by Robin Bowles
The report closed by attributing Phoebe’s death to exsanguination and ‘injuries sustained while attempting to climb from a height, in a setting of alcohol and zolpidem consumption’.
After four years, the cause of her death had been decided.
*
Phoebe’s family was devastated. They felt that Phoebe had been denied justice, as now the case could never be further investigated. Whose justice was this?
Outside the court, they expressed their disappointment with the finding and said they didn’t agree with it.
‘It’s been a very long, hard four years and we just need time to look at this,’ Natalie told the waiting media. ‘I’m not surprised ... I’m not surprised. That’s all I can say at this stage. I feel a bit numb at the moment.’
Asked whether she was going to accept it was an accident, she said that she’d rather not comment.
Lorne said, ‘We are all dumbstruck. We didn’t really know what to expect, but nothing has prepared us for this finding. The Coroner’s own counsel strongly advised him that the only option was an open finding. To ignore that advice is unbelievable.’
Despite Homicide’s rapid — and now officially vindicated — decision that there was nothing to investigate, Lorne still believed something wasn’t right.
Antony Hampel released a statement welcoming the finding. ‘It was hard enough to lose Phoebe Handsjuk, who was a vibrant and loving young woman in her mid-20s when she died four years ago. But it was even harder dealing with the false claims and totally unjustified allegations which followed. These wild allegations have now been put to rest by the robust Coroner’s investigation and report handed down today. None of this will bring back Phoebe. My hope is now that we can allow Phoebe to rest in peace.’
Ant told me later that he was very satisfied with the depth and breadth of the coronial enquiry. He said ‘every day had been a battle for Phoebe, which she tried to keep from her family. She was a troubled soul, and her death was such a waste’.
*
At first Natalie was determined to challenge the Coroner’s finding. In Victoria, the only way you can do that is to lodge a challenge in the Supreme Court, which is expensive. The Handsjuks’ financial resources were totally depleted. Quite a few members of Melbourne’s legal establishment seemed to be interested in examining the finding, but they didn’t want to challenge it. Natalie did find a barrister who would represent them pro bono, but that barrister was suddenly elevated to the bench, so Natalie went looking again. She found another senior barrister, who gave her good but unwelcome advice.
‘The Coroner’s finding can only be challenged on a point of law. His finding does not appear to exhibit any breaches of law. You can have a go,’ he said. He’d found one small point that gave ‘a shred of a possibility’, but the consequences of losing would be disastrous. ‘The Coroner, the police, and Mr Hampel are all likely to be represented. Can you afford all their fees if you lose?’
It was a no-brainer. They’d have lost their homes if they lost the challenge.
The intrepid Baker and McKenzie of the Age somehow got hold of Ms Siemensma’s advice to the Coroner, along with several police photos. The Sunday Age used them in a feature criticising Coroner White for failing to take the advice of his counsel assisting and bring down an open finding.
They said Ms Siemensma’s advice had been that the balance of probabilities indicated the possibility a third party had been involved and that the evidence only permitted an open finding to be made.
The journalists said: ‘While a Coroner is not obliged to follow the advice of counsel assisting, it is unusual for a Coroner to reject as many submissions as Mr White has in Ms Handsjuk’s case.’
The journalists compared Mr White’s finding with Ms Siemensma’s submission, and found that the two had interpreted much of the evidence in very different ways. In her submission, Ms Siemensma had emphasised the unexplained bruises to Phoebe’s upper arms, the blood in the apartment, the lack of fingerprints around the entry hatch, and the inadequacy of the initial investigation by police. As a result of these factors, she argued, the Coroner couldn’t make a ‘positive finding on the balance of probabilities as to the involvement of Mr Hampel’ or any other third party. ‘That is not to say he had any involvement,’ Ms Siemensma continued, ‘but rather there is an inability to “exculpate” on the balance of probabilities.’
She added that there were ‘aspects of Mr Hampel’s evidence that were unsatisfactory’. Her report also pointed to the lack of dirt on Phoebe’s clothing or hands. As a result, she said, ‘no inference could be drawn as to whether she had used force to try to break her fall or slow her movement’.
*
Natalie wrote her final blog on 18 December 2014. She explained the family’s situation and thanked all those who’d supported them.
She wrote: ‘Once again I wish to thank all who have followed Phoebe’s story and supported our family over the past four harrowing years. At this stage it is sufficient to say that we do not agree with the principal aspect of the finding, but we are considering every aspect of the 89-page finding before venturing any public comment. There is now an avenue of appeal to the Supreme Court but due to the prohibitive cost and the uncertainty of our judicial system, we are not considering that step.
‘The emotional support from family, friends and the many people whom we have never met, has encouraged us to keep fighting for the truth as to how our beautiful daughter came to lose her life.’
She thanked the legal team who had argued the family’s case, and the innumerable people who had expressed their support by donating to the cause.
She said the family had decided to donate $7200, which was all that was left of the public money raised, to the White Ribbon Foundation to help stop violence against women.
She closed by saying, ‘Thank you everyone.’
*
Some feelings are never completely put to rest. Lorne lives with the memory that he somehow failed Phoebe; in spite of all his expertise, he couldn’t positively identify anyone responsible for her death. He believes he suffers from post-traumatic stress.
Len thinks of his daughter often with great sadness. Would it have made a difference if he’d prevented her from returning to Ant’s apartment the week before she died? But how do you give orders to a 24-year-old? He’s angry about the way Phoebe was treated by the professionals whose job it was to look after her — her psychologist and the ambulance officer in particular. He thinks either could have made the difference between life and death.
He says Deborah Siemensma was unique in his experience of legal practitioners and deserves an order of merit for the way she prepared and conducted the case. ‘Despite her efforts,’ he told me, ‘the investigation stands as a monument to the subtle corruption that exists in our society.’
He feels angry and disappointed about what has been taken from him. ‘You nurture your children as they grow, and if they are taken from you, your future together is obliterated. Grandchildren, just — everything.’ He has four other children and he draws joy from them, but he still feels the absence of Phoebe.
Natalie is sad too, for all those reasons and more. Her pretty face is lined with sorrow, quieter and more careworn. Her Tiger Cub is now prowling in a different, faraway jungle. She followed every possible lead to try to assist Brendan Payne and the rest of the investigation. She feels cheated, believing that much of what was uncovered wasn’t adequately dealt with in the final analysis. She is angry that there is nowhere to go except an unaffordable action in the Supreme Court.
Phoebe’s brothers grieve in their own ways. For months after her death, Nik couldn’t speak of Phoebe. Now they continue life without her, but she is never forgotten. Her presence is everywhere in their homes, on the walls, in photos, in paintings and poetry, on the internet, and now in a book.
When I finally spoke to Ant Hampel, h
e wasn’t too keen on reliving or reviving all the pain of that time, so although he’d accepted my call he wasn’t enthusiastic about providing me with a long interview. He did say though that he hoped that this story might help to shine a light on the terrible problem of depression. He said he’s now working behind the scenes to assist organisations that help people deal with depression.
He felt the main reason there had been so much interest in Phoebe’s story was that he was a member of a high-profile family. Otherwise, he said, the whole thing might just have been another of the many suicides from depression that never get noticed. He’d been ‘completely shocked, but not surprised’ when he’d heard Phoebe had taken her life. He reminded me that people show grief in different ways.
I had to agree with that, and I told him I’d said as much in this book. Ant is now happily married, and he says his wife has been ‘a tremendous support’ in his recovery from the whole business. His event promotion company is ‘Alive’ and well. A couple of years ago, he and his wife left Balencea, with all its awful memories, and moved away from Phoebe’s shadow.
EPILOGUE
LAST RITES
During my research for this book, I was told a beautiful story, and rather than ending on a sad, unresolved note, I want to share it with you.
Phoebe’s father Len was heartbroken in the months after her death. Men in Australian culture are expected not to cry, but he cried often. Len tells me that crying is a way to recognise grief and come to terms with it. If you don’t cry, the grief is bottled up and manifests itself in other ways, including revenge, hatred, and negativity.
‘Because I cried, I am not a wimp,’ he told me. ‘Weeping is a way of dealing appropriately with grief.’ To compound his sorrow, in his professional practice he had to listen to the pain and problems of others day after day, trying to dispense calm and soothing advice while his own heart was aching.
It is in the nature of men to fix things, or do something practical, and he thought up a practical project into which he could channel his grief. Of Scandinavian heritage himself, he had fond memories of visiting the Viking museum near Oslo in Finland with Tom and Nikolai a few years earlier. They’d seen relics of Viking longboats, including ceremonial vessels depicting those used in cremation ceremonies.
‘Many cultures use fire to end a story of a life,’ he told me. ‘It’s common in India and other cultures.’ So when the family was thinking of a final farewell ceremony for Phoebe, he decided to make a small replica of a Viking longboat to provide a fitting send-off for his daughter. He trawled the internet for information about how to make a replica, but didn’t find much. Then a close friend recommended the Timber Benders near Daylesford, who use steam to bend timber into fluid shapes.
Sue and Bob from the Timber Benders told me they hold Len in very high esteem. They offered him their expertise, their friendship, and the use of their workshop, where he laboured over every small detail, using his hands and heart to create something beautiful for his daughter. It was an emotional experience for all of them. There were days when Len would be halfway into the two-hour drive from Melbourne when he’d suddenly feel he could go no further. He’d ring Sue from a coffee shop to say he couldn’t come, and she’d encourage him to put one foot in front of the other and complete the journey.
‘It was a bit strange, in a way,’ she told me, ‘him being the therapist, but me doing the therapy.’
Using wood-bending tools made in Sweden in 1850 that had been brought to Launceston in 1887 for a furniture-making company, Bob and Len worked together side by side, shaping, sanding, carving, and crafting a perfect boat, fit for a princess. It was 2.3 metres long, a 1:10 scale model that Len had developed using pictures and information gleaned from various sources. It was a one-off — unique.
Every weekend for more than a year saw Len at Bob and Sue’s farm, striving for perfection in the tiniest details. Lorne lovingly carved four little figures of seated cats, Phoebe’s favourite animals. They were stained dark to match the boat and fitted to the prow and stern, forward facing, focusing on the journey ahead.
Eventually, it was ready. Phoebe’s closest friends, including Alice Jagger and Linda Cohen, made the pilgrimage to Mallacoota to stay with Natalie or her friends. Russell Marriott had prepared a feast fit for a Viking farewell, and Natalie had made desserts. Jeannette had decorated a cardboard box with a phoenix to hold Phoebe’s ashes. Everyone in the family had a role to play, as did the friends attending, who’d all written letters to go in the boat with Phoebe’s ashes.
About two dozen mourners gathered just before dusk on the beach, where Len carefully unloaded the boat from the trailer. Phoebe’s ashes were placed amidships, surrounded by letters from everyone. The boat was draped with ropes made from 40 bunches of marigolds, which had been donated by Albert, the owner of the independent Clifton Hill grocery, who was known as ‘Awesome’ because that seemed to be his favourite word.
The flowers had been made into long garlands the previous night by a working bee of women who’d driven to Mallacoota from Clifton Hill. Many of them had had known Phoebe well. It was a labour of love and a community contribution to Phoebe’s send-off. Marigolds are significant in many cultures as an offering at a time of death or renewal. The flower is known in Mexico as flor de muerto, flower of death, and the bright petals are believed to guide the spirit to its final resting place.
Tom and Nikolai carried the small vessel down the beach into the calm water of the estuary. They stood on each side of their mother while she set the longboat alight. The two brothers gently guided the precious vessel as they walked out into deeper water, while the little group of mourners watched in awe: the calmness of the pewter water, the red gashes of the setting sun, the wonder of Len’s boat, and the solemnity of the ritual taking their breath away.
Slowly, a current picked up the boat and carried it out to deeper water. Tom and Nikolai stood knee-deep, their arms around each other, tears blurring their vision of this perfect send-off.
As Len watched the small boat he’d put heart and soul into so lovingly being consumed by fire, it mirrored his thoughts of his nurturing and loss of Phoebe. Both beautiful, both unique, both loved and cared for, and both now gone forever.
The flames devoured the little boat gradually, dancing off the silvery surface of the water and mixing with the strands of red sunset. Soon, strings of marigolds swirling on the gentle current and a wisp of grey smoke were the only evidence it had ever been there.
In Norse mythology, Valhalla is the word for ‘hall of heroes’ — the place people went when they fought and died in a hopeless battle for an ideal. As the little boat flamed and slowly sank, the cleansing fire released Phoebe Handsjuk’s spirit and sent it flying to its own Valhalla.
APPENDIX
SYDNEY CRIMINAL DEFENCE LAWYERS’ COMMENT ON KRISTINA HAMPEL’S SENTENCE
2 December 2014
Retired Victorian Supreme Court Judge George Hampel’s daughter Kristina Hampel has received no conviction after a sentencing hearing in the Victorian Magistrates’ Court.
The Court heard that Hampel had profited $3800 from selling 10 g of cocaine from her apartment in Melbourne’s exclusive South Yarra.
She was also found to be in possession of a tear gas canister, and was sentenced for possession of a prohibited weapon. Her penalty was a community corrections order and 200 hours’ community service.
How would it have gone down in NSW?
Most people have heard of a section 10 — it is a legislative provision of the NSW Crimes (Sentencing Procedure) Act 1999 empowering judges to either dismiss charges unconditionally or impose a good behaviour bond and record no conviction after a plea of guilty is entered. No other penalties, such as fines or community service orders, may be recorded. It appears that the legislative purpose of this regime is to force judges’ hands, so that only minor offending can warrant an order that no conviction be record
ed. Indeed, a relevant consideration is the triviality of the offence (s10 (3)).
Hampel was apparently charged with possession of 10g of cocaine. Schedule 1 of the NSW Drug Misuse and Trafficking Act 1985 (‘DMT Act’) puts this above both the ‘trafficable quantity’ (1g) and the ‘indictable quantity’ (3g). A quantity of cocaine being more than the indictable quantity is a ‘strictly indictable’ offence and does not fall under Schedule 1 of the Criminal Procedure Act 1986 ‘Table 1’ or ‘Table 2’ offences. What this all means is that if she were charged in NSW, Hampel would have to go to the District Court and wouldn’t have the option of having her matter heard in the Local Court. In Victoria, the Magistrates Court is equivalent to the Local Court, and the County Court is equivalent to the District Court.
Getting sentenced for supply in the District Court means Hampel would face a maximum penalty of 15 years’ jail, rather than the jurisdictional limit the Local Court has of 2 years. Hampel would also be ‘deemed’ to be supplying because the quantity of drugs was over the trafficable quantity (DMT Act s29). This means that the law would assume that Hampel had the drugs for the purpose of trafficking them, and she’d only be able to overcome this by proving on the balance of probabilities that she had the drugs for personal use or otherwise than for supply (s29 (1)). On the admitted facts, it seems that Hampel conceded that she was deriving a commercial gain from dealing the drugs. As such, a defence of ‘personal use’ wouldn’t get up.
SENTENCE
Hampel would need to convince the judge that her offence was trivial, among other things, in order to get a section 10. This seems highly unlikely given the commercial scale of her offending. This would leave her with a section 9 (conviction + good behaviour bond) at best, and a term of imprisonment at worst. It is likely that she’d be put on a community service order and of course, a conviction recorded.
CONCLUSION
It could be argued that Hampel got off lightly — the courts have consistently recognised that a conviction is not merely some kind of a Foucauldian post-structuralist construct of oppression with no substance, but rather a tangible penalty of a considerably denunciatory nature. If she were in NSW, she would have been convicted, but in Victoria, she was not. If we had enough time on our hands, SCD Lawyers would think about assisting one of our clients convicted of a drug offence to take the Crimes (Sentencing Procedure) Act (NSW) s10 or the Sentencing Act 1991 (Vic) s8 to the High Court seeking a ruling of invalidity on the grounds of discrimination based on state residence (s117).
