by Robin Bowles
(My husband thinks I’m a ‘bleeding heart’ as well. I quite like the term. Better than other things I’ve been called over the years!)
Simon prepared an estimate of the total cost, as required by the legal practice rules. It was daunting, but Natalie knew he was offering generous terms by a barrister’s standards, so she accepted.
Len also had representation at first, but his barrister withdrew on conflict of interest grounds. After that, Len decided that he could question medical witnesses himself, especially given the cost of legal representation.
Natalie’s next two tasks were to have the Coroner agree to an open inquest and to raise the money to pay Simon and his instructing solicitor. Phoebe’s friends rallied around to help with the fundraising. A benefit held in Mallacoota raised $16,000, about $15 per person in the little town. It was an amazing feat and a real demonstration of how much Natalie and her family were loved in their community.
Phoebe’s brother Tom set up a fundraising site under the banner, ‘What happened to Phoebe?’ and her friend Alice Jagger set up a Facebook page called ‘In Loving Memory of Phoebe’, where people could record their comments and memories. They posted dozens of photos of Phoebe and her family to show strangers Phoebe at her vibrant best. She really was extraordinarily beautiful from any angle at any age. Ant wanted to play a part, especially by providing some degree of editorial control, so he was included as an administrator with Tom and Alice.
Alice organised a benefit concert to be held in Collingwood at a large venue. That raised around $5000. Natalie’s fears about being unable to pay the legal bills slowly subsided as further donations flowed into the website. But legal bills are a bit like renovation costs, only worse. When you scrape off the outer layer, you’re always at risk of finding something underneath that will be much more expensive to fix.
To attend the hearing on 5 December 2012, Natalie and Jeannette made a nine-hour drive from Mallacoota. The trip meant two unpaid days off work for Natalie and cost around $200 in petrol. Lorne drove down from Milawa, about three hours from Melbourne, and Len cancelled his patient list for the day.
They all expected that submissions would be made that day and a date would be set for an inquest. But it didn’t turn out like that. At this hearing, Ant was represented by Elizabeth Brimer, a barrister who’d been Justice George Hampel’s associate between 1997 and 1999. After initially agreeing with the counsel representing Phoebe’s family and indicating that she’d support an open inquest, Ms Brimer submitted that a full inquest wasn’t necessary because there was no basis for the court to determine a murder may have occurred.
Rather than taking oral submissions and setting an inquest date, the Coroner directed that all parties send written submissions to his chambers by specified dates in 2013. Phoebe’s family was upset that the court seemed to have ignored all the work and cost involved in preparing written submissions. Lorne Campbell got off on the wrong foot with Coroner White because he wrote to the Coroner’s registrar expressing his disappointment at the way the first appearance at court had been handled. Lorne argued that the day’s proceedings could have been dealt with by mail, sparing them all inconvenience and conserving Natalie’s precious funds. He was also concerned that His Honour had emphatically expressed a preference for dealing with the inquest on the papers and had said that he’d need to be very strongly persuaded otherwise before hearing oral statements in an open court.
Lorne described this as ‘obstructive rather than conducive to a search for the truth’. The rest of the letter made his disappointment palpable. He asserted that the Coroner couldn’t have read the police brief because he didn’t appear to have considered ‘the nature of additional enquiries requested’. Lorne complained that Natalie had only received ‘about half the brief, copied onto reject A4 paper’. He said that Natalie had engaged an independent pathologist to review the report from Dr Lynch, but she had been ‘supplied with photocopies of photos rather than the actual photos, which was completely inadequate’. He called for Coroner White to step aside because Phoebe’s family ‘no longer had confidence in him’.
Lorne poured all his frustration into his final paragraph:
‘It was bad enough that the initial investigation of this highly suspicious death was mishandled by members of the Homicide Squad. They still (unaccountably) cling to their premature ‘suicide’ assessment, which will ultimately be shown in open court to have been ill-considered.’
He finished by suggesting that Coroner White was ‘inappropriately trying to minimise the case’ and that this wasn’t in the best interests of justice being seen to be done.
In answer to Lorne’s letter, the Chief Coroner went in to bat for Coroner White. He referred to a couple of serious allegations Lorne had made (not mentioned above) and refuted them in no uncertain terms. The gist of the letter was that His Honour Peter White was in charge, and that was that.
While awaiting the Coroner’s decision, Lorne wasn’t idle. He distributed letters in the vicinity of Balencea, asking residents if they’d seen or heard anything suspicious on the date of Phoebe’s death. He also spoke to the Age newspaper’s award-winning investigative reporters, Richard Baker and Nick McKenzie. The duo had been interested in the strange circumstances of Phoebe’s death, but unwilling to publicise it, thinking it was a suicide, which the media are reluctant to report. Now there was some doubt about that, especially considering Phoebe’s links to prominent members of Melbourne society, they published a big story about Phoebe’s strange death on 6 December 2012, the day after the Coroner had held his initial short-lived hearing. Channel 7 also entered the fray, broadcasting the videos of Lorne’s experiments with the girls and the rubbish chute at Balencea and Wastech and asking more questions about Phoebe’s death.
*
On 26 March 2013, the Coroner’s senior in-house solicitor wrote to say that the Coroner had reached a decision. In spite of the family’s fears, it was the decision they had been hoping for. The Coroner would hold an open inquest into Phoebe’s death.
The letter stated that the Coroner had decided to conduct his enquiry using his discretionary rather than mandatory powers. In lay language, this meant he didn’t feel strongly that a homicide had been committed, but thought the cause of death was strange enough to warrant an open investigation.
The solicitor also noted that the inquest was not a criminal trial. The Coroner cannot make any statement that a person is, or may be, guilty of an offence. All he can do is to notify the Director of Public Prosecutions that a person known to the court might be worth another look.
A directions hearing was scheduled for 1 May 2013, and the inquest would follow in August.
CHAPTER 9
THE INQUEST BEGINS
In August 2013, when the inquest into Phoebe’s death finally got underway, the Coroners Court had moved to temporary quarters while its Southbank building was being renovated. Unfortunately, I didn’t know that and arrived bright and early in a taxi to find myself at a building site. I ran through blustery wind and rain to ask the proper location and was told it was at the former Transport Accident Commission building in Exhibition Street.
I was very familiar with that building. In a previous life as a communications consultant, I’d had my own desk and phone extension there so that my company could help the TAC make a smooth transition to the ‘corporatised’ model required by the Kennett government, which had cut out all the middle managers, allowing management consultants (including me) to flow in and fill the gaps.
The temporary court was on ‘my’ old floor, but what a transformation! My first view was of a modern lobby, help desk, and random seating, with two or three doors to courts leading off the foyer.
When I reached the courtroom, it was packed. My late arrival meant that most people had already taken their seats and were waiting for Coroner Peter White to arrive.
I made my way towards a group clustered arou
nd the person I knew to be Natalie Handsjuk. She looked small and quite frail, her long curly hair wisping around her face; she was dressed in a boho style in a lightweight print cotton dress and knee-high boots, and protectively clutched a cardigan around herself. Friends and relatives formed a loving barrier around her.
I hadn’t met her at this stage, and I thought she might find it unnerving if she saw a stranger taking shorthand notes in a big black book, so I introduced myself. Distracted, she just nodded and looked away to someone else who claimed her attention. Her sons, both serious and handsome, were sitting in the second row behind her. Their father sat beside them, straight-backed and solemn. A woman about my age sat in the front row next to Natalie. Her mother, I guessed. I couldn’t immediately decide who was Lorne Campbell, but I was certain he was there.
The bar table was full. From left to right, as I sat, were the counsel assisting the Coroner, Deborah Siemensma, who was a quiet-looking youngish barrister (does everyone look young to me these days?); Simon Moglia, a neat, small-featured man with blond hair; Bob Galbally, representing Ant Hampel, a tall, commanding figure dressed in the de rigueur pinstripe several-noughts suit and possessor of a booming voice; and Rob O’Neill, a short, chubby, and slightly dishevelled barrister appearing for the Chief Commissioner of Police. O’Neill looked a bit out of place, as if he’d left home in a hurry that morning carrying his toast.
Ant wasn’t taking this inquest lightly. Bob Galbally was a big gun, a leading lawyer from a firm that describes itself on its website as ‘practising exclusively in criminal defence law since 1974’. Why choose a criminal defence lawyer? Was Bob a friend of the family? He was, it turned out. He later told me he’d known George Hampel since the mid-1970s.
Bob Galbally and I had met a couple of times before, when he was representing two different police officers, both of whom were suspected of nefarious activities. Neither was eventually charged. He cut his legal teeth in a renowned Melbourne firm, Galbally and O’Bryan. Generations of Galballys and O’Bryans had trodden the floor behind bar tables and sat in judgment at benches. After ten years at Galbally and O’Bryan, Bob and fellow barrister Brian Rolfe established Galbally Rolfe, and Bob has been at the forefront of serious criminal trials ever since. At least Natalie didn’t have to worry about funding Bob to sit in court at several thousand dollars a day; the parties at an inquest bear their own costs.
Opposite the barristers sat their instructing solicitors, and O’Neill had extra helpers sitting at the media table in case he needed to send out for anything. Several female police with laptops and silenced phones also sat behind him, in the front row of the public seating.
I took a seat at the media table and opened my notebook. Everyone was ready when the Coroner strode in. We all stood up, he nodded to us, we nodded back, he sat, we sat, and the proceedings began.
I hadn’t seen this Coroner before. Coroner White is a large man with a commanding presence. He was very much in charge of his courtroom. He could have been a nineteenth-century English squire taken from a portrait, wearing a waistcoat with a hound or two afoot. He looked as if he’d stand no nonsense.
At the beginning of a complex court hearing, there’s always a bit of housekeeping as barristers make submissions to His Honour about items of evidence to be excluded. Bob Galbally stood up, unwinding himself to his full height.
In his sonorous voice, he asked the Coroner to suppress parts of the brief as irrelevant and slanderous. He was clearly anxious that claims made by some witnesses wouldn’t be taken down and published, either by me or by the couple of journalists who’d arrived to sit next to me. He had a list of the offending sections and had already given a copy to Ms Siemensma. His Honour ruled that each section could be dealt with in sequence, and asked Galbally to distribute his list to all parties.
The Coroner put an immediate suppression order on a statement from one of the women who took turns looking after Ant in the days following Phoebe’s death. From the witness list, it looked as though she wasn’t going to be called either. Round One to Galbally.
Ms Siemensma went back over the events leading to the inquest and summarised its primary purpose: to establish the identity of the deceased, the cause of death, and the circumstances in which death occurred. However, she added, ‘Section 67(3) of the Coroners Act also confers a discretion on Your Honour: a discretion to comment on any matter connected with the death, including matters relating to public health and safety, or the administration of justice. Issues have been raised in this case about the competence of the police investigation, and that is a matter within Your Honour’s jurisdiction, I submit, by virtue of s.67(3) of the Act.’
She advised that there were three possible findings: accidental death, murder, or suicide. In regard to accidental death, she said that with the high level of drugs (particularly Stilnox) and alcohol in her system, Phoebe may have contributed to her own death while not intending to do so, in an aberrant state of mind. She informed the court that in 2008, the Therapeutic Goods Administration (TGA) had imposed a warning on packets of Stilnox to say that it could be associated with bizarre behaviour, such as driving while asleep.
The Coroner asked whether Phoebe’s general state of mind could have been a factor in accidental death, and Ms Siemensma agreed it could.
Moving on to suicide, the second possible finding, she spoke of Phoebe’s conversations about suicide with Jeannette, Linda, and others; she also spoke of her cutting, her depression and use of prescription antidepressants, and her cries for help to her psychologist.
To balance this, Ms Siemensma continued, Phoebe left no note, though she was an avid writer. She showed no signs of overdosing on drugs and had a loving family. Most puzzling of all, why would she have chosen the rubbish chute? She had important family birthdays to celebrate in the next few days and ‘some circumspection’ should be used if considering suicide.
Then there was the question of the possible involvement of a third party. Ms Siemensma said this couldn’t be discounted. She drew attention to the signs of bruising and said that Dr Lynch had described the bruises on Phoebe’s upper right arm ‘as recent injuries and as consistent with grip marks, although he says certainly not specific to that’. Also of note were the broken glass and blood in the apartment, the difficulty of entering the chute, as shown by Lorne’s experiments, and the impact of the Stilnox. The Coroner would need to assess the quality of the evidence and make a decision on the balance of probabilities.
She referred the Coroner to the famous case of Briginshaw v. Briginshaw, which was a 1938 case in which a husband had petitioned the court for a divorce on the grounds of his wife’s alleged adultery. The judge in the case refused his petition, saying he wasn’t satisfied that the petitioner had proved adultery. He said, ‘I do not know what to believe … I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that if this were a civil case I might well consider that the probabilities were in favour of the petitioner, but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted.’ So the judge was caught between two standards of proof — the civil standard, which is proof on the balance of probabilities, and the criminal standard, which is proof beyond reasonable doubt.
That judge’s comments formed the basis of an appeal, and Mr Briginshaw succeeded because the Appeal Court decided that the judge was wrong in seeking to be persuaded to the level of criminal proof. Although divorce has since become ‘no fault’, the standard set in Briginshaw survives as the yardstick by which coroners operate. Basically, Briginshaw gives the Coroner some latitude in working out what standard of proof should apply, depending on the cause of action or defence, the subject matter of the proceeding, and the gravity of the matters alleged. The more serious the allegation, the stronger the evidence needs to be.
Coroners can listen to impressions, gossip, hypotheses, and forms of evidence
that wouldn’t be permitted in other courts. They also have powers of entry and seizure — almost anything that helps them get to the bottom of a suspicious or unusual death and prevent a similar one.
Ms Siemensma then reviewed Phoebe’s movements and actions since the Monday before her death, culminating with the discovery of her body in the compactor room. She told His Honour the first witness would be Beth Ozulup, the concierge who made that awful discovery.
*
Looking small and anxious, Beth climbed into the witness box. She was about 40, drably dressed, and obviously nervous. Most people never visit a court in their lives, and giving evidence is very intimidating. I know because I’ve done it, and I’m used to courts.
Beth said she was now working as a cleaner somewhere else. Eric Giammario later told me that she’d left Balencea a few months after her return to work.
She told the court about the life-changing experience of finding Phoebe. At the time she’d been at Balencea for about eight months, so she could usually distinguish between residents and visitors. She confirmed that no one sat at the front desk, which was just ‘used to put plants on’. The concierges used the manager’s office, where they could view CCTV, if they weren’t occupied elsewhere in the building. On the day of Phoebe’s death, a temporary cleaner was filling in while the regular cleaner was on holidays, but he finished about 12.30 p.m.
The staff members were issued with personalised swipe cards, which they kept with them so that they could get into the car park under the building. The cleaners also had cards that gave them access to all the floors. The spares were kept in the manager’s office, but sometimes there was a bit of lending between the staff if one of them forgot to bring their personal card to work.
This probably accounted for some odd things that turned up during Beth’s evidence. Her personal swipe card appeared to have been used at 12.05 a.m. on 2 December and again very late that night, at 11.50 p.m. She couldn’t explain why that had happened, as she couldn’t remember anyone borrowing her card that day.
