cause”, proximate cause” or the “real and effective cause”. Rather it is necessary to “delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case”.[12]
  10. A coroner must also determine the identity of a person who contributed to the cause of death. Such a finding does not involve the attribution of blame or responsibility for a death or a finding of criminal or civil liability. It is a finding that relates only to cause. The meaning and operation of the provision is explained in the decision of the Victorian Court of Appeal in Keown v Khan & Anor [1999] VR 69 where Callaway J said at 76:

    “The findings by a coroner as to how death occurred and the cause of death should, where that is possible, identify any person who contributed to the cause of death. Section 19(1)(e) serves no purpose other than to ensure that that is done. The reference to contribution to the cause of death reflects the commonplace truth that it is sufficient if a person's acts or omissions are a cause of a relevant event. Civil juries are, for example, regularly asked whether the negligence of the defendant was a cause of the plaintiff's injuries. The test of contribution is solely whether a person's conduct caused the death. It may have been the only cause or one of several causes. There are also cases where no one satisfies the description in s19(1)(e), as in the case of a death solely from natural causes. In determining whether an act or omission is a cause or merely one of the background circumstances, that is to say a non-causal condition, it will sometimes be necessary to consider whether the act departed from a norm or standard or the omission was in breach of a recognised duty, but that is the only sense in which paragraph (e) mandates an inquiry into culpability.”

  11. A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate[13]. In addition a coroner may comment on any matter connected with the death including public health or safety or the administration of justice[14]. The power to make comment or recommendations must be connected to the subject matter of the investigation and is secondary to the mandatory power to make the findings required by the Act.[15] It is not the function of a coroner to respond to professional or vocational failures in individual cases.

    Findings:

  12. Following an investigation conducted with the assistance of Tasmania Police an inquest was held in Launceston commencing 11 February 2013. For reasons I will later expand upon in areas of uncertainty, conflict or contention I find in accordance with the following narration of events.

    Background:

  13. Nicholas Martin Whiteley was born on 11 February 1989. At the date of his death he was aged 21. He was born in South Australia. His biological mother is Laura Matthewson, later known as Laura Travel. His biological father is Martin Brzeski. Mr Brzeski is now married to Carol Brzeski. When he was 18 months old Nicholas and his older brother Christopher began to live with foster parents Peter and Dianne Whiteley who now live at Cressy in Tasmania. Mr and Mrs Whiteley acted as parents for Nicholas throughout his life. About two to three years before his death Nicholas was reunited with his biological father Martin Brzeski, who he had not previously known. They got to know each other during that time.
  14. In 2007 Nicholas Whiteley and his girlfriend Sheena Button moved in together. She was 16 and he was 18. Their relationship was not always smooth but in 2009 she fell pregnant. They purchased a house at 20 Jones Street Westbury and they moved in in July 2009, just after her 18th birthday. Their son Lane was born 9 February 2010.
  15. Difficulties in the relationship continued during 2010. There were periods of separation and reconciliation. Mr Whiteley’s behaviour was unstable, he abused alcohol, was gambling and was easily aggravated and provoked. He became verbally abusive and quick to anger although he was not actually violent toward Ms Button.
  16. Some difficulties arose concerning the care of their son. On 1 March 2010 an incident occurred at the home of Ms Button’s parents, Karyne and Leslie Button, at Bracknell. At that time she had moved out from Westbury and was living with her parents. Mr Whiteley arrived and demanded to take their child with him. Ms Button locked herself in the car and, concerned about what was happening, Karyne Button called the police. Constable Ian Blake attended. He spoke to Mr Whiteley at length. The situation was diffused and Mr Whiteley left. Mr Whiteley later told Ms Button that he believed Constable Blake was “a nice cop”. A Tasmania Police family violence incident report was prepared and recorded.
  17. Difficulties with the relationship continued. Mr Whiteley’s behaviour seemed to deteriorate. There were further period of separation. On 7 and 13 September 2010 Mr Whiteley had consulted general practitioner Dr Annette Douglas and been prescribed medication for depressive illness and referred to counselling. Mr Whiteley consulted a general practitioner from the same practise, Dr Phillip Briddon, on 27 September 2010. Dr Briddon reviewed Mr Whiteley’s medication and discussed the work, financial and relationship issues that were troubling him. Dr Briddon was aware of and continued the referral to counselling under a mental health plan.
  18. Mr Whiteley was referred to Fiona Thowe, a specialist rural social worker, for counselling sessions concerning his relationship difficulties. She saw him six or seven times commencing in September 2010. She became aware of the depression from which he was suffering and that he had experienced suicidal thoughts. She referred him to a mental health worker and worked with his general practitioner. She last saw Mr Whiteley in mid to late November 2010, not long before he died.
  19. Mr Whiteley was employed at McKay Timber but during August, September and October he had some time off because of his illness. Medical certificates were written by Dr Douglas and Dr Briddon.
  20. At the beginning of November 2010 Ms Button and Mr Whiteley separated for the final time. She moved out of the Westbury house with their son. Mr Whiteley remained living at 20 Jones St, Westbury.
  21. On 8 November 2010 Mr Whiteley was brought to Dr Briddon by his mental health nurse who was concerned about Mr Whiteley’s welfare. Dr Briddon considered that on that day Mr Whiteley was quite unwell with a flat and down cast presentation. He complained of anxiety and sleep disturbance and thought of self-harm arising, in Dr Briddon’s opinion, principally from the situation of crisis brought about by the recent separation from Ms Button. He was counselled, his medication was addressed and he was re-referred to Ms Thow. Dr Briddon saw Mr Whiteley again on 15 November 2010 and again on 22 November 2010 at which time his presentation had improved.

    Events and circumstances prior to the police attendance at 20 Jones St:

  22. Ms Button and Mr Whiteley agreed that she would go to the Westbury house on Sunday 28 November 2010 to collect some of her belongings. They made the arrangements by phone in the days before. He told her that he had started to pack up some things and that he would have Carol Brzeski’s son, Haydyn Erskine, stay the night before to help him dismantle the larger items.
  23. Just after 9.00 am on Saturday 27 November 2010 a text message exchange took place between Ms Button and Mr Whiteley. The substance of the exchange was that he asked her to come the following day between 12 noon and 1.00 pm. She told him that she wanted to come at 10.00 am and said “if tomorrow ct ten don suit ill be thee this afternoon”(sic). He replied “I will change the locks”.
  24. Concerned about what had been said in the context of Mr Whiteley’s earlier unpredictable and aggressive behaviour Ms Button contacted the police. Her intention was to ask that a police officer be present while she was at the house. She was also concerned about what might happen if Mr Whiteley’s father Mr Brzeski was also present. Ms Button phoned the police and the call was answered by an operator in the police radio room. The police radio room, referred to as Radio Dispatch Services or RDS, is the common point of contact between Tasmania Police and the public and for transfer of information to police officers. RDS is responsible for the allocation of officers on duty to individual tasks. Ms Button explained to the operator the purpose of her call, that it related to her partner Nicholas Whiteley who had “kicked me out” and that she intended to go and collect “her stuff”. She was asked whether any “orders” were in place. She said, correctly, that there were not but said “I don’t know what he’s capable of basically…” She went on “he’s very unpredictable and yeah he could get violent…” There was a discussion about the time of the visit after the operator had considered the availability of an officer to attend and he then said “Nines probably more what we want…” She gave the operator the address and the name of her partner. She was given a reference number and instructed to contact the police again to activate the arrangements.
  25. On Sunday 28 November 2010 Constable Ian Fraser Blake was stationed at Longford and was rostered on duty. He was 57 and weighed 87 kilograms. He started work at 8.00 am. Longford falls within the Northern District for Tasmania Police. The Northern District includes the Launceston division and the country areas that fall outside that division including the Longford and Deloraine subdivisions. The Deloraine subdivision includes the police stations at Deloraine and Westbury. The Longford subdivision includes the stations at Longford, Perth, Cressy, Evandale and Campbell Town. Police sergeants are stationed at Deloraine, Longford and Westbury. Constable Blake was, in the normal course, subject to the authority and immediate supervision of the sergeant at Longford. That person was, in turn, subject to the authority of the Divisional Sergeant based at Deloraine who was responsible to the Divisional Inspector, also based at Deloraine. The sergeant in charge of Longford was responsible for rostering police officers in his subdivision, but it was done in conjunction with the sergeant at Deloraine so police resources were co-ordinated across both subdivisions. At the relevant time it was the informal policy to have if possible a minimum of 2 officers on duty in each subdivision. However on 28 November 2010 the rosters were affected by the absence of other officers on leave. As a result Constable Blake was allocated to cover for the Deloraine subdivision including the Westbury station and he was working alone. On 28 November 2010, for rostering reasons, none of the station sergeants were on duty. Thus Constable Blake was responsible to the sergeant on duty in Launceston. On that day, again for rostering reasons, the sergeant in charge in Launceston was acting as both the station sergeant and the patrol sergeant, which meant that he was responsible not only for operation of the Launceston station and to act as custody sergeant but also to monitor and control the officers on patrol in the area of his responsibility.
  26. Constable Blake commonly worked alone. However his regular partner was Constable Julie Burbury who was stationed at Campbell Town. On that day Constable Burbury was rostered to work from 8 am to 6 pm and was on patrol in the Ross and Campbell Town area and in the Campbell Town police station. There was no other officer on duty in that area at that time.
  27. Westbury is about 35 kms east of Launceston. Longford is about 20 kms south of Launceston. It takes somewhere between 20 and 30 minutes to drive to Westbury from either Longford or Launceston. It takes almost an hour to drive to Westbury from Campbell Town.
  28. Ms Button followed up the arrangements on 28 November 2010. At 7.38 am she rang and spoke to an RDS operator. After a couple of calls she was informed that the officer allocated to the job would meet her at the Westbury house. The officer allocated to the task was Constable Blake.
  29. Around 8.00 am on that morning Constable Blake was contacted by RDS. He was instructed that he was required to attend a “keep the peace” job at Westbury and asked to contact Ms Button. The radio operator informed him that “the fella involved is Nicholas Whiteley” and “the comment when it was put in yesterday says that he’s potentially violent so…So no doubt you’ll make some inquiries before you…after you’ve rung her”. Constable Blake replied “Well I’ve got…just the thing for violent people… Can tell you it works nearly every time”.
  30. Constable Blake then phoned Ms Button. She told him that she wanted to collect her possessions from 20 Jones St. He asked how old Mr Whiteley was and whether Mr Whiteley had firearms and whether any family violence orders were in place and was told “No”. He asked and was told why Ms Button had moved out. She told him that she thought that Mr Whiteley was strong, unpredictable and easily provoked and that he had been depressed. Constable Blake realised that Mr Whiteley was the same person he had spoken to at Bracknell some months earlier and told Ms Button that he did not “have any issues last time” and “I can handle him”. They arranged to meet at 20 Jones St at 9.00 am. That time was fixed because Constable Blake was not sure that he would be available at any other time. Constable Blake suggested to Ms Button that she contact Mr Whiteley to tell him that they were coming.
  31. Constable Blake did not contact Mr Whiteley before attending. Before leaving for Westbury he made some inquiries about Mr Whiteley on the police data base referred to as ICE (Intrepid Central Inquiry). It showed a photograph which Constable Blake recognised to be the same Nicholas Whiteley he had earlier met and spoken to at Bracknell. At that time ICE disclosed that Mr Whiteley had no criminal record for violence.
  32. Ms Button sent another text message to Mr Whiteley at 8.46 am “coming over to get my stuff be there ct 9” (sic). He replied at 8.47 am “no I said twelve”.
  33. Haydyn Erskine spent time with Mr Whiteley during Saturday 27 November 2010 and stayed that night at 20 Jones St. He and Mr Whiteley rose at about 7.00 am on Sunday 28 November and together they dismantled a bed and moved some boxes ready for the pick-up. They had breakfast together at a restaurant in Westbury and Mr Whiteley then drove him to Carrick where Mr Erskine had arranged to meet another person. It was while they were waiting there that the text message from Ms Button arrived. Mr Whiteley said “I’ve got to go…home because Sheena’s coming over”. He appeared unhappy that she was coming at that time but not unduly so.
  34. Martin and Carol Brzeski had spoken to Mr Whiteley on Saturday 27 November and arranged to go to 20 Jones St to be present to support Mr Whiteley at the time of the hand-over. Mr Whiteley’s dog “Skye” lived with him at the house.

    The events at 20 Jones St leading up to the critical incident:

  35. 35 Jones St is in a residential part of the township of Westbury and runs in a general southerly direction from the main street, Meander Valley Road. Number 20 is about 500 metres along on the western side. The sealed surface of the roadway is separated from the footpath by a wide grassed nature strip. The single story modestly sized weatherboard house is set back about 10-15 metres. The front fence is about a metre or so high and constructed of a steel circular tubing frame and wire mesh. Viewed from the road the driveway is to the left, between the house and the southern boundary. The driveway consists of two concrete vehicle strips with a grass central strip extending just beyond the house and in to the back yard. At the driveway entrance is a vehicle gate of the same height and construction as the front fence and about 3 metres long, hung on a single hinge from the side fence. A pedestrian gate in the front fence opens onto a path leading straight to the front door in the centre of the house. The front door of the house faces the road and opens on to a small landing. Inside the front door a corridor leads to the rear of the house. The back door to the house is positioned in about the centre approximately equivalent to the position of the front door. Just outside the back door is a small covered area with ceramic tiles which then opens out with two small steps onto a flat concrete area beyond which is the back yard. The wooden back door opens inwards and a spring loaded fly screen security door opens outwards. Immediately inside the back door is the kitchen. It is a medium size room with a lino or vinyl floor covering. There is a window over the sink which looks out onto the back yard. The sink bench is separated from the area immediately inside the back door by a bench which protrudes a metre or so into the room and there is a small table in the centre of the floor. The opposite wall of the kitchen is wood panelling with a large opening onto the lounge room. Just off the kitchen is a small room with a fridge/freezer.
  36. Constable Blake went to the house about 10 minutes before 9.00 am. He was carrying a utility belt equipped with capsicum spray, a police baton and a police firearm, a Glock pistol, in a holster and a police radio.
  37. It was Constable Blake’s intention to inform Mr Whiteley about what was going on before Ms Button arrived. He did not know whether Mr Whiteley had been told that he was coming and at what time. Constable Blake had no concerns about the task that he was to perform. He later told the investigating police that it was “just another one of those rather boring jobs little jobs we get…” He did not consider it necessary to be accompanied by another officer. It was his intention that he, once Ms Button arrived, would wait near his vehicle which was parked at the front of the house and that there would be no need for him to go into the property at all.
  38. When Constable Blake arrived Mr Whiteley was standing near the front door of the house. Constable Blake parked his police car on the nature strip and reported to the police radio room that he had arrived at the address. He walked to the driveway gate, which was closed. Mr Whiteley walked from the front door to meet him. Mr Whiteley was talking on his phone. He had used the handset of his home phone to try to call his father Martin Brzeski but the call was unsuccessful because Mr Brzeski was engaged on another call at that moment.
  39. Constable Blake and Mr Whiteley then stood on opposite sides of the gate. Mr Whiteley appeared to be unhappy and asked Constable Blake what he was doing there. Constable Blake told Mr Whiteley that he had come at the request of Sheena Button to “keep the peace”. He explained that it was not his intention to come onto the property or into the house or to “take sides”. However Mr Whiteley became agitated and upset. He told Constable Blake to “fuck off”. Constable Blake hoped the abuse would stop and Mr Whiteley would calm down but the abuse persisted and increased to the extent that Constable Blake decided to arrest him. He reached over the gate intending to touch Mr Whiteley on the arm saying “you’re under arrest”. Mr Whiteley swept his arm aside and said something like “No, I’m fucking not, you fucking can’t arrest me”. Constable Blake moved to open the gate but Mr Whiteley pushed it closed. When Constable Blake again attempted to walk through the gate Mr Whiteley picked up the gate, more forcefully this time, and pushed it back forcing Constable Blake back a step or two.
  40. Constable Blake then said to Mr Whiteley “You are under arrest, drop to your knees”. Mr Whiteley threw a punch at Constable Blake across the gate, not connecting, and told him to “fuck off”. Constable Blake then again said “you are under arrest”. Mr Whiteley swung another punch at Constable Blake but again it made no contact. Constable Blake then leaned forward towards Mr Whiteley with his arm extended and without warning sprayed Mr Whiteley’s face with oleoresin capsicum spray, referred to as OC spray. Mr Whiteley wiped his face and said something like “was there any fucking need for that?” Constable Blake yelled again “drop to your knees” but Mr Whiteley walked off down the driveway. Constable Blake walked through the gate and followed. He continued to yell a number of times “you’re under arrest, drop to your knees” but Mr Whiteley did not comply. When Mr Whiteley was about 3 to 5 metres down the driveway Constable Blake approached him with his police baton, struck him on the right arm twice and once on his right knee. Still Mr Whiteley kept walking. While still in the driveway Constable Blake tried to bring Mr Whiteley to the ground by putting his leg across in front of him and grabbing him to push him over. However Mr Whiteley shrugged him off and said “just fuck off, fuck off will you” and continued to walk down the driveway towards the rear of the house. Constable Blake followed him.
  41. Sheena Button and her mother Karyne Button arrived in a car being driven by Sheena Button at 9.00 am or a minute or so later. Ms Button parked the car on the nature strip behind the police car. When they arrived Constable Blake and Mr Whiteley were at the driveway gate about 4 or 5 metres from them. The 2 men were shouting. Karyne Button had her passenger side window down a few inches. Both women observed what was happening until the men went out of view as they walked away down the driveway.
  42. Constable Blake was aware of the steps prescribed in the police operation manual following application of OC spray. He contacted the radio room. He said “I’ve had to deploy, deploy spray. I’ve got one in custody. Can you get a unit to come to 20 Jones Street to assist, ah, reasonably quickly”. RDS sent a general radio message asking for officers available to attend. Constable Burbury was one of the police officers made aware of the report. She was at Campbell Town and busy undertaking office duties. Constable Blake made a follow up call requesting the divisional van. At 9.03 am Sergeant Dean McMahon was the officer in charge of the Launceston station. He heard the Radio Dispatch Services transmissions and thus became aware of Constable Blake’s call for assistance and that OC spray had been deployed. He immediately requested Senior Constable Greenland and Junior Constable Doherty to leave from Launceston in the Divisional van.  Sergeant McMahon also decided to attend himself. Constable Greenland also heard the radio call which she described as an “urgent call for assistance”. Part of the radio exchange included the words from RDS “He seems to be in a bit of strife so skates would be good”. At the same time Acting Inspector David Bray was about to come on duty. He was at Prospect not far from the Bass Highway and heard the transmissions. He thought he would be closer to Westbury and could get there more quickly than the divisional van so he decided to go to the address. At the time he was acting as district supervision inspector and one of his functions was to ensure the safety of officers.
  43. After having made the radio calls to RDS Constable Blake followed Mr Whiteley to keep him under observation. He advised him, as part of what is referred to by police officers as “after care”, to put water on his face to relieve the stinging and other effects of the OC spray. Mr Whiteley continued to abuse him saying things like “You shouldn’t have done that” and “you didn’t have to do that”, also calling him names and telling him to “fuck off”. The two men then entered the house through the back door. While in the house Mr Whiteley went into the bathroom and washed his head with the shower. Mr Whiteley then went out the front door to the landing, looked at Ms Button and Mrs Button sitting in their car and said “Thanks very much, thanks very fucking much”. He turned to Constable Blake and again said “And you can fuck off too, go on, fuck off”. While Mr Whiteley was in the house on the first occasion, Karyne Button’s husband Leslie and her father Leonard Clark arrived in another car and parked on the side of the road.
  44. Mr Whiteley then walked around the house three or four times in a clockwise direction with Constable Blake following one or steps behind. Mrs Button asked her daughter to move the car to the other side of the road thinking it may calm Mr Whiteley down because she could see that he was becoming increasingly agitated with his chest puffed out and his shoulders back.
  45. Aware that he had missed a phone call from his son Mr Brzeski phoned back. Mr Whiteley answered. He was upset and mentioned “capsicum spray” but was difficult for his father to understand. Mr Brzeski decided to immediately go to the house. Between three and five minutes later, when she and her husband were driving to the house, Carolyn Brzeski phoned and spoke to Mr Whiteley. He sounded agitated and told her “I’m being followed around by a cop and it’s pissing me off, pissing me off”. He also said words like “they just need to leave me alone…I’m going to fucking kill someone”.  Then he stopped responding to her although before the call ended she heard him call his dog “Skye” in the background. On one of the laps of the house Karyne Button saw Mr Whiteley talking on his phone.

    The critical incident:

  46. 46 After walking around the house Mr Whiteley went inside. Constable Blake followed him in. Constable Blake continued to advise Mr Whiteley about how to treat the effects of the OC spray but Mr Whiteley remained agitated and abusive. He called Constable Blake a “knob head” and said something like “I’ll take you on; I’ll show you what it’s all about”. Mr Blake again went to the bathroom and put water on his face. He then walked to an area near the back door and produced a bag of frozen vegetables from the freezer section of the refrigerator and held the vegetables against his face. Constable Blake was, at that time, standing in the kitchen area immediately inside the back door. By then Constable Blake knew from RDS that Acting Inspector Bray was on the way and expected that he would be there soon.
  47. Without further warning Mr Whiteley dropped the bag of vegetables and set upon Constable Blake. He punched his head repeatedly with both fists. With the first punch Constable Blake’s eye glasses were knocked off and fell on the floor. Constable Blake adopted a defensive posture by putting his head down and his hands up but Mr Whiteley continued to punch him to the top and side of his head. Constable Blake fell or was forced to the floor and lay partly on his right side. Mr Whiteley stood over him and continued to punch him to his head and kicked him to his ribs, legs and arms. Constable Blake felt afraid and woozy from the effect of the punches and started to believe that his life was in danger. Mr Whiteley continued to punch while saying “I’ll kill you, I’ll kill you”. Mr Whiteley reached for Constable Blake’s utility belt and, fearing that the pistol may be taken, Constable Blake covered the holster with his hand. Instead Mr Whiteley took the OC spray canister and sprayed it to Constable Blake’s face from a close distance. Instinctively Constable Blake clenched his eyes but the spray caused him to gasp for breath. Momentarily Mr Whiteley stood up and stepped back, perhaps because of the effects of the spray, and Constable Blake scrambled to his feet. At that moment Constable Blake was gasping for breath, without his glasses and with his vision impaired by the effects of the OC spray. He saw Mr Whiteley’s shape in the frame of the back door behind him. Constable Blake could make out no detail but believed Mr Whiteley took a step towards him. He heard him say again “I’ll kill you”. Constable Blake drew his pistol and fired one shot in Mr Whiteley’s direction. He attempted to fire the pistol a second time but it jammed and did not discharge. He tried to clear the gun by pulling back the slide to clear the jam but did not have a sufficient grip.
  48. Mr Whiteley then moved away and went out the back door. Constable Blake did not know whether the shot he fired had struck Mr Whiteley. Constable Blake also went out the back door. He turned left toward the driveway. On the way he saw Mr Whiteley near the driveway but to his right. Constable Blake then saw Mr Whiteley fall on to his back and assumed at that moment that Mr Whiteley had been struck by the bullet. Constable Blake made his way by crawling or staggering down the driveway towards the road. He was met by Geoffrey Clark and Les Button. He reached the front gate. Constable Blake was carrying his pistol as he made his way down the driveway but then re-holstered it.
  49. The noise of the struggle inside the house and the gun shot were heard by those outside the house, Karyne and Sheen Button, Leslie Button and Geoffrey Clark.  All heard raised voices and loud banging. Karyne Button thought it sounded like a demolition site. After what he described as “about four minutes of brawling” Mr Clark walked to the open front door of the house to investigate. He did not enter and started to walk back towards his car. As he did so he heard the shot. He walked to the driveway and looked down towards the rear of the property and saw Mr Whiteley walk out from behind the shed and fall to the ground. He then saw Constable Blake emerge and come down the driveway. Mr Clark and Leslie Button met Constable Blake and helped him over the front gate. Constable Blake appeared to have been the subject of considerable physical force and those present were concerned about his condition. Constable Blake asked for some water to wash his face because Mr Whiteley had sprayed him with capsicum spray and had been “standing over him, kicking him”. Constable Blake said that he had shot Mr Whiteley with his pistol but did not know where. Karyne Button heard him say “I’ve shot him, I’ve wounded him”. Mr Clark looked down the driveway and saw Mr Whiteley on the ground but moving and “looking up and around”.
  50. Constable Blake then made a radio call including the words “…urgent, I’ve been attacked. I’ve had to use my firearm. I need an ambulance quick”. At the time the radio message was sent Acting Inspector Bray was almost to the house arrived at the scene within about 90 seconds. He described it as “chaos”. Constable Blake was kneeling on the footpath in a distressed condition leaning with his arms on the front gate. He had blood on his head, his shirt was unbuttoned and his tie removed. He was wearing his utility belt with the firearm in the holster. Constable Blake said to Acting Inspector Bray “Dave, I was under attack and I shot him”.
  51. Acting Inspector Bray left Constable Blake and ran to Mr Whiteley who was lying at the end of the concrete formed driveway where the driveway opened out onto the back yard. Mr Whiteley was lying face down with his head on crossed arms. A police issue OC spray canister was on the ground near his feet. Acting Inspector Bray placed Mr Whiteley in the coma position, checked for and found a strong pulse. Mr Whiteley was conscious with some eye movement but was mostly unresponsive. There was blood on the ground where he had been lying. Acting Inspector Bray stayed with Mr Whiteley while waiting for an ambulance but noticed Mr Whiteley’s pulse fading.
  52. Sergeant McMahon arrived at the scene shortly after Acting Inspector Bray. After speaking briefly to Constable Blake at the front fence Sergeant McMahon went to where Mr Whiteley was lying. Acting Inspector Bray was leaning over him. Sergeant McMahon noticed that Mr Whiteley was alive but struggling to breathe. After a brief conversation with Acting Inspector Bray, Sergeant McMahon returned to Constable Blake and seized his firearm. It was taken from the holster. Sergeant McMahon observed that the slide of the pistol was locked back with the magazine still in the receiver and a live round stuck in the barrel. He returned to Constable Blake who appeared highly emotional and who said to him “he bashed the shit out of me, he bashed the shit out of me, he was trying to kill me…he sprayed me”.
  53. At that time Martin Brzeski and Carol Brzeski arrived at the house.
  54. The first ambulance arrived at 9.36 am with Ambulance Officer Chapman and a volunteer officer. By then several police vehicles were already present. Mr Chapman spoke briefly to Constable Blake at the front fence and although concerned about his welfare was directed to Mr Whiteley. Mr Chapman took over from the police officer that had been attending Mr Whiteley. He saw blood on the left front of Mr Whiteley’s shirt. He checked and finding no pulse commenced CPR. Mr Whiteley’s airway was cleared and he was ventilated. Sergeant McMahon assisted with continuing chest compression. After the arrival of other ambulance officers a cardiac monitor was attached with a poor response. Active resuscitation attempts including CPR, adrenaline and other procedures continued for about 30 minutes. However there was no response to the treatment and resuscitation attempts were ceased at 10.08 am when it was determined that Mr Whiteley had died.

    Matters relevant to the Findings:

    Investigations following Mr Whiteley’s death:

  55. 55 The coronial investigation was conducted principally by the internal investigations section of Tasmania Police. The investigation included physical examination of the scene, interviews of more than 70 police and civilian witnesses, a post mortem examination of Mr Whiteley, forensic and ballistic investigations and investigation of medical and other records concerning Mr Whiteley and Constable Blake. It is unnecessary for me to set out in detail all of the investigation evidence and will refer to only those aspects of it to which resort is necessary for the making of the findings required under the Act and the comments and recommendations I will make.
  56. The post mortem examination of Mr Whiteley was conducted at the Royal Hobart Hospital on 29 November 2010 by Dr Donald Ritchey of the Office of the State Forensic Pathologist. Dr Ritchey observed a single gunshot wound to the front left side of Mr Whiteley’s abdomen. No gunshot residue around the wound was observed. There was no exit wound and a markedly deformed partially jacketed medium calibre bullet was recovered from the soft tissue near Mr Whiteley’s back and a small metal bullet jacket fragment was recovered from near his spine. The trajectory of the bullet wound is from left to right, rearward and slightly downward. The wound perforated the diaphragm and several organs of the abdomen including the aorta. There is a fracture of the L2 vertebrae. Dr Ritchey concluded that the bullet wound led to severe internal bleeding and caused Mr Whiteley’s death.
  57. Dr Ritchey’s findings were not challenged and I accept them and find in accordance with them.
  58. Gerard Dutton is a sergeant of Tasmania Police in the Ballistics Section, Forensic Services in Hobart. Sergeant Dutton is a forensic firearms investigator highly experienced in the study of firearms and also in gunshot wound interpretation. He attended the scene on 28 November 2010 and later carried out further investigation. He went into the house at 20 Jones Street at 2.50 pm and conducted a detailed search, in particular in the kitchen, looking for the fired cartridge case from Constable Blake’s pistol. Initially no case was found. At about 6.00 pm Senior Constable Simon Triffitt, who was at that time attending to supervise collection of animals from the house by members of Mr Whiteley’s family, accidentally kicked a metal object on the concrete surface about 1½ metres outside the back door near the covered section. He saw that it was a cartridge case. He picked it up and told Sergeant Dutton about it. He informed Sergeant Dutton where he had found it and Sergeant Dutton took possession of it.
  59. Sergeant Dutton was asked to examine the firearm taken from Constable Blake at the scene. It is a Glock self-loading pistol model 17. It was in working order and capable of being fired. The trigger pressure was normal and it was not prone to accidental discharge. The safety mechanisms were all operating correctly. Its service history disclosed no faults. The fired bullet and fragment of jacket recovered from Mr Whiteley’s body were also examined. Sergeant Dutton confirmed that the bullet had been fired from Constable Blake’s pistol. Sergeant Dutton conducted ejection tests with the pistol and found that as is usual for that type of firearm the fired cartridge cases ejected generally to the right and mostly slightly to the rear. The maximum ejection distance produced during the tests was 1.95 metres although the behaviour of ejected cartridges is variable and difficult to predict, particularly if ejected onto hard surfaces. Even so, Sergeant Dutton concluded that, assuming the gun was fired in the kitchen of the house, the presence of the fired cartridge case where it was found outside the back door is unlikely to be explained solely by the ejection characteristics of the pistol. In Sergeant Dutton’s view that the location of the cartridge case, assuming the gun was fired in the location described by Constable Blake, is likely explained only by it being moved by the action of a person or animal sometime between when it was fired and when it was found.
  60. When the pistol was received by Sergeant Dutton the mechanism was jammed. No faults with the mechanism were discovered. The piston had a live cartridge half way chambered and the slide, which is the portion on top of the pistol which operates back and forth, was jammed three quarters of the way back by the next cartridge in the magazine pressing up against the bottom of the breech bolt. Sergeant Dutton’s opinion is that the most likely explanation for the jam was that at the time of firing the pistol was not held firmly, thus dissipating the recoil energy that normally drives the slide to the rear and affects the ejection and reloading cycle of the pistol.
  61. Chemical tests of Mr Whiteley’s clothing disclosed the presence of firearm propellant but it was sparsely distributed. Sergeant Dutton conducted proximity tests involving assessment of the distribution of propellant from the pistol when fired on a target at various distances from which he concluded that that the distance between the gun and Mr Whiteley at the time of discharge was between 50 centimetres and 1.2 metres, most likely somewhere in the middle of that range.
  62. Sergeant Dutton’s findings and opinions were not seriously challenged and I accept them and find in accordance with them.
  63. Constable Blake was medically examined at the emergency department of the Launceston General Hospital at 10.56 am on 28 November 2010. The examination revealed bruising and a small haematoma over his right forehead and cheekbone area. His left ear was bloody and swollen with a small laceration. His jaw was tender. There was significant bruising and tenderness over the fourth to eight ribs on the left side. There were also some grazing and bruising on his left hand. He was discharged home. CT scans and X-rays were normal. Constable Blake was photographed by the police photographer on 28 November and again on 29 November. The photographs show obvious bruising across his forehead, especially around his right eye and both ears, and bruising to his hands, arms, legs and torso. He saw his general practitioner Dr Tim Flanagan on 1 December 2010 complaining of much body discomfort, nausea and vertigo and his physical presentation was consistent with his complaints. Dr Flanagan’s report describes extensive soft tissue injuries, bony tenderness to the skull, rib cage and spine and post concessional syndrome.

    Discussion and assessment of evidence concerning Constable Blake’s account:

  64. Most of the findings I have made are uncontroversial. However there are a number of aspects of the evidence that are challenged, contested or uncertain and about which some explanation of my findings should be given. I would first make some general remarks. The narration of events I have set out reflects a finding that I accept the evidence of Mrs Karyne Button and substantially, but not entirely, accept the evidence of Constable Blake. Mrs Button was an impressive witness and gave what I consider to be the most reliable account of the events that took place outside the house on that morning. Of course the findings include acceptance of other aspects of the statements and evidence of other witnesses as well.
  65. The aspects of the evidence that I would comment on specifically are as follows.
  66. The first is the account of Constable Blake. No-one else was present at the time that the shot that fatally injured Mr Whiteley was fired. Thus, much depends on my assessment of his credit and reliability and my assessment of his evidence in the light of the evidence of others and the physical evidence. Constable Blake participated in four police interviews. The first two were both conducted on 28 November 2010, the day of Mr Whiteley’s death. On 6 December 2010 Constable Blake participated in a further interview and a walk through interview. Audio visual recordings were made of all the interviews, including the walk through interview. Constable Blake also gave evidence at the inquest and was cross examined.
  67. I formed the impression that the language he used at times when giving evidence or participating in interviews was prone to be overstated. For example in one of the descriptions he gave of his meeting with Mr Whiteley earlier in 2010 at Bracknell he described it as going “fantastically well”. Moreover, the language he used to describe events was not entirely consistent over the series of interviews. The language he used during the interview of 6 December 2010 at the police station was more expansive and led me to the impression that he was, at least to some extent, reconstructing events. In the earlier interviews his manner was subdued and his narration of events was factual and considered. In his later interviews he tended to be more descriptive and to use stronger adjectives. No doubt this was influenced by his wish to convey adequately to the interviewers the gravity of the situation in which he found himself, but nevertheless it is a factor to take into account in the assessment of his evidence.
  68. However in all material respects I accept the substance of his account as reflected in my findings. Subject to the comments already made his evidence is internally consistent and it is consistent with the other direct and circumstantial evidence. Moreover his evidence is corroborated in several important ways. I will refer to only the most relevant.
  69. Those persons outside the house while Constable Blake and Mr Whiteley were inside all confirm that there were sounds of a prolonged and noisy struggle with loud banging and raised voices prior to the sound of a single gunshot. Constable Blake’s physical appearance and presentation after he emerged from the house is consistent with a violent physical struggle and the application of force and OC spray to him. The observations of him by Mr Clark and Mr and Mrs Button and Acting Inspector Bray all strongly confirm that Constable Blake was in a highly distressed state and had been subject to considerable physical force. He appeared injured and his shirt was torn. Constable Blake’s immediate complaints to Mr Clark, Karyne and Leslie Button and Acting Inspector Bray are consistent with his account. They were made at a time and in circumstances which suggest that the statements he made are likely to be truthful. He had no time and was not in a fit state to compose a false story.
  70. Constable Blake’s description of Mr Whiteley’s behaviour on that day does not suggest it to be incongruous or out of character. It is consistent with Mr Whiteley’s behaviour and mental state in the period leading up to that day and with the appearance and behavioural characteristics observed by Karyne Button and Sheena Button immediately before the men went inside the house. That is so even though Mr Whiteley had not previously resorted to the level of violence he then displayed.
  71. The physical evidence of the scene, with one exception I will specifically refer to, is consistent with and corroborative of Constable Blake’s account. Located on the floor of the kitchen in the corner area of the wall opposite the back door was Constable Blake’s eye glasses and buttons from his police shirt. Bags of frozen vegetables were found. The location of the eye glasses and buttons tends to confirm the location and nature of the struggle he described. The ballistics examination of the pistol is consistent in all respects with Constable Blake’s account and tends to support it. Sergeant Dutton’s evidence about the gunshot wound does not cause me to doubt that the gun was fired in the circumstances Constable Blake described.
  72. Some evidence was given, particularly by Karyne Button, that there may have been a pause between the loud noise that she and others heard and the gun shot. A substantial pause may suggest that Constable Blake may have had more of an opportunity to consider or measure his actions before discharging his weapon of that Mr Whiteley no longer presented such an immediate threat. I would reach no such conclusion. The evidence of the pause is vague and uncertain and the evidence points overwhelmingly to the conclusion that Constable Blake remained subject to a sustained and violent attack and that he believed his life was in danger.
  73. One area of uncertainty attends the location in which the fired casing from Constable Blake’s firearm was discovered. According to Constable Blake the he was in the kitchen away from the back door when he discharged his weapon. The unexplained presence of the cartridge casing outside the back door is a circumstance inconsistent with that version. However there is no other physical or circumstantial evidence that supports a finding that the shot was fired outside the house. To the contrary, the evidence otherwise overwhelming supports the conclusion that the gun was discharged in the location described by Constable Blake. Further, the presence of the casing outside the door is not unexplained. It may have found its way to that location by a number of means. Though unlikely it may have bounced outside the door after ejection from the pistol. There a number of hard surfaces, including the floor and furniture, with which it may have made contact. More likely is that the casing was moved by some human or animal intervention. Either Mr Whiteley or Constable Blake may have come into contact with it as they moved from the kitchen out the door. The dog was present. Further, police officers who came in later may have unintentionally and unknowingly moved it.

    Discussion and assessment of other aspects of the evidence:

  74. There is some difference between the evidence of Constable Blake, Karyne Button and Sheena Button about the exchange between Constable Blake and Mr Whiteley before the two men went inside the house for the first time. In particular they gave different versions of the interaction between the two men at the gate immediately before the application of the OC spray. Moreover Constable Blake had no memory of using his baton. As to those conflicts of evidence I have found in accordance with Karyne Button’s account. I found her to be an impressive witness and to give the most reliable account. As between her and Sheena Button she had the best view and was best able to see and hear. Constable Blake was in a stressful situation and agreed that he may have not remembered some aspects of those events. The application of the baton was confirmed by the post mortem examination of Mr Whiteley.
  75. The content of the conversation between Ms Button and Constable Blake on the morning of 28 November 2010 before he went to 20 Jones St is the subject of evidence and submissions. The conversation illuminates what Constable Blake knew before attending and what his state of mind was when he arrived. In the course of her interviews and evidence Ms Button said that she told Constable Blake that she thought that two officers should attend. I am not satisfied that she did so. She agreed that it may have been what she thought rather than what she said or, even more likely, expressed a thought that occurred to her later after discussion about issues relevant to that day. Ms Button also said that in her discussion with Constable Blake about Mr Whiteley being easily provoked Constable Blake responded with the words, “I can handle him. I’ll lock him up in a cell and he’ll cry like a baby” or something to that effect. Although Ms Button insisted that Constable Blake used words like that her evidence about the conversation was generally uncertain. I regard it as likely that some discussion took place which reflected Constable Blake’s confidence that he could deal with Mr Whiteley but I am unable to determine just how he expressed that.
  76. Some uncertainty attends the phone calls made by Mr Whiteley on or following Constable Blake’s arrival. I am satisfied Mr Whiteley made the first call to his father, I infer to tell him that a police officer had arrived. I regard it as likely that this call was being made as Constable Blake arrived and is the reason Constable Blake saw Mr Whiteley on his phone near the front door at that time. The next call was Mr Brzeski phoning back after he became aware of a missed call to his phone. By this time OC spray had already been applied to Mr Whiteley because it was mentioned during the conversation between Mr Whiteley and his father. Although not free from doubt, I find that this call is likely to have been received by Mr Whiteley when he was in the house for the first time. Constable Blake observed his to have been on the phone in the bathroom on one occasion and I find it was the first time. That it so because the next call was made a few minutes later by Mrs Carol Brzeski. I consider the most likely scenario to be that this call was made while Mr Whiteley was walking around the house being followed by Constable Blake, and was the phone call observed by Karyne Button during that time. Constable Blake was interviewed and gave evidence about the phone calls but he was uncertain and I regard his recollection of the order and place of the phone calls to be unreliable. It was suggested to him that the final phone, when he said that he was “pissed off” and was going to “fucking kill someone” took place in the bathroom when he went inside with Constable Blake on the second occasion. I regard that as the less likely scenario. I accept as truthful Constable Blake’s evidence that he did not hear those words. I regard it as likely that he would have heard them if they had been said inside the house on the second occasion and would likely have made Constable Blake very wary. I am satisfied that the words were said outside the house as Mr Whitley and Constable Blake were walking around and thus in circumstances which better explain Constable Blake why did not hear them.
  77. There is some conflict in the Karyne Button’s evidence about what Constable Blake said about his intention when firing the pistol. During one interview Mrs Button asserted that Constable Blake used the words “shot to wound”. Although her police statement was made when events were likely more fresh in her mind, I regard it as more likely that Constable Blake did not use those words. First, other witnesses such as Mr Clarke and Acting Inspector Bray asserted that Constable Blake referred to having “wounded” Mr Whiteley. Second I have found that the shot was fired in circumstances which make it most unlikely that Constable Blake would have formed such an intention as the phrase “shot to wound” suggests.
  78. Some inconsistency emerges between the statements of Carol Brzeski about what Mr Whiteley said to her on the phone. In one instance she said he told her he was going to “kill him”. She also said he used the words “kill someone”. I prefer the latter version although not much turns on it because of my finding that Constable Blake did not hear those words. In any event it does not necessarily reflect an intention at that time to actually carry out that threat.

    Summary and finding:

  79. After assessment of all the evidence I am satisfied to the appropriate standard that Constable Blake discharged the shot that caused the fatal injury to Mr Whiteley in the location and in the circumstances he asserted, that is in the kitchen inside the back door when he was being attacked by Mr Whiteley. Given the nature and extent of Mr Whiteley’s attack I find also that at the time he fired his pistol Constable Blake had a genuine and honest belief that he was in imminent threat of death or serious injury, that some force was necessary to defend himself and that the level of force he used was not unreasonable in the circumstances as he believed them to be.

    Other matters:

    Police policies and procedures:

  80. The circumstances of Mr Whiteley’s death bring into focus some of the Tasmania Police policies and procedures. The Police Service is established by the Police Service Act 2003. By s93 of the Act the Commissioner must cause a document known as the Police Manual to be published.  The Police Manual is to contain any orders, directions, procedures and instructions issued by the Commissioner as the Commissioner considers appropriate.
  81. The Police Manual includes the following policies:
    1. 7.1 Arrest;
    2. 7.2 Custody;
    3. 7.4.2 Medical Treatment of Persons in Custody;
    4. 7.7 Death of Life Threatening Injury in Custody;
    5. 10.2 Police Firearms;
    6. 10.6 Oleoresin Capsicum Spray;
    7. 10.7 Use of Force;
    8. 10.8 Non-Lethal Force;
    9. 10.9 Non-Lethal Weapons and Equipment;
    10. 10.10 Lethal Force;
    11. 10.11 Post police Shooting Procedures;
    12. 12.5 Radio and Telephone Communications;
  82. In addition Tasmania Police has training manuals including:
    1. OC Spray Manual;
    2. Baton Manual; and,
    3. Firearms Assessment Manual.
  83. I do not propose to refer to all of the provisions of the manuals and policies that have been tendered, only to the parts of particular relevance to this inquest.
  84. It is the policy of Tasmania Police that police officers should only resort to the use of force when necessary and only to the extent required for the performance of duty in accordance with the law and departmental policy.[16] Non-lethal force is justified to protect the officer or another person from harm, to restrain or subdue a resisting individual or to bring an unlawful situation safely and effectively under control.[17] The type and level of force to be applied is judged against a “use of force continuum” ranging from mere presence to unarmed tactics, use of handcuffs or a baton, deployment of OC spray and application of lethal force by firearm. The continuum recognises that an officer may apply the appropriate level of action at any level, and not necessarily in ascending order, depending on his or her assessment of the circumstances.[18]
  85. OC spray provides a less than lethal force option. It is to be used to prevent serious injury and for its use to accord with the manual there must be a real threat, its use should be the minimum amount of force required and must be necessary.[19]  If possible a verbal warning should be given prior to use.[20] It may only be used:
    1. in violent situations or those involving serious confrontation to prevent serious injury to any person;
    2. where an officer is being assaulted, or believes on reasonable grounds that they are about to be assaulted;
    3. where a person is involved in violent, or other physical conduct which is likely to cause serious injury to themselves or result in suicide; or
    4. to deter attacking animals.[21]
  86. Tasmania Police has adopted national guidelines for the application of lethal force which require that officers should not use firearms against another person except:
    1. in self-defence or defence of others against imminent threat of death or serious injury;
    2. to prevent perpetration of a particularly serious crime involving grave threat to life;
    3. to arrest a person presenting such a danger and resisting their authority or to prevent his or her escape; and
    4. when less extreme means are insufficient to achieve these objectives.[22]
  87. The lethal force policy also provides that, where practicable, an officer intending to use a firearm shall identify themselves as police, give clear warning of their intent to use firearms, ensure time for observation of the warning unless it would create undue risk to the officer or others or is inappropriate or pointless.[23]

    The Single Member Response Model:

  88. During the investigation and the inquest a considerable amount of time and attention was devoted to analysis of the Tasmania Police Policy called the Single Member Response Model.[24] That is so because the coronial investigation involves consideration of:
    1. whether police officers should be requested or permitted to perform police duties alone; and
    2. whether Mr Whiteley’s death may have been avoided if Constable Blake had not been alone.
  89. In Tasmania a police officer may perform a duty on his or her own. The police officer may be requested to do so, or do so on his or her own initiative. The Single Member Response Model (which I will sometimes refer to as “the Model” or “the SMRM”) was put in place in November 2008. It contemplates that a “high proportion of police tasks undertaken by police can be, and are, safely completed by a single member response”.[25]  The model is intended to control risk when a police officer is responding alone or “one up”. The alternative to being “one up” is to attend with a partner, not surprisingly called “two up”, or in a larger group of officers.
  90. The SMRM is a three page policy divided into sections entitled Policy, Critical Incidents and Training and Support. It is expressed to “provide protection and support for police officers responding alone to incidents involving personal risk”[26]. It is based on a “risk management process supported by training, intelligence and procedure”[27]. It applies whether an officer is attending one up on his or her own initiative, at the request of Radio Dispatch Services on the instruction of a senior officer. In all cases it provides for the examination of the circumstances of the required response and all relevant intelligence being obtained and considered before attending.[28]  Single officers should not respond if there is an “unacceptable risk” to safety[29] and the decision as to the level of response is for the individual officer “based on the “risk assessment and risk management strategies adopted”.[30]
  91. I will set out the part of the policy headed “Critical Incidents” in full:
    1. 2.1 Where an incident has the potential for serious injury to be caused to the attending member, single members should take appropriate action, which may include withdrawing from the scene to a safe area until sufficient additional resources are in place. Only then should police return to the scene.
    2. 2.2 The Commissioner has directed that members who take such action, in compliance with this policy, will receive the full support of senior officers in the event of any concerns being raised.”
  92. The SMRM does not prescribe the circumstances in which a police officer may or may not attend one up. It provides that “the over-arching principle … is the potential for serious injury to be caused to the attending member”[31]. At best the policy provides a non-exhaustive list of circumstances where the presence of more than one police officer is indicated. Thus in most cases the policy depends very much on the judgment of the attending officer and the completeness and accuracy of the information available to the officer at the time a decision is made.
  93. A number of police officers, some of very senior rank, gave evidence at the inquest about the development and implementation of the policy. Police officers have a job which almost inevitably sometimes involves some level of danger. Single officer patrols have been conducted in Tasmania for many years prior to the implementation of the policy and are conducted in every jurisdiction in Australia except for Western Australia. From the evidence I heard during the inquest I formed the clear view that the SMRM does not really alter the manner in which an officer is to exercise judgment about whether an officer should attend to a task alone or with one or more other officers or, having attended alone, whether to continue without back-up. The effect of the evidence of Assistant Commissioner Phillip Wilkinson is that the SMRM, rather than implement substantial change, formalises the decision making process which has in practice always existed and also makes clear that a decision of an officer to not attend one up will be supported at a senior level by Tasmania Police. He described it as providing a “framework for the officers to delay a response when they assess that the risk is unacceptable”. Inspector Adrian Bodnar was asked by the Acting Commissioner to review the policy after Mr Whiteley’s death. He concluded that even those officers that had not received formal training in the model had a good understanding of it because it represented a formalisation of the way in which police officers have always responded. He concluded that police already applied risk assessment and management strategies similar to those reflected in the model. First Class Constable Warrington, an operational skills trainer at the Rokeby Police Academy described the single officer policy as a “basic reflection of standard operational skills”. He agreed that in his experience police officers have always been required to attend some jobs on their own and one of the operational skills he teaches is “assessment techniques to enhance safety”. He saw the SMRM as expressing and emphasising the importance of those safety considerations.
  94. Assistant Commissioner Wilkinson also frankly and realistically indicated that the abolition of single officer patrols would place increased budgetary demands on Tasmania Police in an environment where there is already competition for limited government resources. Such demands would likely have a flow on effect on the provision of police services. Abolition of single officer responses would alter, he said, the operational structure of some parts of Tasmania Police, particularly in country or remote areas. Whilst Assistant Commissioner Wilkinson acknowledged that no detailed analysis has been undertaken of the impact of abolition of single member patrols my inclination is to accept his view that the impact would be considerable. Inspector Bodnar also acknowledged the advantages of the single officer response to the efficient delivery of police services. The natural tension between the safety of an officer and productivity and resourcing was acknowledged.
  95. The Model must now be considered in the context of the Work Health and Safety Act 2012. By s19 of that Act a person conducting an undertaking has a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers including by the provision and maintenance of safe systems of work. What is reasonable practicable is determined in accordance with s18 and includes the likelihood of risk, the degree of harm that may flow from it, the availability and suitability of ways of eliminating or reducing the risk and whether the cost of doing so is “grossly disproportionate” to the risk.
  96. The police officers who gave evidence at the inquest had varying levels of knowledge of the model. Most said however that that they were aware of the police practices upon which the model is based. Constable Burbury expressed that concept in terms that “common sense dictates when you need to pair up with someone”. Constable Blake said that he had a “good working knowledge” of the Model.
  97. Many factors are relevant to each decision about whether a response from more than one officer is required. I cannot list them comprehensively but it seems to me that they may include the experience, judgment and capacity of an individual officer, the nature of the task to be performed, the level and availability of support available should it be unexpectedly required in the course of the task and the location and the time of day at which the task is required to be performed. Also relevant is the information available to the officer about the persons involved with the task including from police data bases, information obtained from the public and from the personal knowledge of the officer. Information may include whether the person has been affected by alcohol or drugs, suffers mental illness, has a record for or propensity to violence or has made threats of violence and may have access to firearms or other weapons.
  98. Presently tasks are categorised within the police service so as to enable a shorthand understanding of the type of duty it may involve. For example a report of a family violence incident will be referred to as such and will almost invariably require a two up response because of the known risks to police attending such incidents. On the other hand another category of task is referred to as “keep the peace”. The task to which Constable Blake was asked to perform was categorised as a “keep the peace”. There is no definition of a “keep the peace” job but it usually involves two conflicting parties coming together for some reason, perhaps the handover of property or children or access to a property. It usually involves a police officer attending and, by their mere presence and supervision, ensuring that parties between whom there may be some ill feeling are well behaved. Such tasks are common and are mostly performed by a single police officer. Despite the reference to “peace” in the task description the evidence of most of the police officers at the inquest was that such jobs rarely involve violence or the threat of violence and can safely be performed “one up”. 
  99. An assessment of the operation of the Model must take into account that the judgment of individual officers is fallible. The exercise of judgment may be affected by lack of information. It may be affected by over confidence or overestimation of capacity to deal with a situation safely. Conversely a decision to attend alone may be influenced by reluctance to request assistance, despite indications of support from senior officers, arising from a wish to avoid the perception of being inadequate, incompetent, and demanding or a burden. There is also a natural tension between an officer’s own safety and his or her duty to uphold the law and protect the safety of others. It is also the case that decisions of individual officers will only infrequently be subject to any form of independent assessment, at least before the event.
  100. The reference in the policy to “intelligence” includes the information available on police data bases. Tasmania Police maintains or has access to certain information and data systems to provide information about persons. Most data bases may be accessed by individual officers but are also commonly accessed by RDS. Part of the function of RDS is to obtain and convey relevant information to officers although under the Model RDS is not to usurp the judgment of the attending officer. The police data bases included:
    1. Intrepid Central Inquiry, referred to as ICE, which provides information including full names and personal details, photographs, a physical description, prior convictions and outstanding criminal charges and details of firearms licences held. ICE also provided a link to Information Data Management, referred to as IDM, which provides a broader and more detailed range of intelligence information about persons including reports of violence or aggression.
    2. The family violence management system, referred to as FVMS, which provides records of all family violence incidents reported to police;
    3. The offence reporting system, referred to as ORS, which provides details of all offences formally reported to the police including but not limited to information about the offence alleged to have been committed, dates, locations, victims, suspects and witnesses.
  101. A decision to attend one up is of course made on the basis of the information available to an officer prior to attending. However the decision remains subject to review as events unfold. As was explained by Constable Warrington, every interaction between a police officer and an offender or potential offender is a “dynamic situation”.  In other words, circumstances may change or develop, sometimes quickly and dramatically. If circumstances change then an officer may at any time withdraw and wait for the attendance of another officer or officers. Constable Warrington also referred to the concept of a “vortex”. By that term he referred to a situation whereby the focus of an officer is narrowed by the escalation of events and the officer becomes drawn into the situation and a decision to disengage is difficult.   

    Implementation of the Single Member Response Model in this case:

  102. The task that Constable Blake was asked to perform was referred to as a “keep the peace”. Such jobs are usually performed by police officers “one up” and the substance of the evidence was such that it is normally assumed that tasks so described will be performed alone.  Constable Blake’s decision to attend alone was based on a range of factors including the categorisation of the job, his previous experience with Mr Whiteley, the information he had been given about what was required and who was involved and his confidence that he was able to handle the task without another officer. However there were a number of factors in this case which militated against Constable Blake attending 20 Jones Street on his own. Some of those factors were known by Constable Blake and some were not.
  103. Mr Whiteley was 21 and a young strong and fit man, larger in build than Constable Blake. He had a recent history of poor mental health. Constable Blake was 57 and physically much smaller. On that day Constable Blake was working alone and responsible for covering a very large area in the Deloraine subdivision. He was at Westbury and the closest police support was at least 20 minutes away. There was no plan or strategy in place about who was to provide immediate back up were it required. At the time he was asked to perform the “keep the peace” job it was suggested by RDS that he make further inquiry about Mr Whiteley. Little other guidance and only basic information was given to Constable Blake by RDS.
  104. Sheena Button informed Radio Dispatch Services on 27 November 2010 that Mr Whiteley was unpredictable and could be violent. Constable Blake was advised on 28 November 2010 of the risk of violence and contemplated the use of OC spray. Both RDS and Constable Blake were aware that police attendance had been requested in the context of a difficult relationship breakdown. However Constable Blake was not aware of the possible implications for Mr Whiteley of the change of attendance time because of Mr Whiteley’s plan to have family members present for support. Nor was Constable Blake made aware of the indication given by Mr Whiteley in his text message to Ms Button that he would “change the locks”.
  105. Constable Blake’s radio comment that he “had just the thing” for violent people, which I took to be a reference to OC spray although it was not stated expressly, demonstrates a greater level of preparedness to resort to the use of capsicum spray than is appropriate. It may be that his remark may have, to some extent, have been in jest. However it flagged, before Constable Blake’s decision to attend alone and his attendance at the property, the real prospect that violence was possible. It also, taken with the conversation he had with Ms Button, reflected an overestimation by Constable Blake of his own ability to deal with the situation safely. No doubt he was influenced by his dealings with Mr Whiteley in March of that year which satisfactorily resolved but Mr Whiteley’s health and behaviour had deteriorated since then. Only brief consideration of the police data bases was made. The combination of all those factors led to what I regard as an incomplete assessment of the risk factors relevant to the decision to attend one up.
  106. Moreover any doubt about Mr Whiteley’s attitude was removed on Constable Blake’s arrival when Mr Whiteley’s antagonistic attitude was immediately apparent and then acted upon.

    Comment and recommendations:

  107. I do not consider it necessary or appropriate to recommend revocation of the Single Member Response Model Policy. A much broader and more comprehensive review of the Model and the operational and budgetary consequences of change than has been conducted during this inquest is required before any such recommendation may responsibly be made. Moreover I do not recommend a mandated or prescribed approach to determining whether a single officer response is appropriate in individual cases. Any attempt at definition or prescription simply serves to underline the vast array of factors relevant to such a determination. I have concluded that if single officer response is to be used at all then its appropriateness in each case will remain a matter for the judgment of the officer involved in conjunction with those responsible for the allocation of police to particular tasks.
  108. However this case does underline the need for reflection about and training for the manner in which the policy is implemented and consideration of the police practice underlying the policy.  The remarks which follow are to be considered in light of the statements I made at the beginning of these reasons, namely that it is not the function of an inquest to attribute any moral or legal responsibility or liability for a death or to hint at blame. Nor is it the function of the coroner to respond to vocational issues arising from individual cases. Recommendations are to be confined to identifying ways of preventing further deaths and comments should be only on matters connected with the death including public health or safety or the administration of justice.
  109. I am also mindful of the comments of Connor J of the Federal Court in McIntosh v Webster[32] in a passage adopted by the New South Wales Court of Appeal in Woodley v Boyd[33]:

    “[Arrests] are frequently made in circumstances of excitement, turmoil and panic and it is altogether unfair to the police force as a whole to sit back in the comparative calm and leisurely atmosphere of the courtroom and make minute retrospective criticisms of what a police officer might or might not have done or believed in the circumstances.”

  110. In Woodleigh v Boyd, Heydon JA also said:

    “And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.”[34]

  111. Mr Whiteley’s death followed a series of operational decisions made by Constable Blake each of are justified by reference to the terms of the police manual – the decision to attend one up, the decision to arrest Mr Whiteley, the decision to deploy OC spray, the decision to use the baton and the decision to remain with Mr Whiteley including by following him into the house without first waiting for other officers to arrive. Each decision required the exercise of judgment. In each case a different decision would also have been justified. That is Constable Blake would have been justified in making the opposite decision in each case and waiting for back up before proceeding.
  112. The initial decision to attend alone was made on the basis of incomplete information and without a sufficient and measured assessment of risk. The responsibility for obtaining intelligence about Mr Whiteley and the task to be performed was not clearly identified. Thereafter the importance of pursuing an arrest or providing after care for Mr Whiteley did not justify the risk to Constable Blake, and as events occurred the risk to Mr Whiteley, which arose when Constable Blake followed Mr Whiteley into the house alone. By proceeding into the house and placing himself in a position where escape was difficult in the event of an unexpected but not unpredictable escalation of violence Constable Blake placed his duty to care for Mr Whiteley and his duty to pursue the arrest ahead of his personal safety.
  113. These comments are not to be taken as a criticism of Constable Blake. As I have said each of the decisions he made was justified. Some of his decisions were made when he faced extreme circumstances with no time to think.  It must not be overlooked that the principal contributing factor to Mr Whiteley’s death was his own sudden and violent attack on Constable Blake. However reference to those matters is made as a way of pointing to ways of minimising the chance of similar future events and to demonstrate that in implementation of the policy the personal safety of police officers and the persons with whom they are dealing requires particular emphasis.
  114. Although the presence of another police officer on that day may not have prevented Mr Whiteley’s death it would, in my assessment, have reduced the likelihood of the unfortunate escalating series of events that led to that result.
  115. The Model currently gives little practical assistance to officers faced with the exercise of judgment about whether to perform a police duty as a single officer. It is expressed in general rather than specific terms and depends on concepts such as an “appropriate risk management strategy” and “where circumstances dictate” without particular guidance from or reference to measurable or identifiable risk factors except that safety is the “paramount consideration”. Examination of intelligence and reference of decisions to senior officers are to take place “where practicable”. If such factors are not to be referred to in the policy itself then proper risk assessment systems and training in and constant re-enforcement of the decision making process is critical. That involves training in not just the Model itself but the safe police practices that underlie the operation of the Model.
  116. Assessment of risk by classification of tasks into categories such as “keep the peace” demonstrates the difficulty. The range of circumstances within that description is likely to be broad and some will involve considerable risk even though the label currently leads to assumptions of safety. The distinction between a “keep the peace” suggesting a single officer response and a family violence matter requiring a multiple officer response will sometimes be very blurred.
  117. I have concluded that some amendment of the Model may address those matters. For those reasons I recommend that Tasmania Police devise and include in the Model a more structured and rigorous process for assessment of risk factors when deciding whether a task is appropriate for a single officer response. Such process:
    1. should identify risk factors and include guidelines for their consideration;
    2. should provide for allocation of responsibility between individual officers and RDS for obtaining and reviewing intelligence;
    3. should include guidelines for reference of decisions to senior officers in appropriate cases;
    4. should reduce or eliminate reliance on assessment of risk by reference to classification of tasks into fixed categories and instead should involve proper assessment of risk according to the circumstances of each case;
    5. should emphasise the importance of a continuing re-assessment of risk in the course of a single officer response and the paramouncy of personal safety at all times.
  118. I recommend that Tasmania Police deliver on at least a yearly basis continuing training to all officers, especially those in rural or remote areas, and Radio Dispatch Service operators not only about the Model itself but in the safe police practices on which the Model is based. It was submitted that the recommendation is unnecessary because such training has already implemented. Even if that is correct I regard it as appropriate to record the recommendation and to note that it extends beyond the terms of the Model itself.
  119. Counsel assisting the coroner also submitted that Tasmania Police undertake an assessment of the cost associated with abolition of the Single Officer Response Model in favour of mandatory multiple officer attendance. A proper continuing consideration of the costs and benefit of continuing the model should have the benefit of such an assessment. Counsel for Tasmania Police did not take issue with such a recommendation. Although a multiple officer response does not eliminate the risk of serious injury or death it must inevitably reduce it. For that reason such an assessment should take place and I recommend accordingly.
  120. I record my appreciation for the valuable and considerable assistance provided by Mr T D Cox, counsel assisting the coroner. I also appreciate the assistance provided by counsel for Tasmania Police, the Tasmania Police Association, Constable Blake and Mr Whiteley’s family.
  121. I also record and acknowledge the extensive work undertaken by the police officers who undertook the investigation of the circumstances of Mr Whiteley’s death, particularly Sergeant Greg Rogers. The potential difficulty involved in the investigation of police officers by other police officers is obvious. I am satisfied that the investigation in this case was thorough and impartial.
  122. Finally I convey my condolences to Mr Whiteley’s family.

DATED: 22 May 2013 at Launceston in Tasmania

Robert Pearce
CORONER


 


[1] Tasmania Police Policy Number 1/2009 “Single Member Response Model”

[2] The definition of “reportable death” in s3 of the Act.

[3] S 24(1)(b)

[4] S28

[5] R v Tennent; Ex parte Jager [2000] TASSC 64. Re The State Coroner; Ex parte The Minister for Health [2009] WASCA 165

[6] Keown v Khan & Anor [1998] Vic S C 83 (unreported), Perre v Chivell [2000] SASC 279

[7] Perre v Chivell [2000] SASC 279, at para 54 and following.

[8] Briginshaw v Briginshaw (1938) 60 CLR 336. See Plover v McIndoe (2000) 2 VR 385, Domaszewicz v The State Coroner (2004) 11 VR 237, Hurley v Clements [2009] QCA 167 at [25] and following.

[9]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66. Chief Commissioner of Police v Hallenstein [1996] 2 VR 1 at 19

[10] Re The State Coroner [2009] WASCA 165

[11]Ibid, at [42].

[12] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, Re The State Coroner [2009] WASCA 165 at [44] and [47]. As to causation see also Saraf & Anor v Johns (2008) 101 SASR 87 and Onuma v The Coroner’s Court of South Australia [2011] SASC 218 although the South Australian provision is in different and broader terms.

[13] S28(2)

[14] S28(3)

[15] As was pointed out in Harmsworth v The State Coroner [1989] VR 989, the powers to comment and made recommendations “are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner’s prime function, that is to make “findings””. Similarly Hedigan J in Hallenstein said, at p7:

“Doubtless it is correct to say that a coroner should not inquire into a death substantially to enable comments to be made. But once the inquest is held, the limits to the power to comment do not admit of easy definition”.

[16] Tasmania Police Manual Part 10.7 Use of Force

[17] Tasmania Police Manual Part 10.8 Non-Lethal Force, paragraph 10.8.2(2).

[18] Tasmania Police Manual Part 10.8 Non-Lethal Force, paragraph 10.8.4.1.

[19] Tasmania Police Manual Part 10.6 Oleoresin Capsicum Spray, paragraph 10.6.5(3).

[20] Tasmania Police Manual Part 10.6 Oleoresin Capsicum Spray, paragraph 10.6.5(9).

[21] Tasmania Police Manual Part 10.6 Oleoresin Capsicum Spray, paragraph 10.6.5(1).

[22] Tasmania Police Manual Part 10.10 Lethal Force, paragraph 10.10.3.

[23] Tasmania Police Manual Part 10.10 Lethal Force, paragraph 10.10.3(4).

[24] Tasmania Police Policy Number 1/2009 “Single Member Response Model”

[25] SMRM paragraph 1.7

[26] SMRM paragraph 1.1

[27] SMRM paragraph 1.2

[28] SMRM paragraph 1.4 and 1.5

[29] SMRM paragraph 1.3

[30] SMRM paragraph 1.5

[31] SMRM paragraph 1.8

[32] (1980) FLR 112 at 123

[33] [2001] NSWCA 35 at [37]

[34] Supra at [38].