Victorian coroner finds unjustified police pursuit resulted in death of Aboriginal man

A Victorian coroner has found that a high-speed police pursuit which resulted in the death of an Aboriginal man was not justified and called for the rules to change back to the more restrictive settings that were in place before the Bourke Street tragedy.

© Provided by The Guardian Photograph: Daniel Pockett/EPA

Coroner John Olle handed down his findings on Monday into the death of Gunnai, Gunditjamara and Wiradjuri man Raymond Noel Lindsay Thomas.

Raymond Noel was “made of pure love,” his parents told the court, in statements Olle included in his findings. “He had a beautiful nature and was a very caring person, and was very protective of his family and friends.”

Olle found the decision by police to pursue the 30-year-old on 25 June 2017, was not justified on the letter of the pursuit policy as written, which requires police to assess whether the vehicle poses a serious risk to public health and safety before deciding to intercept.

But he said lawyers acting for the chief commissioner of police had made submissions to the inquest which interpreted that policy in a way that is “at odds with the written word” so he could not hold the police officers directly involved in the pursuit responsible.

Victoria police changed its policy in 2015 to allow pursuits only when public safety was threatened or a serious offence was committed, in response to recommendations Olle made in a 2013 inquest. That version of the policy specifically prohibited pursuits in response to minor traffic offences and theft.

That prohibition was removed when the policy was updated in 2016, after a negative media campaign, and the policy was broadened again after the Bourke Street tragedy in January 2017.

Olle said that as a result of the “restrictive” 2015 policy, the number of pursuits reported a month dropped from 171 to seven and “pursuit related trauma was trending toward zero”.

“I consider that outcome a remarkable achievement which illustrated the absolute determination of the chief commissioner of police to reduce pursuit related trauma,” he said, noting that trauma from fatal pursuits affects not just the families of the deceased but police officers and the broader community.

When that clause was removed in the 2016 update of the policy, pursuit numbers increased “tenfold,” he said, but remain below pre-2015 levels.

Olle recommended the more restrictive requirement be reintroduced, saying police members would benefit from a more proscriptive policy which allowed “no scope for interpretation”.

“In my view, a pursuit policy should offer operational police the clearest opportunity to make sound decisions in these highly charged scenarios,” he said.

He recommended the policy be updated to say that a “serious risk to health or safety of a person must exist before the decision to intercept, that is before police involvement”.

Olle said there was an “alarming contradiction” in interpretations of the pursuit policy between senior police officers who gave evidence at the inquest.

The submission from the chief commissioner of police suggested the pursuit was justified because Raymond Noel crashed into a parked car shortly before police formally called the chase.

But Olle said that crash occurred after police had tried to intercept Raymond Noel and had begun following him at high speed, which meant it would be retrospectively justifying a decision which had already been made to follow and intercept the vehicle.

“Frankly I struggle to accept this submission,” Olle said. “In my view the policy as written allows no room for this interpretation.”

But, he added, “to criticise the members would ignore the evidence of senior members before me who held vastly different opinions, even in hindsight.”

“I cannot fathom how members new and old can comply with a policy, which on the one hand, removes the prohibition of pursuing a vehicle for minor traffic or property offences, yet stipulates a serious risk must exist before the decision to intercept,” Olle said.

Raymond Noel had gone out that night to buy some chocolate from the supermarket. When he drove out of the supermarket car park via a sidestreet on to Dundas Street, at 11pm, he was spotted by a sergeant John Sybenga, who was driving past in a patrol car.

Sybenga told the inquest he thought the combination of the New South Wales licence plates, the time of night, and the location, which he associated with criminal activity, made the commodore driven by Raymond Noel seem ‘“dodgy”. He asked his partner, senior constable Deborah McFarlane, to look up the car’s registration while he did a U-turn.

When McFarlane reported that the car was unregistered, Sybenga sped up.

An analysis of the onboard computer found he went from zero to over 100km/h in five seconds, reaching a top speed of 134km/h on Dundas Street, but he did not turn his lights and sirens on. Olle recommended police be required to turn their lights and sirens on when they begin that kind of driving.

The commodore driven by Raymond Noel then took a sharp turn into Victoria Street. Police followed and saw debris from a parked car, which had apparently been struck. They then turned on lights and sirens and began the official pursuit, which lasted 21 seconds with both cars reaching over 150km/h on the 50km/h residential street, until they saw the commodore crest a hill and veer in to the wrong lane

Olle said Raymond Noel veered into the wrong lane to avoid hitting a slow-moving taxi, and lost control when trying to avoid a head-on collision with oncoming cars. No one else was injured.

Raymond Noel’s driving only became dangerous after police tried to intercept him, Olle said.

“The common thread in all pursuit fatalities is that dangerous driving is the consequence of police involvement,” Olle said. “Therefore, were police not to get involved, the danger would not exist.

Olle found the pursuit was not racially motivated, but said the broader racial context and the fear Raymond Noel may have felt as an Aboriginal man when he saw police behind him should not be ignored. He recommended police pursuit training include information on the disproportionate representation of Indigenous Australians in fatal police pursuits.

“Whilst we’ll never know why Raymond Noel took flight, the potential contribution of his adverse experiences with police cannot be excluded,” Olle said.

Raymond Noel’s parents, Aunty Debbie and Uncle Ray, said they were “very thankful” for the way Olle had conducted the inquest.

“While we have learned more about what happened to Ray that night, we will continue our fight for accountability,” they said. “Ray did nothing wrong. The police should not have followed Ray that night and their decision to follow him led to his death.”

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