The main points of Coroner Peter White’s findings delivered on 9th December, 2014 following the inquest into Phoebe’s death are entirely speculative and cannot be justified by the evidence to the requisite standard of proof; namely, ‘on the balance of probabilities’.
A finding was made that no other party was involved. This finding positively eliminated not only Antony Hampel, but any person, from any possible complicity in Phoebe’s death. The evidence does not permit that finding.
The Coroner found that Phoebe climbed into the garbage chute by herself. The evidence did not allow Coroner White to reach that conclusion either. The finding was one of extreme speculation.
Coroner White ‘found’ that Phoebe (despite her state of alcohol and Stilnox intoxication and the debilitating physical effects such a combination of Central Nervous System depressants must have produced) not only climbed unassisted into the chute, but “climbed down” or at least retarded her fall by exerting lateral pressure on the 530mm diameter vertical shaft. Apart from the extreme physical difficulty of this suggested mode of descent down a vertical steel shaft, photographs showed that there was relatively little dirt on Phoebe’s body or clothes and evidence was given that the inside of the shaft was very dirty. I personally noted it to be so. The degree of contact postulated by the Coroner would have caused her hands, clothing and skin to be very dirty, especially her back. Her singlet would have unavoidably ‘ridden up’.
On reading the pathologist’s report, one of a number of things which drew my attention was his measurement of Phoebe’s height as – “approximately 166 cm”. Her actual height was 175cm. Either the post mortem measurement was incorrect or her body had been compressed and shortened by the force of her fall. For the pathologist, the task of making an accurate height measurement could have been difficult given the fractures to both legs and the near severance of the right foot – which remained attached by only a tendon. The Coroner discounts family evidence of Phoebe’s height and has accepted the pathologist’s measurement of 166cm as her actual height. This would support his theory that she did not ‘free fall’ because if 166cm was her true height it would mean there had been no compression of her body. The Coroner principally bases his assumption that she did not free fall on the absence of major trauma to her internal organs. Phoebe fell into a 45 degree-angled deflector shaft and slid from that into a horizontal compaction chamber. The 45 degrees would have significantly reduced the force of the fall. Being half a right angle, 45 degrees might halve the force of the impact as against falling onto a horizontal surface; so if that were the case the force of the thirty metre fall would equate to perhaps that of a fifteen metre fall onto a horizontal surface. Putting aside the near severance of Phoebe’s right foot by the compactor blade, she also sustained other significant damage consistent with such a fall, including a fractured upper left femur and extensive bruising to her buttocks.
The Coroner put his theory to Dr Lynch thus, “…I am wondering if it is appropriate to infer that this was something of a controlled fall, where she was able to reduce the momentum of her fall by using her hands, arms and feet to apply force against the walls of the chute, to control the fall”? Dr Lynch replied, “I would have no view on that…So in Ms Handsjuk’s case the (injuries sustained to her lower limbs) reflect the way her body has impacted ultimately as she exited the chute…”
The Coroner – “And you are not surprised by the absence of injuries to her internal organs like the liver for instance”?
Dr Lynch – “Well if it was ruptured, I would say there has been some form of blunt force. There still has been force on her torso. It just hasn’t manifested itself as internal structural damage. I don’t think it allows me to conclude that there was a fall from a lower height, or that part of the fall was controlled followed by an uncontrolled component. That’s possible, it might be possible but the pathology doesn’t allow me to prefer one or other of those scenarios”.
The Coroner does not even have support from Dr Lynch to add any weight to his proposition that Phoebe climbed down the chute or applied lateral pressure to slow her fall. The only way into the chute feet first requires that the person is facing the wall (thus allowing the legs to bend into the shaft) and with the arms trailing behind and above the head. On slipping into the shaft in that position, the person would immediately start to fall, with no opportunity to brace against the sides because of the trailing arms. To suggest that Phoebe was able to get her arms into position and then slow her fall by pressing them against the sides is absurd.
Coroner White’s finding concerning Phoebe’s manner of descent is no more than an extremely improbable theory, yet he has advanced it as a solid ‘finding’. The evidence to justify it is not there. His finding that Phoebe entered the garbage chute by herself could only be justified by definite proof that no other party was or could have been involved. It is true that the presence of another party has not been proven, but Coroner White has disregarded the fact that there was also no evidence positively precluding the involvement of another party. There are too many uncertainties in the evidence (due largely to deficiencies in the police handling of the case) to allow any positive finding as to whether or not another party was involved. On the evidence for example, it is possible that Phoebe’s ‘boyfriend’, Antony Hampel may have been involved in her death, yet Coroner White has categorically ruled that out, without the necessary level of evidence.
Mr. Hampel arrived home at 6.09pm (shown by his entry swipe in the lift) and Phoebe was discovered by the concierge between 7.04 and 7.11pm. This means he was home for nearly an hour before she was found. There was no evidence of time of death. There were indications that Mr Hampel had used his computer at different times over that period and his Counsel claimed that the computer usage served as alibi evidence sufficient to preclude the possibility that he could have put Phoebe into the chute. However, the analyst was unable to say for how long Mr Hampel actually used the computer after each logged commencement time. His initial log-on was at 6.19pm – nearly ten minutes after he entered the apartment.
One of the videotaped experiments I conducted showed that it was quite easy for a reasonably strong male to carry a young woman of Phoebe’s size and weight in an unconscious state over his shoulder and put her feet-first into the chute. The lack of a known motive for Mr. Hampel to do such a thing does not preclude the possibility that he may have done it. He could have knocked Phoebe unconscious in a spontaneous fit of anger and put her into the chute, all in just a few minutes. While there is no conclusive proof that something like this occurred, there is evidence consistent with a physical altercation having taken place and no proof to the contrary. There were also instances in which Mr Hampel changed and adjusted his evidence after his first utterances were shown to be flawed.
Phoebe had unexplained injuries to her head which seemed to be unlikely results of a feet-first fall. The unexplained injuries to which I refer could have been sustained in the fall, but were also consistent with her being struck on the right side of the jaw with sufficient force to knock the left side of her head against a solid object such as a wall if she had been close to, or leaning against one (a likely possibility considering her level of intoxication). She had a 1cm abrasion accompanied by bruising on the right side of her jaw bone and what was described by the pathologist as “a subdural haemorrhage present over the left parietal cortex” (upper left side of the brain). This (latter) injury is capable of causing unconsciousness and the pathologist made no comment as to its possible cause, other than to make the suggestion that it could have been an… “? artefact of removal of brain” (during the autopsy). His report placed a question mark in front of the comment, but the Coroner cited it as an affirmative statement that the injury was caused during the autopsy. This misrepresents the evidence. There was also an adjacent 1 cm abrasion on the outside of Phoebe’s head above her left ear consistent with striking something.
These injuries remain conclusively unexplained and they are consistent with a physical attack. The same can be said concerning unexplained “circular and ovoid bruises on her right medial upper arm” consistent with grip marks; also bruising to her left wrist and her neck. Of course there could be other explanations for all these injuries, but speculation either way is not evidence. The fact is that nothing in the evidence precluded the possibility of a physical attack. Dr Lynch, the pathologist stated in his autopsy report: “I am not in a position to exclude the possibility of involvement of other parties”.
The possibility of another party being involved also arose from the observations of a witness. A person apparently working as a tradesman on the twentieth floor of the apartment block that day was observed by a tenant mid-afternoon, getting into the lift in which she was travelling, from the underground parking area. The tenant said the ‘tradesman’ did not use a “swipe” but pushed a button and the twelfth floor light was illuminated. Since a swipe was not used, this would indicate that the person had been “buzzed up” by someone on the twelfth floor. The tenant said she exited the lift at the sixth floor, so she did not see the man get out. Under the pressure of cross-examination she became less certain that it was the light for the twelfth floor which came on. Following media publicity, the ‘tradesman’ was identified and interviewed by the police. He denied visiting the twelfth floor and his denial was accepted, since there was no contradictory electronic recording of any ‘buzz-up’ to the twelfth floor. However the recording system was shown to be defective and the absence of a recorded buzz-up can’t be relied upon to prove that no buzz-up occurred. The tradesman was not called as a witness at the inquest.
Detective Senior Constable Howells, one of the attending police, noted a trail of dirt marks apparently left by the footwear of either a tall person or someone running, along the twelfth floor hallway, but these were not photographed, sampled, measured or further examined.
The computerised system recording the ‘buzz-ups’ was shown to be fallible when no recording was found to indicate members of the Hampel family going to the twelfth floor later on the evening of Phoebe’s death. The Coroner admits that this anomaly remains unexplained, but ‘found’ it to be of no consequence! On the contrary, it is a matter of consequence because it shows plainly that the recording system was not reliable and certainly not reliable in relation to the twelfth floor.
There was also a period of around twenty minutes (during the fire alarm which had resulted in Phoebe emerging with her dog from the front door of the building) when the computerised system for recording buzz-ups was de-activated entirely. This would have allowed anyone to access any part of the building undetected by the recording system during that period.
Coroner White made a speculative finding that Phoebe dropped and broke a drinking glass in the apartment that afternoon. At paragraph 344 he commences this part of his finding:
344. ”At some stage, she dropped and broke a glass. At a later point, she attempted to clean up the glass fragments and may have placed them into a plastic rubbish bag, while cutting herself in the process”.
There is nothing in the evidence to show that Phoebe dropped a glass. A glass could have been knocked out of her hand or even thrown at her. Conversely she could have thrown it at someone else, and thus even triggered a violent reaction. She was a feisty young lady. There was an area of staining on a wall which was noted by the police but not examined or sampled.
The Coroner describes Phoebe cleaning up broken pieces of glass and putting them into a garbage bag, but there was no evidence either that she did this or of pieces of glass being found in a bag. There was a noticeable amount of broken glass on the floor. The Coroner positively found that she cut herself on the glass, apparently choosing this as an explanation for traces of blood being found in the apartment. There was blood on a computer mouse, a computer mouse pad and a door architrave, the latter being the only bloodstain in the apartment which was DNA tested. It was shown to be Phoebe’s. There was no blood on the broken glass in the apartment. Droplets of her blood were found on the floor of the 12th floor refuse room. The Coroner describes this blood in the refuse room as, “…a small portion of blood from her earlier cut…”. The singular is implied, but there were a few droplets and he should have described them as such. The Coroner continues:
345. “At some later point, shoeless and without her bag and keys, she left the apartment (and her dog and the lit candles), and went to the refuse room on the same floor, where a small portion of blood from her earlier cut was subsequently found. She is likely to have put a bag of rubbish into the chute at this time”.
The Coroner also said Phoebe had been drinking Vodka from the glass. He had no evidence to support any of the above suppositions, other than (in the latter case) the evidence of Antony Hampel that he smelt vodka in a glass on the kitchen bench (there were in fact two glasses – on opposite sides of the bench). Considering that vodka is virtually odourless, this is a doubtful supposition – not that anything important turns on it, since Phoebe’s known blood/alcohol level was 0.160%. Neither of the glasses, nor the broken glass was connected to Phoebe by finger prints. No broken glass fragments were found in the kitchen waste bin or in the single rubbish bag that came from the wheelie-bin into which she fell in the ground floor refuse room. That plastic bag was not conclusively identified as having come from Mr Hampel’s apartment. Three other bins in the apartment were not examined or searched and there is no evidence to support the Coroner’s suggestion that Phoebe carried a plastic bag of rubbish to the refuse room and put it in the hatch. The presence of two glasses raises its own unanswered questions, the obvious one being, “was there another person drinking with Phoebe”? The glass on the counter and the broken glass on the floor were not checked for fingerprints. The Coroner continues:
346. “Thereafter, in a poor condition arising from her consumption of alcohol and zolpidem, at least the latter of which was unwittingly made available to her by Antony, I find that Phoebe climbed into the chute with her bottom initially seated on the inside surface of the refuse entry door”.
It should be noted here that a videotaped re-enactment I conducted showed the great difficulty experienced by two extremely fit and sober young women of around Phoebe’s size in achieving a seated position in the 12th floor garbage hatch. Their hands and feet were all over the hatch door and its surround, both of which were made of satin finished stainless steel. On the night of Phoebe’s death there was very little marking of any kind on these surfaces, no readable fingerprints and no blood. She was in fact bleeding, as evidenced by the previously mentioned drops of her blood on the floor of the twelfth floor refuse room. Phoebe was also barefoot. The Coroner continues…
347. “At the time I find that her mental state caused by her earlier intake, was the same as the state described above by Dr O’Dell, (‘similar to that of sleep-walking’), i.e. an unconscious state with a level of motor control in place, or at the very least, that she was deeply confused and quite unable to think in a rational manner”.
348. “Phoebe’s long term enthusiasm for climbing, and penchant for undertaking physically challenging activity was a factor in this event”.
349. “She then levered herself into the chute while still facing away from the entry door and commenced to move down the chute cylinder, this in the initial stages at least, by pressing her extremities, and her bottom and back against opposite walls of the chute, thereby controlling herself in descent”.
All of this is speculation! Coroner White makes suppositions and findings about the effects of the Zolpidem (“Stilnox”) in Phoebe’s system, to the point of making a positive finding that in combination with the alcohol in her system, it (Zolpidem) caused her to climb into the chute while in an ‘automatic state’. He refers to this in his finding at paragraphs 350 and 354:
350. “As set out above the precise effect that the combination of zolpidem and alcohol had upon her cannot be established to a great degree of certainty. I am satisfied however that her use of these substances in combination, did in fact impact upon her mental state in a significant way, and directly led to her entry into the chute…”. The Coroner goes on to explain at length in this paragraph why he did not regard Phoebe’s actions (as he has theorised them) to be suicide. I agree with that conclusion. The next critical parts of his finding are in paragraphs 353 & 354:
353. “It follows that I conclude that her descent was not one caused by either the fact that she had earlier been placed in the chute while unconscious, (but not in an automatic state), or otherwise rendered unable to exercise control over her decent (sic) by an assailant. I am similarly satisfied that she did not consciously determine to undertake a descent by free fall, with the intention of bringing about her own death”.
354. “As above then, and having regard to all of the evidence I conclude that in an (sic) zolpidem/alcohol induced sleep walking (automatic) like state, or while deeply confused and disorientated, (sic) Phoebe entered the chute and began to climb down towards the ground floor, this without any awareness of the dangers implicit in this behaviour”.
The evidence showed that although it was not prescribed for her (it was Antony Hampel’s prescription), Phoebe had taken Stilnox previously and there was no evidence that the Stilnox produced any kind of bizarre behaviour on those occasions.
There was evidence before the Coroner that although (globally) there have been numerous recorded instances of Zolpidem (‘Stilnox’) producing bizarre behavioural effects, they are relatively rare. It should be noted that the reported instances of bizarre behaviour attributed to Zolpidem are considered bizarre because the person is asleep, not because of the actual things they do, which are usually things they are accustomed to doing when they are awake; for example, walking, driving, painting, sexual activity etc. Climbing into a garbage disposal hatch was not a normal activity for Phoebe (or anyone). The ability of Zolpidem to have produced in Phoebe the effects described by the Coroner is, I submit, unknown and the Coroner’s ‘positive’ finding can only be speculation. What can be said about the Zolpidem with certainty is that it would have had an effect on her central nervous system and it would have exacerbated the physical effects of her alcohol intoxication, making the climbing feats attributed to her by the Coroner even less feasible . This is known from the pharmacology of the drug.
It is an extravagant hypothesis to attribute to the drug such bizarre and exceedingly difficult feats as climbing into a garbage chute in the first place, and then being able to climb down or retard her fall in the vertical steel shaft once inside it. The Coroner’s ‘positive’ finding that Phoebe did all this is ludicrous and it is not supported by the evidence. It has the potential to seriously erode the public credibility of the Coroner’s Court.
The absolute ‘bottom line’ regarding this theoretical, speculative finding is that it should not have been made unless there was positive proof that no one else was or could have been involved. That proof does not exist.
When Antony Hampel made a specific request of the Coroner for a finding totally eliminating the prospect that he was in any way involved in Phoebe’s death, I put a submission to Coroner White giving eight concise reasons as to why such a finding should not be made. The Coroner said he noted my submissions, but he clearly disregarded them. They are as relevant now as they were in April, 2014. I am attaching a copy of that two-page document.
Another very disturbing aspect of this case concerns the Coroner’s deliberate choice to substantially ignore the closing submissions provided by his own Counsel.
A Melbourne barrister, Ms Deborah Siemensma was briefed to act as “Counsel Assisting the Coroner”. She did an outstanding job throughout this lengthy inquest and came back every day, having clearly ‘burnt a lot of midnight oil’ going over the transcripts. Her examination of every witness was insightful and thorough. Ms Siemensma produced for the Coroner a closing submission comprising sixty eight pages. It contained a detailed analysis of the evidence and clear, well considered submissions. In every case the submissions were backed up by either relevant evidence or an absence of evidence. Her overriding advice was that Coroner White, on the evidence before him, could only return an ‘open’ finding.
Ms Siemensma specifically advised him against making:
(a) a finding of suicide;
(b) a finding of misadventure;
(c) a finding of death caused by borderline personality disorder;
(d) a finding which determined either that a ‘third party’ was involved or was not involved in Phoebe’s death; or
(e) a finding which specifically exonerated Antony Hampel from complicity.
Coroner White followed only the first and third of the above specific pieces of advice by excluding ‘suicide’ and ‘borderline personality disorder’. He deliberately flew in the face of the other three, making no reference (oral or written) to the advice he had been given or why he chose to ignore it. He made positive findings as to items (b), (d) & (e) above.
There were features of the evidence placed before Coroner White which raised unanswered questions, but were not referred to by him in his findings as having relevance or significance. Among these were indicators that Phoebe was intending to go out on the afternoon of 2nd December. For instance, her ‘Prada’ sunglasses were found near her head on the compactor room floor and it was her habit to always wear them when she was outside on sunny days, invariably wearing them on top of her head when not using them. She would be unlikely to have them on inside unless she was about to go out.
In one of the police photographs, Phoebe’s hair straightening irons were shown plugged in and sitting on the bathroom floor, which was another indicator of preparations to go out at some point. They were unlikely to be left out and plugged in when not in use, given Mr Hampel’s reputedly fastidious concern with neatness and tidiness in the apartment. Yet another indicator that Phoebe intended leaving the apartment was the mobile ‘phone charger which was photographed in her bag on the kitchen bench, along with her keys.
Mr Hampel said in evidence that he believed Phoebe had lost her ‘Nokia’ phone (during her absence on Monday night and Tuesday) and he said (in his second version on the point) that he had taken her iPhone to a shop for repair on Thursday 2nd December, the day of her death. If these statements were both true, it would mean Phoebe didn’t have either of her phones that evening, raising the question as to why she had put a charger in her bag. The presence of the charger indicated that she did have a phone and was preparing to go somewhere. It also indicated an intention to be away for long enough to possibly need to re-charge her phone.
When Phoebe was found in the compactor room, her jeans were below her knees. They were undone at the waist and her studded belt was only threaded through the first two of the five belt loops, consistent with her being interrupted and possibly disabled while in the process of putting the jeans on. There was much speculative discussion and testimony about this situation during the inquest because if the jeans had been below her knees before she went into the chute, it would have been physically impossible for her to have climbed in by herself. The key witness concerning the jeans was Louise Brown, a Forensic Science Officer who expressed an opinion that she thought the jeans were in the ‘worn’ position when some injuries were sustained, but that no injuries lined up with other substantial damage to the jeans. In the event, the matter was not conclusively determined; resulting in another unanswered question (not referred to in Coroner White’s finding) which again raised the possibility of another party being involved. The evidence was not capable of precluding that possibility.
In the ‘comments’ part of his finding, the Coroner said: (a) that the police should have immediately secured the CCTV hard drive; (instead, it was left there for the management of Balencea Apartments to look after – resulting in much of it being recorded over and lost); (b) that the police should have taken possession of the two computers in the apartment on the night of Phoebe’s death; and (c) that the first police on the scene should not have prevented the Ambulance crew from checking Phoebe on the basis that it was a ‘crime scene’. This (latter) obstruction resulted in Phoebe not being medically checked at all for nine and a half hours (4.35am the next day at Western General Hospital), so it was not positively established that she was actually dead when found. The Coroner said however, that he was satisfied for reasons set out in a discussion of the evidence of Dr Lynch (pathologist) that…”it is clear that Phoebe was deceased by the time the ambulance officers arrived at the scene”. Coroner White was not entitled to draw that conclusion.
In fact it was not clear. It is well known medically that in circumstances such as these, nothing short of a proper physical examination could have allowed a definite determination to be made that the person was dead. Phoebe was not killed by the fall itself, because we know that she crawled around on the floor of the compactor room for some time in pitch darkness before passing out near the door. It is not beyond the realm of possibility that she was comatose but not actually dead when found. The police sergeant who had cordoned off the area and prevented access by the ambulance crew was not qualified to pronounce Phoebe dead no matter how long he had been in the police and no matter how many dead bodies he had seen. The ambulance personnel could only view Phoebe through a partially open door and were thus also unable to conclusively make the pronouncement. The only ‘evidence’ to which the Pathologist, Dr Lynch had access (as he did not attend the scene) was the very limited second-hand observations of the police and the ambulance crew – none of whom had even touched her. In his evidence, Dr Lynch, when questioned about indications of signs of life, said that the ‘acid test’ was the finding of a pulse and that you couldn’t say with absolute confidence that someone was deceased, without physically examining to establish that matter. As a result, he could not make a definitive assessment and neither could Coroner White, yet he did.
The Coroner continued… “There is also no doubt, in my view that Victoria Police will continue to prioritize the preservation of life, above the perceived possibility of damage to the integrity of a crime scene, in determining how to proceed in any particular instance. It is also appropriate to record that these omissions have not caused a lacuna like difficulty in the circumstances of this investigation, this having particular regard to the swipe card evidence and the additional circumstantial evidence discussed above, which together with the rest of the evidence has led to a comfortable degree of certainty concerning the findings and conclusions, here set out”.
Coroner White’s reference to the police ‘continuing’ to prioritize the preservation of life etc..’ in the above statement absurdly implies that that was what the police had done in this case, when in fact they conspicuously failed to do so by preventing the ambulance officers from examining Phoebe, for the expressed purpose of preserving a crime scene.
The Coroner ‘found’ that “…these omissions (apparently referring to the first two matters ‘a’ and ‘b’ above in his comments concerning the police) have not caused a lacuna like difficulty…” In fact the omissions may well have caused a ‘lacuna’ (a gap in the evidence), because Coroner White cannot know how much evidence may have been lost through the failure to secure the CCTV hard drive and the computers at the outset, or even of the failure to examine Phoebe’s iPhone SIM card. That unquantifiable lack of knowledge does not qualify him to make such a comment and it should scarcely be conducive to the ‘comfortable degree of certainty’ he professes to have in relation to his findings.
Phoebe’s iPhone and SIM card were handed over to Antony Hampel eight days after her death after an incomplete examination by the Homicide Squad. By the time of the inquest nearly three years later, the SIM card (which had not been examined at all by the police in the first place) had disappeared. Mr Hampel told the inquest he could not find it.
Mr Hampel’s iMac computer (which Phoebe also used) was not taken from the apartment by the police until March, 2011, nearly four months after her death. Neither of the two computers was taken on the night she died, so no one will ever know how much computer evidence was lost or corrupted. In the event, the Victoria Police ‘E’ Crime Division (which is hopelessly under-resourced) did not have the necessary equipment to properly analyse an iMac computer. This is amazing as it was a common type. Unsurprisingly the resultant analysis was poor and often inconclusive. The analysis of the computer only commenced after the start of the Inquest (two and a half years after it was seized); such is the size of the backlog at the “E” Crime Division. This was another matter which ought to have been addressed by the Coroner in either his comments or his recommendations. A 21st century police computer crime department needs to be appropriately equipped and staffed.
The instances of police failings in this case, in which evidence was variously missed, not sought, not photographed, not secured or not noted and therefore lost for all time, were numerous, and more so than I had originally known about. Nearly every day of the inquest during the police evidence, fresh deficiencies were revealed, some quite major. As a retired police officer, I was amazed and disappointed. The South Melbourne detective to whom the Homicide Squad ‘flick-passed’ the case after a few days, did the best he could in the circumstances, but too much had been lost by that time to permit a proper, thorough-going result. This was a death which may have been a homicide. Perhaps we will never know, but the evidence to this point is not conclusive and is only capable of justifying an open finding.
Coroner White’s handling of this (in my opinion) decidedly suspicious death has resulted in findings which are not justified by the evidence on the balance of probabilities. I am disgusted by the absurdity of the findings and by the shortcomings of the police who had control of the initial action phase. They have seriously undermined my confidence in both the Judiciary of this State and Victoria Police, two institutions I once held in high regard.
Milawa – 10th January, 2015.