Isles v State of Queensland[2015] QDC 335

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 23 September 2009 Michael James Isles, then a senior sergeant in the Queensland Police force attached to the Police station at Ayr, drove away from his home in an unmarked Police vehicle, a Toyota Aurion sedan. The vehicle was subsequently found abandoned on a property off the Ayr-Ravenswood Road. There was no sign at the vehicle of anything untoward having happened, but no trace of Mr Isles, dead or alive, has subsequently been found. On 14 September 2012 the state coroner published findings that Mr Isles had died, that he had died of gunshot wounds, that he died on 23 September 2009 on or near Hillsborough Station near Ravenswood in Queensland, and that he intentionally took his own life. On 1 October 2015 Mr Isles’ son, Steven Isles, filed an application in this Court to have these findings set aside. The application also seeks to have an open finding recorded. The coroner appeared to abide the order of the Court, and to resist an order for costs. He helpfully made available a copy of his reasons, a list of exhibits and CD’s containing the exhibits, to which, with two exceptions, I have not needed to refer.

The District Court’s power

2. [2]
   The Coroners Act 2003 provides in s 50 so far as is relevant:

3. [3]
   The Court of Appeal considered the operation of these provisions in Hurley v Clements [2010] 1 Qd R 215.  The Court in a joint judgment said at [29] that the reference in s 50 to a finding at an inquest is a reference to a finding of the kind required by s 45(2) of the Act.  That provision of the Act specifies the findings a coroner who is investigating a death or suspected death must, if possible, make, being respectively who the person is, how the person died, when and where the person died (and particularly whether in Queensland) and what caused the person to die.  Hence in the present case the relevant findings by the coroner are those set out above.  The Court of Appeal rejected the proposition that any factual finding made by a coroner in the course of giving reasons for those findings may be set aside under this section. 

4. [4]
   In Hurleythe District Court judge was asked to set aside the findings specifically on the basis that they were not reasonably open on the evidence.  The Court of Appeal held that the circumstance that the evidence reasonably supported a possible finding different from that made by the coroner would not warrant setting aside the finding made by the coroner if that finding too was reasonably supported by the evidence: [33].  It follows that it is not a question of whether the finding made by the coroner was the correct or preferable finding on the evidence, but whether it was a finding reasonably supported by the evidence.  It follows that the proceeding in this Court is in the nature of an administrative law review of the coroner’s decision, rather than a merits appeal from that decision. 

5. [5]
   In Hurley, the Court of Appeal concluded that the coroner’s finding as to the cause of death was not reasonably open on the evidence, because there was no medical evidence which supported the conclusion reached by the coroner, and there was evidence from one medical witness, not effectively contradicted, which was directly inconsistent with the conclusion reached by the coroner.  The Court of Appeal concluded that as a result it was appropriate to set aside the whole of the finding of the coroner as to how the deceased died, and to order the re-opening of the inquest to re-examine that finding.  The Court of Appeal directed the State Coroner to direct that occur before a coroner other than the coroner who had dealt with the pervious inquest. 

6. [6]
   In the present case, the thrust of the applicant’s argument was specifically to set aside the finding that the deceased had intentionally taken his own life, though there was some challenge to the finding that the death of Mr Isles had in fact happened. It is clear from the section that if the finding is set aside the appropriate consequential order is to direct the state coroner to reopen the previous inquest or to hold a new inquest, or to direct another coroner to do so; there is no power in this Court itself to make some other finding, as sought by the applicant.

Background as found

7. [7]
   The reasons of the coroner set out in a good deal of detail the history of the deceased, what had occurred in his life prior to this day. I think they can for my purposes be summarised to some extent. The deceased was born 26 June 1951, and was sworn in as a Police Constable on 9 August 1974 after completing his training at the Oxley Police Academy. Apart from the first two years his service was spent in rural and regional Queensland, having risen to the rank of Senior Sergeant and having been the recipient of Police service medals. He was married and had three children, and at the time was living in a Police residence adjacent to the Ayr Police station, having been there since his transfer to that position in July 1999. He was said to be a popular well respected man among his subordinates and within the community generally.

8. [8]
   Sometime before going to Ayr, he was transferred from Cloncurry to Bowen on 9 August 1995 following his promotion to Senior Sergeant and placed in charge of the Bowen Police Station. Evidently this disappointed the officer who had previously been in charge of that station, and who had some support among the Police attached to that station, and within the local community, and this led to some hostility to him in that position. He took a short period of sick leave during which he consulted a general practitioner who arrived to some conclusions about his mental health, but did not recommend any intensive therapy, other than apparently to continue the use of an anti-depressant drug which had been prescribed previously by a mental health team in Mt Isa. The coroner thought it was relevant that he needed mental health care when in Mt Isa and when in Bowen, and that he had been prescribed anti-depressants, as this suggested some mental health vulnerabilities.

9. [9]
   In July 1999 Senior Sergeant Isles was transferred to Ayr. Sometime later an Assistant Commissioner responsible for the region which included Ayr was made aware of some concern within that community about a perceived lack of Police enforcement action against the members of a particular local family. This was investigated by the Assistant Commissioner, and it appeared to the coroner that Senior Sergeant Isles had resented the scrutiny which he and his station were receiving as a consequence of this investigation, and had believed the Assistant Commissioner was out to have him removed from the Police Force. The Assistant Commissioner had received some other information which he had passed on to the Crime and Misconduct Commission and the Police Ethical Standards Command, and as a result there was some continuing covert operation investigating a potential drug dealer, and the possibility of Police collusion with or involvement in the dealer’s illegal activity.

10. [10]
    One matter that came out of this was the interception of a phone call in which one person suggested to another person that a driver licence of a specific class, needed to operate certain farm vehicles, could be secured at a price with the co-operation of a Police Officer. Subsequently two employees of that person came to be issued such licences after being tested by Senior Sergeant Isles, and this led to some investigation of the circumstances surrounding the issuing of those licences, which did not reveal any evidence of impropriety or wrongdoing by him. Nevertheless, it appears that he became upset by the fact that these investigations occurred. They involved the execution of search warrants by CMC Officers at the local Police Station and at his home, on a day when he was off duty and involved in a project for the local Lions Club. His inspector went to where the project was being conducted in plain clothes and in effect recalled him to duty, and took him to the Police Station, to facilitate the conduct of the search. He was later critical of the inspector’s behaviour on that occasion, particularly in failing to provide him with information about what the CMC investigation was about, but the coroner regarded the inspector’s behaviour on this occasion as consistent with ordinary Police procedure and entirely proper.

11. [11]
    Soon after the search, another inspector was transferred to the Ayr Police Station and put in charge of it. That officer sought to explain that this was to give him plenty of time to take appropriate advice and to prepare his response to the investigation, but inevitably he was most unhappy about the situation. Shortly after this he began to take sick leave on the ground of stress. He refused contact with Police officers apart from a QPS Chaplain, who noted that his attitude towards Police had become very hostile. He received some care from a General Practitioner and Psychotherapist in Ayr, and subsequently a General Practitioner and Psychotherapist in Townsville. The Ayr Psychotherapist noted that on one occasion during a consultation he said “If I was ever to commit suicide I would do it in a way that no one would find me.” The Townsville General Practitioner prescribed anti-depressant medication but subsequently became aware that he was not compliant in taking it. The doctor thought the stress associated with the investigation was aggravated when he was diagnosed as suffering from cancer, for which he received radiation treatment which was ultimately successful.

12. [12]
    In early April 2009 a notice of unfitness for duty on medical grounds pursuant to Police Service and Administration Act 1990 was served on Senior Sergeant Isles.  This was the first step in a process of forced redundancy, and ultimately was not acted on, though he remained off work.  This also provoked hostility towards senior Police.  The following month he was advised by the CMC that he had been cleared of any wrongdoing as a result of its investigation. The investigation by Ethical Standards Command had led to certain changes in the way in which the Ayr Station was being administered, and to a disciplinary investigation into various charges, most of which were found to have been without substance prior to the time of his disappearance.  In August 2009, during holidays on the Gold Coast, he became very anxious and upset, and the Townsville GP faxed a prescription for some different medication to a chemist on the Gold Coast. 

13. [13]
    Soon after that Senior Sergeant Isles gave notice to someone in Human Resources of his intention to retire. This was approved, but he subsequently withdrew his application, which was also accepted. In September 2009 the Townsville Psychotherapist indicated that with the benefit of the new medication he was the best he had ever seen him. Soon after this there was a meeting during which a return to work plan was agreed. It was flexible and provided for a graduated return to work with initially quite limited hours, but with the prospect of full duties, presumably if the return to work was successful. The coroner accepted evidence that some care had gone into the plan to insure the deceased was not being set up to fail. His then treating GP had certified him fit to return to work via the plan, which had been shown to him. Senior Sergeant Isles attended the Ayr station prior to his return to work to meet the officers and to familiarise himself with the surroundings; a new building had been opened while he was on sick leave.

14. [14]
    On 21 September 2009^[1]his senior officers met him at the new Police Station to greet him and to provide him with some briefing.  They also mentioned the outstanding disciplinary charge, and he was told it was to be dealt with in coming weeks, and was expected at worst to result in a requirement that he receive managerial guidance.  The meeting was amicable though one of the officers considered him to be uncomfortable, and not wanting to be there.  The new office was of the open plan variety, and he was working in the view of the staff at the station.  He had been offered an office then occupied by the acting officer in charge of the station, which he declined on the basis that he was not back to full time work and would be out training for part of the time. 

15. [15]
    On the first two days of work he appeared to cope, and said to his family that he had little to do. That was in part because a new computer system had come into use while he was on sick leave, and he was not yet trained for it. On the second afternoon the senior officer spoke to him to confirm he would be able to attend operational skills training in Townsville the following day, and was told that he was happy with the arrangement and had no problem with the extra hours or the travel to and from Townsville. He dined that night with his family and a friend at a local restaurant and appeared to be in good spirits.

16. [16]
    Nothing unusual was noticed by his family the following morning. He entered the Police Station at 7:12am and entered the equipment room where he obtained his equipment but not his service pistol, and then left the station a few minutes later alone in the Aurion. He drove home where he was seen by a nearby resident to put something in the boot of the car, obtained some additional lunch money from his wife and some sunglasses from his son and a notebook, then set off in the car, apparently for Townsville. It was later noticed that he had left behind his mobile phone, his medication and the rosary beads he usually carried in his pocket. He was due to start his training course at 9:00am in Townsville but did not attend.

17. [17]
    A vehicle matching the description of the unmarked Police vehicle was subsequently seen by witnesses on the Ayr-Dahlberg Road, on Mulgrave Road at Clare and on the Ayr-Ravenswood Road.^[2]One of these witnesses noted that the vehicle was driving ahead of two four wheel drive vehicles, possibly traveling together but not in close convoy.  At about 10:00am a prospector came upon the Aurion parked in the middle of a dry creek bed on a dirt track leading off the Ayr-Ravenswood Road to Eight Mile Creek.  He spent some time walking along the creek bed prospecting, but when he returned to his vehicle the Aurion was in the same position.  At that point he specifically looked for footprints associated with the vehicle but saw none except his own, and drove back to Ravenswood. Sometime later when he was aware of the Police search he reported this to a local Police Station. 

18. [18]
    That evening Mrs Isles became concerned that her husband was late arriving home, and telephoned the Police Station. The officer on duty checked with the people in Townsville, found out he had not attended training, and then went to his home to get some further information. He returned to the station and found that the police pistol had not been taken, and was then told (by the applicant by phone) that it appeared a shotgun was missing from the home gun safe. During this call he heard a woman scream and was then told by the applicant that his mother had found a suicide note. She told the inquest she found a blue hardcover notepad amongst some clothes on top of a cupboard in the bedroom, and recognised that it was one where he had recorded his thoughts when suffering from stress and depression. The coroner said that on the last of a series of used pages from the back of the book was one undated page with a hand written entry which, while not expressly referring to an intention to suicide, was unmistakeably one intended to convey that impression.^[3]

19. [19]
    An intensive search was mounted including an aerial search, but it was initially focused on the route between Ayr and Townsville. The Aurion was found on 28 September 2009 by the manager of Hillsborough Station, and subjected to detailed forensic examination. It had an odometer reading 79 kilometres more than when it was booked out by the deceased. Its trip computer showed that on the last occasion the vehicle was started it had travelled a distance of approximately 45 kilometres in about 40 minutes, the distance between where it was found and a point just south of Clare. The keys to the vehicle were on the floor inside, and it contained a number of items consistent with its having been driving there by Senior Sergeant Isles: his uniform shirt, trousers, belt and utility belt, but not his footwear. In the boot there was a partly full box of shotgun cartridges. From 28 September to 5 October an extensive search was mounted in the area around where the vehicle was located, without finding anything relevant.

20. [20]
    Since that time there have been reported sightings of him but they have been investigated and none proved to be him. There is no record of his having accessed any financial institution or Government Department since his disappearance, and he has not left Australia using his Passport. The area where the car was found was adjacent to the craggy, rock strewn ravines and gulleys of the Leichardt Range, which would have provided plenty of cover within which he could hide.

Reasons for findings

21. [21]
    The coroner acknowledged that there were a number of factors, identified in the reasons, not supporting suicide, but then listed six factors suggesting suicide: It was unlikely he would suddenly decide to go for a walk in the bush and not even tell his family of his changed plans. There was no reason to take a shotgun and ammunition if he was just going for a walk. (A suggestion that the shotgun was damaged in some way and might not have worked properly and so was a poor choice of weapon compared with his service pistol was rejected.) The deceased was familiar with Police search procedures and could have ensured that he walked beyond the area likely to be searched. He had previously told a therapist that if he were to kill himself his body would not be found. The note clearly contemplated his being dead when it was read by the family, and although undated was on the last used page of the notebook. If it had been written earlier in connection with some other plan from which he had resiled, it is unlikely he would have left it lying around the house to be found later. His mental health had not been good in recent months, against a background of longstanding mental illness, and a sudden relapse was possible.

22. [22]
    It occurs to me that there are some other features mentioned in the reasons which tend to support the finding made. The fact that the key was left in the car suggests that he did not intend to return when he walked away from it. He changed out of his Police uniform which was left in the car, but out of sight in the boot or under the front seat, so that it would not be visible on casual inspection. He evidently continued to wear his uniform footwear. It appears to me that he took steps to ensure that a search for him would not be raised too quickly, presumably to give him time to get well away from the car after he left it: his behaviour at the Police station, including taking his utility belt but leaving his pistol, would be consistent with his planning to attend the training course, as was his obtaining extra money for lunch and getting a good pair of sunglasses. Leaving his mobile phone at home would make it more difficult to contact him when he did not turn up in Townsville, if enquires were made at that time. The note in the notebook was concealed to some extent, though not so thoroughly that there was a serious risk of its never being found. This was consistent with a desire that it come to the attention of family members, but not soon after he had left home. Leaving his medication and rosary also strike me as consistent with suicide.

Applicant’s material

23. [23]
    The applicant filed an affidavit in support of his application on 1 October 2015. Attached to the affidavit was a two page document headed “submission to parliament”, and an 18 page document headed “application for coroner’s finding to be set aside”. The affidavit asserted that the applicant has evidence of a senior Police officer having interfered with a CMC investigation, and that his father was a victim of extreme bullying by Police, but this evidence was not set out in the affidavit. He also complained about the conduct of an investigation by the parliamentary Crime and Misconduct Commissioner, which does not appear to me to be connected with the coroner’s inquest. The submission to parliament seeks the appointment of a Royal Commission to investigate the matter. The second document identifies the grounds for the application as “culmination, including new evidence that demonstrates extreme bullying that manifest into corruption”, a system where a particular senior officer’s actions remained completely unmonitored, and a denial of natural justice. These grounds do not address the matters specified in s 50(5) as the matters upon which the Court must be satisfied in order to set aside the finding by a coroner.

24. [24]
    The applicant asserted that his father had been targeted, apparently with a view to creating a vacancy to be filled by a particular person, who was however ultimately placed into a different position. The applicant was critical of the fact that the investigation into his father’s disappearance was conducted by Police, but that would be the usual and I suspect almost inevitable practice.

25. [25]
    Much of the material in this document involves assertions of corruption and dishonesty on the part of a particular senior Police officer who was at the time in a position senior to the applicant’s father, though not as his immediate superior, and who was involved in the background to the CMC investigation which upset the applicant’s father. It is not necessary for me to consider this material in detail, most of which consists of mere assertion on the part of the applicant, because it seems to me that it plainly does not address any of the matters set out in s 50(5) of the Act. It seems to be put forward by the applicant on the basis that there were persons who had a motive to murder his father, but, given the approach adopted by the Court of Appeal in Hurley (supra), merely showing that there is material which provides some evidence of a motive for murder is not helpful for an applicant for an order under that section. 

26. [26]
    One of the things said by the coroner in the course of his reasons was “there was no evidence that any person had motive or desire to kill Senior Sergeant Isles”. It may be that this material is being put forward by the applicant on the basis that this was a finding by the coroner which he could challenge in this proceeding. It is clear from the reasoning in Hurley (supra) that this proposition is not a “finding” in the sense of a finding which can be challenged under s 50(5) of the Act.  There is, however, nothing in the document which addresses the availability of evidence in relation to the finding of suicide, or identified any relevant fresh evidence. 

27. [27]
    In submissions in Court the applicant played a recording of a telephone conversation he had had with a man who was driving a truck on the Ayr-Ravenswood Road on that morning and who said that he crossed a grey Toyota Aurion which had a driver and one passenger in the front seat. He said on the tape he did not get that good a look at them, but they appeared to be 45 to 55, cleanly dressed people. He said he subsequently saw on television the Police Aurion that had been found on the property, and he was sure it was the same vehicle that had passed him; he made no reference to identifying the registration number, the identification being apparently simply on the basis that it was a grey Aurion. He did not purport to recognise Senior Sergeant Isles as either of the persons in the car. This was put forward as fresh evidence.

28. [28]
    There was a statement from this witness which was before the coroner^[4]though the statement did not contain his identification of the car as the one that he had subsequently seen on television; he described it in the statement just as a “silver sedan car”.  This part was relied on by the applicant as new evidence which cast doubt on the finding.  If this was the vehicle which Senior Sergeant Isles had driven away from Ayr in, the presence of the other person in it would be difficult to reconcile with the suicide theory.  No person came forward to indicate that he had been given a lift by Senior Sergeant Isles on the morning in question.  The theory is that the other person caused him to drive to where he left the car, and then either enticed him or forced him to leave the vehicle and go to some secluded spot where he was murdered.  Presumably the killer then was picked up by an accomplice in another vehicle. 

29. [29]
    There are, however, difficulties in reconciling this theory with other evidence. Senior Sergeant Isles was seen to drive away from his home alone in the Aurion, after having put something, presumably the shotgun, in the boot. He did so without his mobile phone. If he subsequently picked up someone else, it must have been prearranged and he must at that stage have been going voluntarily. This is a picture of a surprisingly obliging victim. There is also the consideration that his failure to attend the Police training course in Townsville that day is very odd if he did not plan to kill himself. At the time he was leaving home, he took extra lunch money on the basis that he was going to the course. Either this was cover and he was actually planning to kill himself, or it was genuine, and when he drove away from home he actually intended to drive to Townsville. If so, why did he take the shotgun? And, not having a mobile phone, how did it come about that his plans changed? There was nothing advanced by the applicant as to how the proposition that his father had been in the car with another man on this road that day could be reconciled with his behaviour earlier that day.

30. [30]
    There were two other possible explanations of course for the evidence of this individual: one is that he was mistaken about the number of people who were travelling in the Aurion that he saw, something he had no particular reason to be concerned about at the time; he may have seen two men in another vehicle, and mixed up the two incidents. The other possibility is that there were two grey Toyota Aurions on that road that day, and this individual saw a different one. That seems a bit of a coincidence, but a grey Toyota Aurion would not be all that unusual a vehicle, and it is certainly a possibility. The time he gave for having passed the car (about 1 pm in the statement to Police, where he also said he left a particularly property at about 10.30 am; in the conversation with the applicant he mentioned 10.30 am to 11 am.) was well after the time nominated by the prospector as when he came upon the Aurion on the bush track that day, 10 am, which is more consistent with the time Senior Sergeant Isles left Ayr, and the distance travelled. Overall I am not persuaded that, to the extent that the evidence from this individual is new evidence, it casts doubt on the findings of the coroner.

31. [31]
    The applicant also put forward as evidence two different versions of the extract from the national missing persons database dealing with his father, one extracted before 19 October 2015 and one after that date, where a different photograph is used and there is some change in the wording describing the circumstances of his disappearance. The applicant seemed to be relying on the presence of this entry in the database as being inconsistent with the finding of the coroner that his father was dead, but plainly it was not. There was no material as to the criteria on the basis of which entries are made in this database. I also do not see anything odd or suspicious in the change of wording, or the change in the photograph used on the database. This is not new evidence which casts doubt on any finding of the coroner. Otherwise, the various matters advanced orally largely covered the same ground as matters advanced in the 18 page document attached to his affidavit, and were, for the same reasons, not directed to the matters relevant to s 50(5). Finally, criticism was directed at the making of a standing non-publication order in respect of a particular Exhibit, but that is not a matter which is subject to review by this Court under s 50.

Conclusion

32. [32]
    I accept that there was no direct or scientific evidence of suicide, but the factual material assembled by the coroner and summarised earlier in these reasons provides, in my opinion, a strong circumstantial case supporting the hypothesis of suicide. Although each individual part of this case is not conclusive, and could be explained in another way, it is the combined effect of all the indications which must be considered. It cannot be said that there was no evidence to support that finding, nor am I persuaded that the finding could not be reasonably supported by the evidence. Evidence that a particular senior Police officer and his cronies may have been motivated by ill will against Senior Sergeant Isles, may provide some evidence suggesting murder, but that in itself does not justify setting aside the finding under s 50, as shown by the approach of the Court of Appeal in Hurley (supra) summarised earlier.  The applicant’s argument was also that, in the absence of the evidence of a body, it was not appropriate to make a finding of suicide.  I do not accept that a finding of suicide, or indeed for that matter a finding of death, should not be made when no body has been located; the circumstances of this matter provide an example of a case where the absence of a body is consistent with a finding of suicide. 

33. [33]
    One of the matters covered by the coroner in his reasons, in some detail, was the question of whether there was a presumption against a finding of suicide: pp 3-5. The applicant did not address any submissions to the question of whether the coroner’s approach in this respect involved any error of law, and in those circumstances I will not consider that issue. I mention it only because it is apparent from his reasons that the coroner was cautious about making a finding of suicide, and made the finding he did notwithstanding that caution.

34. [34]
    That finding may be unwelcome to the applicant and other members of his family. That is most unfortunate, but this is not something which should affect the performance by the coroner of his statutory function. Overall, I am not persuaded that the applicant has shown that grounds exist to set aside the coroner’s finding under s 50(5) of the Coroner’s Act 2003, and the application is dismissed.