by Robin Bowles
Usually, when family members first encounter the idea of a book I’m planning to write about their story, they often feel an understandable fear that it will extend their pain. But Phoebe’s family was different. They wanted as much light shed on her death as possible. They felt they were up against all the legal firepower of ‘City Hall’.
CHAPTER 14
MISSING EVIDENCE
We resumed on Monday with everyone sounding very businesslike and well prepared with their submissions about what they wanted in or out from Lorne’s chronology of events and the transcript of the recording Natalie had made on her visit to Ant’s apartment on the Monday after Phoebe died. The Coroner decided that publication of both should be suppressed, apart from two passages from the transcript dealing with Phoebe’s relationship with Ant.
Lorne was recalled and answered more questions. Ms Siemensma began by asking him about his assertions that no one from Homicide attended on the night of 2 December. He had to admit it may not have made any difference, given Butterworth’s experience and seniority.
‘You mentioned in your statement that the security log records don’t show Antony Hampel returning to the apartment on Wednesday 1 December during the day when he said he returned to the apartment in the middle of the day to check on Phoebe. What was the source of that belief?’
He said that he’d relied on the computer printouts supplied to him by Eric Giammario. Galbally had already cast doubt on the accuracy of those printouts.
He also confirmed that in his opinion, developed through his own observation, two or at most three glasses of wine would substantially affect Phoebe’s coordination.
Lorne’s statement was long and detailed. Ms Siemensma took him through it, asking him to confirm several details and their sources. Many of them were based on things Lorne had been told by others. As hearsay, they wouldn’t have been admissible in a trial, but hearsay is allowed in the Coroners Court.
Mr Moglia asked Lorne to clarify why he’d felt the non-attendance of Homicide on the night was an issue.
Lorne said it would have been better if Homicide had been there because of their superior access to scientific services. ‘And they possibly had a bit more expertise than the average policeman in evaluating this type of situation.’ He reiterated his concerns about the non-seizure of the CCTV footage on the night.
Moglia asked, ‘In your communication to the police did you express a view clearly asserting that there was a homicide or merely a question that there could have been?’
‘I just put it on the basis that there could have been, but that it was generally a suspicious situation.’
The Coroner broke in. ‘Because of the bizarre-ish nature of what we understand occurred?’
‘Yes, sir,’ replied Lorne. ‘For example, it struck me that if the Homicide Squad had attended, the ambulance officers wouldn’t have been obstructed from checking Phoebe. As it was, she wasn’t examined until nine and a half hours after she was found.’
I thought that there might have been a problem whoever was in charge, but it had been a bad lapse of judgment not to let the ambos in.
Moglia moved to another topic. He asked Lorne to tell His Honour about a Channel 7 program made earlier in 2013.
Lorne explained that Channel 7 had been doing a Today Tonight story on Phoebe’s death, and as part of it, they arranged to film in a block of apartments still under construction that had exactly the same compactor as Balencea. They put two sheep carcasses down the chute from the twelfth floor in order to see what the compactor did.
Lorne described the result. ‘The carcase went down front-end first, and the compactor blade cut the complete fore section off. It cut through ribs, the spine, it cut through everything, clean as a whistle.’
The compactor had made five cuts in all, though Lorne admitted that the sheep was too small to be an ideal subject.
The Coroner said he’d been sent a tape of the experiment, but that it wasn’t in the brief. If Mr Moglia continued down this path and the tape wasn’t in the brief, His Honour said, he wondered ‘how it is I am expected to deal with this material as being probative of any matter that I have to consider in my investigation?’ He wanted to know whether the accuracy and relevance of that experiment could be validated, especially having regard to comments and observations made by other witnesses about the performance of the machine at Balencea.
Moglia said the most the Coroner could really take from it was a prima facie indication of whether the evidence currently included in the brief was sufficient to exclude a possibility.
‘I take it, Mr Moglia, that no one is contesting the fact that Phoebe went down the chute and was discovered on the refuse room floor? That is incontrovertible.’
‘No, Your Honour, that is not contested.’
But how she got through in one piece is, I wrote in my notes.
Moglia asked Lorne how Phoebe was approaching his forthcoming birthday party.
Lorne replied, ‘She was very enthusiastic, and she phoned Amanda and asked if she could bring Ant with her and if they could stay the night.’
The Coroner changed the subject to Phoebe’s fitness. ‘I understand Phoebe was a very athletic young woman, with a history of involvement in sports. And climbing, was that part of her particular interest?’
‘Yes, Your Honour. Well, she liked climbing. She’d climb cliffs or anything that was around. She climbed simulated cliff faces and she’s also climbed rock faces around Mallacoota, but she hadn’t done any active training for about the last three or four months before she died.’
When Mr Galbally stood up, he informed the Coroner there was no need for introductions, because he and Lorne had met when Lorne was a police officer.
Galbally whaled straight in. ‘Is it true that as a former police officer your antennae would have been up when you learnt how Phoebe died?’
‘That’s correct.’
‘So within a couple of days your mindset was foul play? And, secondly, within days you set your sights on Antony Hampel?’
‘Well, I was suspicious of him, yes.’
Was that why Lorne had asked Natalie to make a clandestine recording during her visit to Ant’s apartment?
‘Yes.’
Galbally turned to the lack of records showing Ant returning to Balencea to check on Phoebe on 1 December.
Lorne agreed that this had been one of his major concerns.
‘But you now know that his card has been used to enter the front door and then into the lift and ten minutes later leave the building?’
‘That’s as the records show it, yes.’
‘So that particular concern now seems to have been eliminated as a result of the proper swipe records being available?’
‘Yes.’
Score one for Galbally. He’s good. He launched straight into Lorne’s other key issue — the iPhone. I was particularly interested in this.
‘In your statement you say that if Antony Hampel took the phone for repair on the morning of Wednesday 1 December, there’s something suspicious about who sent the text message, the tomato soup text message at 10.33?’
‘Yes.’
‘And in arriving at your conclusions you relied upon what he said in the 6 December meeting at the apartment, where you say he said he dropped the phone in on the Wednesday morning on his way to work?’
‘Yes, he said it twice.’
Galbally put to him that ‘if the phone was taken to the repair shop on Thursday morning and not the Wednesday morning, that removes your suspicion, doesn’t it?’
‘Well, yes,’ Lorne replied, ‘it reduces the possibility that he sent the text. But it doesn’t entirely eliminate it.’
‘Did you have access to any of the police notes to arrive at this concern?’
‘I don’t think so.’
So, Galbally then suggested, Lorne woul
dn’t have been aware of a police interview between Detective Clanchy, Ant Hampel, his mother Sue, and Linda Cohen that took place on 7 December.
‘Mr Hampel told Mr Clanchy on 7 December that he took the phone on the Thursday and showed him a receipt from a phone shop near his office. Have you spoken to anyone at that shop?’ he asked Lorne.
‘No.’
The Coroner wanted a clarification. ‘Does this receipt show that the phone was received on 7 December or released on 7 December?’
Galbally said that was the day when it was paid for. ‘My client’s father paid with a Visa card and brought it back to the apartment.’
Even the Coroner was getting confused at this point. ‘So the suggestion you’re making is that it was delivered for repair on the 7th and picked up on the same day?’
‘No, your Honour,’ Galbally said. He said that was when George Hampel had picked the phone up from the repair shop and then given it to the police.
Ms Siemensma attempted to clarify things. ‘Because we have a receipt, there doesn’t seem to be any doubt the phone was taken for repair at some point.’
Galbally hammered home his point that the phone had gone in on Thursday, not Wednesday, and said that Ant’s phone records show him near the area of the phone shop at 11.34 a.m. on 2 December.
But that doesn’t prove he was dropping off the phone, I thought. He might have been driving back to work from a meeting. The real pity was that the records at the phone shop didn’t prove which day the phone was left there.
Galbally moved to his final points. The first one was a surprise. He told Lorne that the swipe records showed Ant leaving the building at 8.11 a.m. on Wednesday, the day of the ‘tomato soup’ message, and that two minutes later, Phoebe used her iPhone to email a former lecturer, Vic Rawlings.*
‘This would have been about two hours and twenty minutes before the ‘tomato soup’ message was sent?’
‘I’m not aware of Phoebe contacting Vic,’ Lorne said.
Mr Galbally changed the subject without elaborating. He went on to point out that the computer in the apartment was last used at 2.19 p.m. on 2 December. If Phoebe was alone there, that would have been the latest time we know she was still alive.
‘And the evidence is that he’s arrived home after 6 p.m., after being in the company of several people all afternoon. So do you now accept that, three years later, with all the evidence that has been collected during that time, that Antony Hampel was nowhere near the Balencea building when Phoebe died? And that there’s no evidence of any of his involvement in her death?’
‘It looks that way, yes,’ Lorne replied.
The fob entry log shows Ant returning at 6.05pm. However, there is no evidence anywhere about the actual time Phoebe died.
I returned my attention to Galbally’s questions. He was putting the proposition to Lorne (not disrespectfully, he assured him) that Phoebe’s behaviour during her final days had been pretty strange. Drinking to excess, taking prescription drugs, playing chicken with cars, not going to work, staying out late, writing bizarre Post-it notes, and sending the ‘tomato soup’ message to all her family.
Lorne pointed out there was only evidence from a couple of other witnesses to all this, but he was losing his confidence. Galbally is expert at hammering home fact after fact to discredit a witness.
‘She was seeking assistance from her psychologist, phoning the Alfred helpline, waking up with hangovers, throwing her mobile phone away. So this is the narrative of a sad, tragic girl who was unable to have much hope of saving herself.’
Not a question, I thought. He’s playing to a jury. Barristers can’t help themselves.
Lorne started to reply, but Ms Siemensma jumped in with an objection, saying that Lorne couldn’t give evidence on a lot of these issues. The Coroner agreed, and Galbally withdrew his so-called questions.
But he came straight back with another. ‘She was a mess that week?’
‘She appears to have been troubled, yes.’
Galbally then introduced the kind, caring Ant Hampel, looking after Phoebe. ‘During that four-day period prior to her death, I suggest to you that the evidence suggests — and I’m asking for your agreement or disagreement — that Antony Hampel had been nothing but caring, considerate, patient, and protective?’
Ms Siemensma objected again, saying Lorne wasn’t in Melbourne during those four days. The Coroner upheld her objection.
Galbally said, ‘You can offer no motive for him wanting to harm her?’
‘No,’ Lorne replied.
At that, Galbally sat down.
*
Next up was Rob O’Neill, representing the Chief Commissioner of Police. O’Neill was a great contrast to Galbally. Short and a bit cuddly, he always looked as if he’d left home in a hurry, giving his hair a finger-comb on the way. He was much younger than the other barristers, with only six years at the bar, and his inexperience showed in his deference to the Coroner and his slightly hesitant way of putting his questions and submissions. But he’s not silly, I wrote in my notes, and he has a hard job, protecting a less than adequate police investigation, even though the Coroner has said he’s not looking at that aspect. This is a high-profile case, and the police don’t need bad publicity.
He put it to Lorne that he’d expressed the view that the Homicide Squad should have taken a stronger interest in Phoebe’s death than they did.
Lorne just said, ‘Mmm.’
O’Neill broke Lorne’s dissatisfaction into a couple of areas: first, the non-seizure of the CCTV and its hard drive on the night, and second, that Phoebe’s body wasn’t checked to help identify the time of death.
Lorne said, ‘I’d go further than time of death, more as to whether she was in fact dead.’
The Coroner asked if there was anything else.
‘The seizure of the computers from the apartment,’ O’Neill said. There were two computers in the apartment — the iMac in the study, which was shared by Ant and Phoebe, and Phoebe’s laptop, which hadn’t been used since October.
O’Neill told the Coroner that the computers were now in the possession of the police IT division, which was trying to extract historical data.
Bit late now, three years on, I wrote.
O’Neill was saying, ‘Your primary interest in the content of the computer would be if it provides information as to Phoebe’s time of death and also potentially her state of mind if she happened to write up any thoughts during the day of 2 December?’
‘Yes.’
‘You’d agree that it’s completely speculative whether or not she did?’
‘Of course,’ Lorne replied. But I knew the family thought that erasing all of Phoebe’s emails was more than speculative.
‘Turning to your concerns about the body, you’ve mentioned the issue of whether she was still alive at the time the body was discovered. But you’d have to agree that any value in examining the body would only be if there were a scientific basis for using any observations made at the time to establish a time of death. Do you agree?’
‘No, I take it further than that. Just to establish whether she was still alive. She could easily have been comatose.’
‘But if she was dead,’ O’Neill persisted, ‘the only value in conducting a contemporaneous examination is to determine the time of death.’
I had to write fast to keep up with him. Some barristers have a roundabout way of getting to the end of a sentence.
The Coroner pointed out that he thought Lorne’s concern related to the fact that the paramedics hadn’t been permitted access to Phoebe and therefore couldn’t make the assessments they’d normally be expected to make as medical professionals.
O’Neill moved on to the CCTV. He said that although CCTV wasn’t taken on the night, police had asked Eric Giammario to obtain it and he’d done so.
Ms Siemensma wasn’t
so certain about that. She told His Honour that she thought that Eric had organised the download and paid for it. ‘I think he was uncertain as to whether he was asked to or whether he volunteered to. I think that was left a little bit up in the air,’ she said.
‘Take it from me,’ O’Neill responded, ‘that there is an invoice which shows that Sielox attended on 3 December and began the process of downloading the software. Therefore, either Mr Giammario or the police or the two in combination have organised that by the day after her death.’
Inquests differ from other court proceedings in many ways, and from time to time barristers can chip in with their own contributions.
‘So while it still might have been preferable if it had been obtained the night before, steps were taken reasonably promptly to attempt to obtain that footage and that footage was supplied by 3 and 4 December?’
‘Yes, my understanding was that that was taken by Mr Giammario, though,’ Lorne stuck to his guns on this.
Ms Siemensma didn’t think it fair that Lorne had to answer questions on this issue, because of his lack of personal knowledge.
The Coroner seemed to agree. He asked O’Neill if there was going to be evidence from a police witness about this issue, and O’Neill said Detective Butterworth would be giving evidence later. It seemed we were to wait and hear what he had to say.
O’Neill turned back to Lorne.
‘You have made the statement that the investigation was handed over by the Homicide Squad to Mr Payne on 7 December, is that right?’
Lorne agreed, then O’Neill asked him to look at handwritten notes made by Detective Clanchy on 10 December about handing over the case.
But how did that square with the family being told on 7 December that the official decision was suicide?
Again, Ms Siemensma objected, saying that Butterworth was the man to ask.
O’Neill got a bit antsy about Ms Siemensma’s objection. He said that the Coroner had accepted in evidence Lorne’s criticisms of the Homicide Squad, which he alleged had erred in placing the handover too early. The Coroner replied, ‘I think these are matters that if raised should be asked of the police.’