Deceased
Thorvald Anthony Nielsen
Demographics
29y, male
Coroner
Coroner Jenkin
Date of death
2017-04-13
Finding date
2020-06-15
Cause of death
multiple gunshot wounds
AI-generated summary
A 29-year-old male died from multiple gunshot wounds inflicted by police Tactical Response Group (TRG) officers during a failed arrest operation. The deceased had stolen firearms, was suspected of being armed, and had expressed suicidal ideation. Police used his partner (an unarmed civilian) to set up a meeting at a tennis club without adequately informing her of the armament risk. When officers attempted a 'snatch arrest', the deceased retrieved a loaded shotgun from a vehicle, pointed it at officers, and was shot five times. The coroner found the use of force justified but was critical of: (1) failing to brief the civilian partner adequately about firearm risks, preventing informed consent; (2) inadequate planning of the operation due to time constraints; (3) insufficient consideration of bystander safety, including the civilian partner who was positioned near armed officers during the incident; and (4) failure to record key operational decisions. The coroner made recommendations for improved medical kit availability and development of snatch arrest standard operating procedures prioritizing bystander safety.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
[2020] WACOR 10 JURISDICTION : CORONER'S COURT OF WESTERN AUSTRALIA ACT : CORONERS ACT 1996 CORONER : Michael Andrew Gliddon Jenkin, Coroner HEARD : 16-18 March 2020
DELIVERED : 15 JUNE 2020 FILE NO/S : CORC 514 of 2017
DECEASED : NIELSEN, THORVALD ANTHONY Catchwords: Nil Legislation: Nil Counsel Appearing: Counsel Assisting : Kathryn HESLOP Counsel : Joshua Berson Case(s) referred to in decision(s): Nil
Coroners Act 1996 (Section 26(1))
AMENDED RECORD OF INVESTIGATION INTO DEATH I, Michael Andrew Gliddon Jenkin, Coroner, having investigated the death of Thorvald Anthony NIELSEN with an inquest held at Perth Coroner’s Court, Central Law Courts, Court 85, 501 Hay Street, Perth, on 16 - 18 March 2020, find that the identity of the deceased person was Thorvald Anthony NIELSEN and that death occurred on 13 April 2017 in a carpark adjacent to the Darlington Tennis Club, Darlington, from multiple gunshot wounds in the following circumstances: Table of Contents Page 2.
Page 3.
Thorvald Anthony Nielsen (Mr Nielsen) died on 13 April 2017 in the carpark adjacent to the Darlington Tennis Club (the Tennis Club) from multiple gunshot wounds. He was 29 years of age. Mr Nielsen was shot by officers from the Police Tactical Response Group (TRG) in circumstances where he was armed and the attending officers reasonably believed that their lives were at imminent risk.
Pursuant to the Coroners Act 1996 (WA) (the Coroners Act), Mr Nielsen’s death was a “reportable death”.1 Further, because his death may have been caused by a member of the Western Australia Police Force (the Police), a coronial inquest was mandatory.2
Members of Mr Nielsen’s family attended on the first day of the inquest and the following witnesses gave oral evidence: i. Detective Senior Constable L Psaila-Borrie (Investigating officer); ii. Senior Sergeant N Winstone (Police negotiator); iii. Inspector D Hooper (TRG officer); iv. Acting Superintendent D Heise (TRG officer); v. Tactical Operator 78 (TO78, former TRG officer); vi. Tactical Operator 19 (TO19); vii. Tactical Operator 6 (TO6); viii. Tactical Operator 17 (TO17); ix. Tactical Operator 38 (TO38, former TRG officer); x. Superintendent D Leekong (Officer-in-charge, TRG); and xi. Mr M Downey (former investigator, Internal Affairs Unit).
1 Section 3, Coroners Act 1996 (WA) 2 Section 22(1)(b), Coroners Act 1996 (WA) 3 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler Page 4.
(a) there be no reporting or publication of the name, picture or any other identifying features of the witnesses referred to as Tactical Operator 33, Tactical Operator 42, Tactical Operator 17, Tactical Operator 19 and Tactical Operator 6;
(b) there be no reporting or publication of details about the decision making criteria, response times, resourcing and any other operational aspects of the WA Police Force Tactical Response Group;
(c) there be no reporting or publication of the methodologies, response times or resourcing of the WA Police Force Tactical Response Group Negotiators Unit; and
(d) there be no reporting or publication of the sections of the Police Manual that are applicable to the WA Police Force Tactical Response Group, as a specialist unit.
Suppression Order No.2 (made on 16 March 2020) there be no reporting or publication of the details of any of the versions of the WA Police Force Emergency Driving Policy and Guidelines, including, but not limited to any cap on the speed at which officers are authorised to drive.
Suppression Order No.3 (made on 17 March 2020) there be no reporting or publication of the sections of the policies referred to in Exhibit 1, Volume 1, Tab 38 of the Brief.
Suppression Order No.4 (made on 18 March 2020) there be no reporting or publication of the details of any of the versions of the WA Police Force Firearms Policy, being
Suppression Order No.5 (made on 30 April 2020) there be no reporting or publication of any portion of the Police Tactical Group Operations Manual produced by the Australia-New Zealand Counter Terrorism Committee (version April 2016).
Page 5.
[2020] WACOR 10 MR NIELSEN Background
Mr Nielsen was born in Perth on 1 April 19884 and had two children from a previous relationship. In September 2016, Mr Nielsen and a woman he had known for a number of years (who I will refer to as Person A), began a relationship. At the time, Mr Nielsen was living on the streets, and Person A allowed him to move in with her.5 Person A played a central role in Mr Nielsen’s death because, as I will explain, she was an unwitting accomplice of the Police.
Person A says that Mr Nielsen was a very private person and kept his life with his friends very separate from his life with her. He was very secretive with others and she had only met one of his friends.
Person A said Mr Nielsen told her about his upbringing so that she could understand some of his “quirks”, and he had limited contact with his own family.6
Person A’s mother said she felt comfortable in his presence and had never seen Mr Nielsen use illicit drugs. She said she was aware he had been homeless and had previously associated with “some bad people” but was happy Mr Nielsen was seeing her daughter. She thought he was “good” for Person A and made her happy.7
[2020] WACOR 10 Criminal History
Before his death, Mr Nielsen had accumulated 21 convictions for offences including: driving under the influence of alcohol, breach of violence restraining order, driving without a licence, possession of methylamphetamine, dangerous driving whilst evading police and unlawful possession of a firearm.9
On 7 December 2016, in the Northam Magistrates Court, Mr Nielsen was sentenced to two concurrent terms of imprisonment of six months and one day, each suspended for 12 months. The terms were imposed for the offences of dangerous driving to evade police and driving without a licence whilst under suspension.10 Issues relating to mental state11
Person A and her mother both felt that Mr Nielsen had mental health issues, although he does not appear to have been formally diagnosed.12 During the period 11 - 13 April 2017, in separate conversations he had with Person A, Person A’s mother and Person B, Mr Nielsen said that he would kill himself rather than surrender to police.13,14,15
Mr Nielsen was reportedly estranged from members of his family and was the subject of a violence restraining order protecting his father that superseded an order from 2007, which had protected his mother.
By the time of his death, Mr Nielsen had clearly formed the fixed, seemingly unshakeable belief that because he was the subject of two suspended imprisonment orders, if he was arrested by police, he would be sent to prison for seven to eight years.
9 Exhibit 1, Vol. 1, Tab 1A, Criminal and Traffic Offence History 10 Exhibit 1, Vol. 1, Tab 1A, Criminal and Traffic Offence History 11 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, pp17-19 12 Exhibit 1, Vol. 1, Tab 10, Report - Det. Sgt M Downey (Internal Affairs Unit), p107 13 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras10 & 62-63 14 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 59-61, 72-78 & 84-85 15 Exhibit 1, Vol. 1, Tab 14, Statement - Person B, paras 10, 46, 52, 58-64, 106-109 & 108-125 Page 7.
[2020] WACOR 10 EVENTS LEADING TO MR NIELSEN’S DEATH Background
Officer Taylor conducted inquiries aimed at locating him, including visiting addresses in Northam.16
On 12 April 2017, the investigation into the offences allegedly committed by Mr Nielsen was handed over to Detective Senior Constable Psaila-Borrie (Officer Psaila-Borrie), from Midland Detectives, who became the IO.17,18,19
For the reasons discussed below, police formed the view that Mr Nielsen was an armed and dangerous offender, who was a risk to members of the public and needed to be apprehended. Several attempts were made to apprehend Mr Nielsen, culminating in a plan to arrest him when he attended a meeting with Person A at the Tennis Club.
Police were aware that Mr Nielsen’s mental state was deteriorating and that he had said he would not surrender to police, and would take his life rather than do so. Perhaps the first link in the chain of events that culminated in Mr Nielsen’s death was his alleged theft of firearms.
Theft of Firearms
A power tool had been used to cut open the gun safe and the firearms were identified as a .22 calibre Ruger semi-automatic rifle and a 12gauge Beretta pump-action shotgun (the Firearms).20,21 16 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, pp3-4 17 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p4 18 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 2-13 19 ts 16.03.20 Psaila-Borrie, pp11-13 20 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p3 Page 8.
Mr Nielsen was also aware of the location of the Firearms and was subsequently seen by another associate, in possession of a rifle and a shotgun, which matched the description of the Firearms.22,23
Police interaction with Mr Nielsen prior to 13 April 2017
In the days prior to 12 April 2017, Mr Nielsen was suspected of being the driver in two instances of failing to stop when called upon by police.27 At about 1.30 pm 12 April 2017, Officer Psaila-Borrie was conducting enquiries at a house in Mount Helena. On leaving the property, he saw a vehicle thought to have been used by Mr Nielsen and after activating the police car’s lights and sirens, he gave chase.28,29,30
The driver of the vehicle failed to stop, and police deployed a “stinger” device31 which incapacitated the car’s front left hand tyre.
The driver continued at speed, with no regard for the safety of other road users and eventually abandoned the car and fled into bushland on foot. A wallet containing various cards in Mr Nielsen’s name was found in the car.32,33 21 Exhibit 1, Vol. 1, Tab 17A, Incident Report (03 Jan 17) 22 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p4 and see also: ts 17.03.20 (TO78), p141 23 Exhibit 1, Vol. 1, Tab 9, Email from FCC A Biggs to Det. Sgt. Fowler, (28.04.17) 24 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p4 25 Exhibit 1, Vol. 1, Tab 17A, Incident Report (03.01.17) 26 Exhibit 1, Vol. 1, Tab 30, Report - Sen. Const. J Inskip, p5 27 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p3 28 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Snr. Const. L Psaila-Borrie, paras 21-40 29 ts 16.03.20 (Psaila-Borrie), pp14-16 30 Exhibit 1, Vol. 1, Tab 17B - Incident Reports (03.04.17 & 12.04.17) 31 A device designed to stop a vehicle by puncturing its tyres 32 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 41-57 Page 9.
[2020] WACOR 10 Interactions with Mr Nielsen - 11 April 2017
On the morning of 11 April 2017, Mr Nielsen cooked breakfast for Person A before she left for work. During the day, Officer Taylor went to Person A’s workplace and told her that police wanted to speak to Mr Nielsen about some alleged traffic offences.34
Person A was shocked to learn that Mr Nielsen was wanted by police, as she had no prior knowledge of him being involved in any illegal activities. She called her mother who drove from Augusta to Northam to be with her.35
Mr Nielsen contacted Person A and asked her to pack his things and meet him in Mundaring. She finished work at 3.00 pm and went home to pack Mr Nielsen’s things. She had arranged to meet her mother at Mundaring, but when she arrived there, Mr Nielsen asked her to head to The Lakes Roadhouse and meet him on a gravel road.36
They spoke to him for several hours and tried, unsuccessfully, to convince him to surrender to police. During that night, Person A and Mr Nielsen exchanged numerous text messages. He said he was cold and tired and she urged him to return home.37,38 Interactions with Mr Nielsen - 12 April 2017
[2020] WACOR 10 Interactions with Mr Nielsen - 13 April 2017
Mr Nielsen called Person A at her work at about 8.00 am on 13 April 2017. He sounded very flat and he repeated his claim that police were trying to kill him. He said he was going to kill himself because he could not face going to jail. Person A rang her mother and said they needed to let police know what he had said.40
After speaking with her daughter, Person A’s mother rang the Mundaring Police Station to speak to Officer Taylor. As he was unavailable, she spoke to Sergeant McEvoy (Officer McEvoy), and passed on the information she had been given about Mr Nielsen’s mental state. She told Officer McEvoy that she was worried about Mr Nielsen’s mental health and that she and her daughter wanted him safe, before giving Officer McEvoy Mr Nielsen’s mobile number.41
Mr Nielsen rang Person A’s mother at 8.18 am. He said he was sorry and asked for forgiveness. She pleaded with him to surrender, but he refused. He sent her a text message at 11.17 am, saying the police were trying to frame him for “so much”. She asked him to call her back, but he refused and sent her a text saying: “Can’t no time. It’s OK, I am not scared anymore, just sad”.42 As a result of her interactions with him, Person A’s mother became convinced that Mr Nielsen was a serious self-harm risk and would kill himself, rather than allow police to arrest him.43
Person A rang Officer McEvoy for an update and shortly afterwards, Mr Nielsen called her again to say “goodbye”. Person A told him not to do anything, but was angry with him for the way he was acting.
She called Officer McEvoy back to update her and sometime after 1.30 pm, Officers McEvoy and Thompson came to her workplace.
They said the TRG and the Dog Squad were now involved in looking for Mr Nielsen and that his mental health was the “most important thing”. They asked Person A if she thought Mr Nielsen had a gun, and she said she had no idea and that she had never seen him with a gun before.44 40 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 62-64 41 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 63-70 42 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 72-76 & 82-84 43 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 77-78 & 85 44 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 69-79 Page 11.
She was very concerned for his welfare and responded: “Me too”. He replied saying he was convinced police were “watching and listening to everything”.45
At 3.00 pm, Officers McEvoy and Thompson returned to Person A’s workplace and asked her to help them pinpoint Mr Nielsen’s location.46 Person A went to the station, and says she heard police speaking about Mr Nielsen in a derogatory fashion. She was unhappy about this and began to wonder if she had done the right thing by agreeing to help.47
Meanwhile, at the request of Officer Psaila-Borrie, Person A’s mother attended the Mundaring Police Station. At about 3.25 pm, she had a brief phone conversation with Mr Nielsen in the presence of Senior Sergeant Winstone (Officer Winstone), a TRG negotiator. Mr Nielsen said he was tired and wanted to go somewhere to sleep, but he refused to disclose his location.48,49,50
Person A’s mother was concerned that Mr Nielsen would discover that she and Person A were helping police find him and asked Officer Winstone: “You’re not going to shoot him are you?”. The reply was that the safety of herself and Person A were the foremost priority and that police did not want to shoot Mr Nielsen. Officer Winstone told her that police would arrange to have Mr Nielsen’s mental health assessed once he was in custody.51
While all this was happening, Mr Nielsen was in the company of Person B as she drove him around the Mundaring area. At one stage, Mr Nielsen told Person B that he intended to take his life. She became very emotional and told him she would kill herself too.
Eventually, at about 4.30 pm, Person B dropped Mr Nielsen off at the home of a man I will refer to as Person C.52,53 45 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 91-93 46 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 82 47 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 85 48 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 103-121 49 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p4 50 Exhibit 1, Vol. 1, Tab 18, Statement - Sen. Sgt. N Winstone, paras 16-19 and ts 16.03.20 (Winstone), p51 51 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 125-128 52 Exhibit 1, Vol. 1, Tab 14, Statement - Person B, paras 86-135 Page 12.
On her way to the roadhouse, Mr Nielsen called and said he was tired and wanted to sleep. She suggested that they meet up and Mr Nielsen agreed. He suggested a meeting at the Tennis Club at 5.00 pm.
Person A arrived at The Lakes Roadhouse at about 4.20 pm and spoke to two police officers who met her there. She sent text messages to Mr Nielsen saying she was running late and he told her not to worry and that he would be at the Tennis Club at 5.20 pm.54,55,56
Police were very reluctant for Person A to attend the meeting with Mr Nielsen. They were concerned about having a non-police person involved in the apprehension of Mr Nielsen. However, Person A made it clear she was determined to attend the meeting and said she wanted to speak with Mr Nielsen once he was in custody.57,58
Police received information that Mr Nielsen was moving in the direction of the Tennis Club and TRG officers regrouped to that location in anticipation of Mr Nielsen’s arrival.59 Person A had agreed to wait a short time to enable police to move into position, but became impatient and left The Lakes Roadhouse and drove to the Tennis Club to meet Mr Nielsen.60,61 53 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 54 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 123-124 & 129 55 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 and ts 16.03.20 (Psaila-Borrie), p33 56 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 87-90 & 94-96 57 Exhibit 1, Vol. 1, Tab 15, Statement - Det. Sen. Const. T Duncan, paras 98-100 & 107-109 58 Exhibit 1, Vol. 1, Tab 35, Statement - Det. FC. Const. K Higgs, paras 88-90 59 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 60 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 97-100 & 101-102 61 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 133-135 Page 13.
[2020] WACOR 10 Contact with Person C
Meanwhile, sometime around 4.30 pm on 13 April 2017, Person C arrived home from work to find Mr Nielsen waiting for him. Person C lived in Boya with his dog, and knew Mr Nielsen from school, but didn’t have much contact with him.62
Person C noticed that Mr Nielsen was carrying a long object that was wrapped in a sheet or similar. When they went inside the house, Mr Nielsen told Person C that the object was a shotgun and that police were “after him”. Mr Nielsen asked for a lift and Person C refused saying he “didn’t want to have anything to do with it”. Mr Nielsen went outside for a few minutes before coming back inside and again asking for a lift. Eventually, Person C reluctantly agreed to give him a lift because he wanted to get rid of Mr Nielsen as quickly as possible.63
Before they left the house, Mr Nielsen said that he would use the shotgun on himself if he was apprehended by police, but at no stage did he say that he intended to shoot police. At one point, Mr Nielsen turned on his mobile to make a call and told Person C that he had to turn it on and off because the police were tracking him.64
Before they got into Person C’s black Ford Falcon sedan (the Ford), Person C asked Mr Nielsen if the shotgun was loaded because he intended to take his dog with him in the Ford. Mr Nielsen assured Person C that the shotgun was not loaded and they set off for the Tennis Club with Person C driving.65
The shotgun, which was still wrapped in a sheet, was placed between the right-hand edge of the front passenger seat and the centre console of the Ford.66 As it happens, the shotgun was subsequently found to have been loaded.67 62 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, para 3-14 63 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, para 19 & 22-36 & 38-45 64 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, para 58-63 & 81-85 65 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, para 101-102 66 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, para 104 67 Exhibit 1, Vol. 1, Tab 30, Report - Sen. Const. J Inskip, pp5-6 & 30 Page 14.
[2020] WACOR 10 TRG OPERATIONS - 13 APRIL 2017 General
The TRG provides specialist skills and capabilities beyond the scope and expertise of general duty police. In the present case, the TRG were asked to assist in locating Mr Nielsen, who was regarded as a risk to the public.68 Search of Pine Plantation
At about 12.30 pm on 13 April 2017, TO38 called his superior officer, Inspector Hooper (Officer Hooper), about a request the TRG had received to assist Mundaring Police to locate Mr Nielsen by searching a pine plantation, where it was believed he might be.69
Officer Hooper was told that Mr Nielsen had been involved in several police pursuits and was believed to be in possession of a stolen rifle and shotgun. Officer Hooper was also told that Mr Nielsen was possibly on foot, but may have access to a vehicle and that he had telephoned his partner to say “goodbye”.70
Officer Hooper approved the plan to search for Mr Nielsen and the TRG set off for the pine plantation. However, subsequent information suggested that Mr Nielsen was no longer in the area and the planned search was abandoned. It was decided that TRG officers would remain at the Mundaring Police Station until 3.30 pm, to see if any further information emerged about Mr Nielsen’s whereabouts.71
Officer Hooper said he was “highly motivated” to apprehend Mr Nielsen because he considered him to be a significant risk to the community, to himself and to any police officer who might inadvertently stop Mr Nielsen’s car. Just before TRG officers returned to their home base, further information about Mr Nielsen was received.72 68 Exhibit 1, Vol. 1, Tab 39, Statement - Supt. D Leekong, paras 2-3 69 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, para 15 and ts 16.03.20 (Hooper), p68 70 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, para 22 and ts 16.03.20 (Hooper), pp68-69 71 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 29-37 and ts 16.03.20 (Hooper), pp69-70 72 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 38 & 47 and ts 16.03.20 (Hooper), pp71-73 Page 15.
The information was forwarded to the TRG with a further request for help on the basis that it was feared that Mr Nielsen was armed.73 Cordon and Call
At 3.22 pm, further information suggested that Mr Nielsen was now at an abandoned house in Darlington and police asked officers from the TRG for assistance. TO78 proposed a “cordon and call” operation at the abandoned house, which involved establishing a secure perimeter around the property and calling for any occupants inside to surrender.74,75,76,77
Officer Hooper approved the cordon and call operation and the plan was enacted at about 5.05 pm.78 As it turned out, Mr Nielsen was not at the house and TRG officers returned to the Mundaring Police Station, in case they were needed further. Meanwhile, Officer PsailaBorrie had sent officers to The Lakes Roadhouse in case Mr Nielsen met Person A and her mother there. He received advice that Person A was planning to meet Mr Nielsen at the Tennis Club at 5.00 pm.79,80,81,82,83,84,85 The snatch arrest
Once police became aware that Mr Nielsen and Person A had agreed to meet at the Tennis Club, it was decided to apprehend Mr Nielsen when he arrived by means of an opportunistic surprise apprehension, or “snatch arrest”.86,87,88 73 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p4 74 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 75 Exhibit 1, Vol.1, Tab 18, Statement - Sen. Sgt. N Winstone, paras 20-28 and ts 16.03.20 (Winstone), p54 76 Exhibit 1, Vol. 1, Tab 24, Statement - TO78, paras 75-77 and ts 17.03.20 (TO78), pp124-125 77 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 124 & 129 78 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 47-59 and ts 16.03.20 (Hooper), pp77-78 79 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 80 Exhibit 1, Vol. 1, Tab 18, Statement - Sen. Sgt. N Winstone, para 28 81 Exhibit 1, Vol. 1, Tab 20, Statement - TO6, paras 37-38 and ts 17.03.20 (TO6), pp194-196 82 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 24-37 and ts 18.03.20 (TO38), pp251-253 83 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 25-35 and ts 17.03.20 (TO19), pp156-157 84 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 37-38 and ts 17.03.20 (TO17), pp223-226 85 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 136-141 & 145-149 86 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p10 87 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 150-155 88 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, para 17 Page 16.
Police were aware that Mr Nielsen and Person A had previously met at the Tennis Club. On those occasions, Mr Nielsen had arrived on foot and been unarmed.89,90,91,92,93,94 However, several of the TRG officers said they had no information about how Mr Nielsen would arrive at the Tennis Courts95 and another said he was not told about the possibility that Mr Nielsen may have access to a vehicle.96
With respect to snatch arrests, in the vast majority of cases the offender surrenders, even on those rare occasions when the offender is armed. The reason seems to be the element of surprise and the fact that the offender becomes overwhelmed by the sight of TRG officers.97
Typically, the plan for a snatch arrest is devised by a more junior TRG officer in written form and is accompanied by a written risk assessment. The written plan and risk assessment is then approved by more senior TRG officers before the plan is enacted.
In this case, there was limited time between TRG officers deploying to the Tennis Club and the expected arrival of Mr Nielsen and Person A.
In those circumstances, it was not feasible to draft a written plan or risk assessment for the snatch arrest.98,99,100,101
None of these approvals were recorded by the individual officers or in the TRG running sheet.102,103,104,105 89 Exhibit 1, Vol. 1, Tab 8, Report - Det. A/Sen. Sgt. L Fowler, p5 90 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 38-41 91 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 37-40 92 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 48-49 93 Exhibit 1, Vol. 1, Tab 24, Statement - TO78, paras 79-82 94 Exhibit 1, Vol. 1, Tab 15, Statement - Det. Sen. Const. T Duncan, para 76 95 Exhibit 1, Vol. 1, Tab 20, Statement - TO6, paras 42 and see also: ts 18.03.20 (TO38), p254 96 ts 17.03.20 (TO19), p159 97 ts 17.03.20 (TO78), p243 and ts 17.03.20 (TO6), p215 98 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 75-76 and ts 16.03.20 (Hooper), p78 99 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p86 100 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 41 and ts 17.03.20 (TO19), p157-158 101 Exhibit 1, Vol. 1, Tab 24, Statement - TO78, paras 83 102 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 75-76 and ts 16.03.20 (Hooper), p78 103 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p86 104 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 41 and ts 17.03.20 (TO19), pp157-158 105 Exhibit 1, Vol. 1, Tab 24, Statement - TO78, paras 83 and ts 17.03.20 (TO78), p128 Page 17.
Although he was “highly motivated” to apprehend Mr Nielsen,106 Officer Hooper says he only approved the snatch arrest plan on the basis that: Mr Nielsen was on foot; was not carrying a firearm; it was daylight; and Mr Nielsen was not able to escape in Person A’s car.107,108,109
TO78, who was TO38’s immediate superior, says he told TO38 about the conditions imposed on the snatch arrest by Officer Hooper.110 TO38 was in charge of the TRG team carrying out the snatch arrest.
Following Mr Nielsen’s death, TO38 told Detective Sergeant Downey (Mr Downey), who was then an investigator with the Internal Affairs Unit (IAU), that he was unaware of any of these conditions.111,112 Obviously, the absence of any written record of relevant decisions relating to the snatch arrest means that I am unable to resolve this apparent miscommunication.
Further, it was expected that Mr Nielsen would be on foot and therefore, probably unarmed. However, Officer Psaila-Borrie and TO19 both agreed that once it was realised that Mr Nielsen was in a vehicle being driven by another person, the risk associated with the snatch arrest increased quite significantly.113,114
The plan was never to apprehend Mr Nielsen when he was in a motor vehicle, a strategy which is inherently more dangerous.115,116 106 See also: ts 17.03.20 (TO78), pp126-127 107 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, pp100-101 108 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 71-72 109 ts 16.03.20 (Hooper), pp79-81 & 85-86 110 ts 17.03.20 (TO78), p133 111 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p102 112 ts 18.03.20 (TO38), p264 113 ts 16.03.20 (Psaila-Borrie), pp34-36 114 ts 17.03.20 (TO19), p160 115 ts 16.03.20 (Hooper), pp79-82 116 See also: ts 17.03.20 (TO78), pp131-132 Page 18.
However, instead of surrendering, Mr Nielsen got back into the Ford.
There was no formal plan to deal with this scenario, and instead, Officer Hooper’s expectation was that TO38 “would make the appropriate decisions at that stage”.117
As far as TO38 was concerned, the snatch arrest was to proceed regardless of the manner in which Mr Nielsen arrived.118 At the inquest, TO38 said that from his perspective, it was important that the snatch arrest take place when Mr Nielsen was on foot. TO38 said that if Mr Nielsen arrived in a vehicle and didn’t get out, TRG officers would have waited for him to exit the vehicle, because they wanted to avoid: “a pursuit with an armed offender”.119
Although there have been situations in which TRG operations have been aborted once initiated, the evidence in this case was that when the snatch arrest had been initiated, there was no possibility it being aborted. This was because of the risk to TRG officers and others of doing so.120,121
As for Person A’s involvement, I agree with the assessment of Acting Superintendent Heise (Officer Heise) who conducted a review of the TRG’s efforts to apprehend Mr Nielsen. Officer Heise said that in his view, Person A should have been briefed as to what to expect during the snatch arrest by the TRG negotiator.122,123
As Person A’s mother pointed out, neither she nor Person A had any “appreciation of what the TRG really do or how high of a risky situation that Person A was put in”. Person A’s mother says that had she known Mr Nielsen was likely to be armed, she would have talked Person A out of meeting him.124 117 ts 16.03.20 (Hooper), pp80-81 118 Exhibit 1, Vol. 1, Tab 24, Statement - TO38, paras 87 and ts 18.03.20 (TO38), p265 119 ts 18.03.20 (TO38), p254 120 ts 16.03.20 (Hooper), pp87-89 121 See also: ts 17.03.20 (TO19), p182 and ts 17.03.20 (TO78), pp139-141 122 Exhibit 1, Vol. 1, Tab 36, Statement - Insp. D Heise, paras 41 & 46-48 and ts 16.03.20 (Heise), pp102-103 123 Exhibit 1, Vol. 1, Tab 36, Report - Insp. D Heise, p5 124 Exhibit 1, Vol. 1, Tab 12, Statement - Person A’s mother, paras 170-171 Page 19.
[2020] WACOR 10 Mr Nielsen and Person A arrive at the Tennis Club
In preparation for the snatch arrest, TRG officers arrived at the Tennis Club and concealed themselves from view. Once in position, they waited for the order to initiate the snatch arrest.125,126,127,128,129
At about 5.27 pm, Officer Winstone, who had changed into plain clothes, saw a person she believed was Mr Nielsen in the front passenger seat of a dark coloured Ford Falcon. She called TO78 to tell him what she had seen.130,131 For his part, TO78 denies that he was told by Officer Winstone that she believed Mr Nielsen was in the car. Instead, he says she told him that the person in the car “looked familiar”.132
In any event, the Ford drove away from the Tennis Club, but shortly afterwards, Officer Psaila-Borrie saw it heading back. Meanwhile, at about 5.29 pm, Person A arrived at the Tennis Club in a red RAV 4.
She parked her car next to the Ford and walked towards Mr Nielsen, who had exited from the Ford.133,134,135,136 The snatch arrest plan is enacted
TO6 and TO17 each tried unsuccessfully to smash the Ford’s front passenger window with their weapons.143,144,145,146
Meanwhile, TO38 took up a position about two metres from the rear passenger door of the Ford. TO38 pointed his TASER at the vehicle and ordered Mr Nielsen to get on the ground. TO19, who was at the rear driver’s side door of the Ford, also drew his TASER.147,148
At about this time, Person A was standing at the rear of her RAV 4 in the vicinity of the TRG officers. She then moved so that she was between TO6 and TO17.149,150
Officer Winstone, who was observing events from a distance, feared that Person A would “get in the middle of the officers doing their job” or posed “a risk to the officers” and at great personal risk, she ran towards Person A to apprehend her.151
It appears that TO6 opened the Ford’s front passenger door, although he does not recall doing so.152 TO17 saw Mr Nielsen reach into the front passenger foot well and pick up an object that appeared to be wrapped in a sheet. As Mr Nielsen unwrapped the object, TO17, TO38 and TO6 realised it was a pump action shotgun and they all shouted words to the effect of “gun, gun, gun, drop the gun”.153,154,155 139 Exhibit 1, Vol. 1, Tab 20A, Statement - TO6, paras 3-5 140 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 6-67 and ts 18.03.20 (TO38), p257 141 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 84 and ts 17.03.20 (TO19), pp167-171 142 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 80-81 and ts 17.03.20 (TO17), pp228-229 143 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 111-114 144 Exhibit 1, Vol. 1, Tab 20, Statement - TO6, paras 71-83 and ts 17.03.20 (TO6), pp201-203 145 Exhibit 1, Vol. 1, Tab 20A, Statement - TO6, paras 3-5 146 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 80-81 and ts 17.03.20 (TO17), pp230-231 147 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 6-67 and ts 18.03.20 (TO38), p257 148 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 84 and ts 17.03.20 (TO19), p173 149 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, para 91 and ts 17.03.20 (TO17), pp233-234, 236 & 241-242 150 ts 17.03.20 (TO19), pp172-173, although TO19 thought this happened after shots were fired 151 Exhibit 1, Vol. 1, Tab 18, Statement - Sen. Sgt. N Winstone, paras 47-51 and ts 16.03.20 (Winstone), pp56-58 152 ts 17.03.20 (TO6), pp212-213 153 Exhibit 1, Vol. 1, Tab 20, Statement - TO6, paras 86-94 and ts 17.03.20 (TO6), p205 154 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 68-72 and ts 18.03.20 (TO38), pp258-259 155 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 80-81 & 84-89 and ts 17.03.20 (TO17), pp232-233 Page 21.
[2020] WACOR 10 Mr Nielsen is shot
TRG officers repeatedly yelled “Police open the door” and “Put the gun down” but there was no response from Mr Nielsen. At about this time, TO19 opened the Ford’s rear driver’s side door and saw Mr Nielsen holding a shotgun in both hands. As Mr Nielsen placed the muzzle of the shotgun under his chin as if to shoot himself, TO19 shouted “TASER, TASER, TASER” and fired his TASER at Mr Nielsen.156,157,158,159,160
The TASER is an electrical weapon that fires two small barbed electrodes attached to wires that puncture the skin of the offender.
The electrodes deliver an electric current that is designed to cause “neuromuscular incapacitation” and thereby subdue the person.161 In this case, one of TASER’s electrical probes hit Mr Nielsen’s right cheek, but the other probe missed. As a result, despite the TASER being activated for three consecutive cycles, Mr Nielsen was not subdued.162
As TO6 moved to his right and prepared to fire a second round, TO38 fired one round from his pistol through the Ford’s rear passenger window and the front passenger seat, and it struck Mr Nielsen in the neck. Mr Nielsen continued to move the shotgun around and TO17 fired one round from his rifle into Mr Nielsen’s abdomen.170,171,172
Before he fired his weapon at Mr Nielsen, TO17 considered other force options. He said that given the circumstances, he did not consider that either a baton, OC spray or TASER would have effectively subdued Mr Nielsen and thereby remove the imminent threat he posed.173 Meanwhile, TO38 observed that Mr Nielsen was still pointing the shotgun in the direction of TO6 and he fired a second round from his pistol through the Ford’s rear passenger window, striking Mr Nielsen in the shoulder.174,175
TO19 heard the gunshots but was unsure whether Mr Nielsen had discharged the shotgun. TO19 saw that after the initial gunshots, Mr Nielsen had maintained his grip on the shotgun, which was still pointing it at TO6 and TO17. TRG officers continued to order Mr Nielsen to drop his weapon, but he continued to move it around.
TO19 fired one round from his pistol and struck Mr Nielsen in the back of the neck. At this point, Mr Nielsen slumped forward and the shotgun lowered into his lap.176,177,178
Given that Person A was not moved to safety until after TRG officers had fired five rounds at Mr Nielsen, it follows that she was in their vicinity as those shots were fired. Person A could hardly have been in a more perilous situation. When Mr Nielsen pointed a loaded shotgun in the direction of TO6 and TO17, Person A was in their general vicinity. Any risk to those TRG officers was also a risk to her.182,183
Person A had previously expressed concern about the fact that when police arrested Mr Nielsen, he would assume that she had assisted them. She was told that in order to give the impression that she was as surprised as Mr Nielsen, when the arrest was made, she should shout and scream. However, at the only briefing Person A received, she was given very limited information. Officer Duncan told her not to allow Mr Nielsen to get into her car or take her keys and not to approach any of the police while they were apprehending Mr Nielsen. She was also told that the plan was to apprehend Mr Nielsen before he reached her car.184,185,186,187,188
Critically, other than being told not to approach the officers involved in arresting Mr Nielsen, Person A was not given any detailed instructions as to what to expect during the snatch arrest, nor what to do once the snatch arrest had been initiated. Person A’s location during the snatch arrest does not appear to have been considered in any detail, or at all and there was no formal plan to ensure her safety.
Although Officer Heise considered the snatch arrest had been carried out in accordance with TRG training and procedures, he was critical of the fact that Person A had not been appropriately briefed to ensure she was better “controlled” during the snatch arrest.189,190 At the inquest, TO6, TO17, TO38 and TO78 all expressed the view that Person A should have been briefed on what to expect once the snatch arrest had been initiated.191,192,193,194 181 Email: Person A to Ms K Heslop (12.03.20) 182 Exhibit 1, Vol. 1, Tab 18, Statement - Sen. Sgt. N Winstone, paras 47-59 and ts 16.03.20 (Winstone), p57-58 183 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 91 and ts 17.03.20 (TO17), p236 184 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p87 185 Exhibit 1, Vol. 1, Tab 35, Statement - Det. FC. Const. K Higgs, paras 86-87 186 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 99-100 187 Exhibit 1, Vol. 1, Tab 15, Statement - Det. Sen. Const. T Duncan, paras 101-103 & 105 188 Exhibit 1, Vol. 1, Tab 17, Statement - Officer Psaila-Borrie, para 168-175 and ts 16.03.20 (Psaila-Borrie), p42 189 Exhibit 1, Vol. 1, Tab 36, Statement - Insp. D Heise, paras 41 & 46-48 & ts 16.03.20 (Heise), pp102-103 190 See also: ts 16.03.20 (TO17), p241 191 ts 17.03.20 (TO6), pp213-214 Page 24.
[2020] WACOR 10 The aftermath of Mr Nielsen’s shooting
After Mr Nielsen had been shot by TRG officers, TO19 contacted TO78 and requested an ambulance urgently. TO17 removed the shotgun from the Ford and secured it as Mr Nielsen was removed from the vehicle and given first aid, including CPR.195,196,197
Ambulance officers arrived on the scene at 5.45 pm and took over resuscitation efforts. Initially, there was some electrical activity in Mr Nielsen’s heart, but as resuscitation efforts continued, this electrical activity ceased.198,199 Mr Nielsen was taken to St John of God Hospital Midland, but despite the efforts of hospital staff, he could not be revived. Mr Nielsen was declared deceased at 6.15 pm on 13 April 2017.200
Whilst providing first aid to Mr Nielsen, TRG 17 had tried to locate a medic pack, which contained essential first aid equipment, but was unsuccessful. Contrary to established procedures, it transpired that none of the TRG vehicles at the Tennis Club was carrying one.
Instead, TRG officers used their own personal first aid kits.201
I am concerned that none of the TRG vehicles at the Tennis Club was carrying a medic pack. I accept that there are a limited number of medic packs and that for operational reasons, they are not always carried in every TRG vehicle.202
Nevertheless, in this very serious situation, no medic packs were available at the scene at all. Instead, TRG officers were obliged to use their personal first aid kits, which are smaller and not as wellequipped.203,204,205 192 ts 17.03.20 (TO17), p240 193 ts 18.03.20 (TO38), pp265-266 194 ts 17.03.20 (TO78), pp138 & 143-144 195 Exhibit 1, Vol. 1, Tab 21, Statement - TO38, paras 81-93 and ts 18.03.20 (TO38), p262 196 Exhibit 1, Vol. 1, Tab 22, Statement - TO19, paras 126-128 and see also: ts 17.03.20 (TO78), p137 197 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 124-125 and ts 17.03.20 (TO17), pp239-240 198 Exhibit 1, Vol. 1, Tabs 27 & 27A, SJA patient care record & Statement - Mr S Menz, paras 32-70 199 Exhibit 1, Vol. 1, Tab 27B, Statement - Ms C Sainsbury, paras 10-89 200 Exhibit 1, Vol. 1, Tab 28, St John of God Public Hospital - Medical Notes & Death in hospital form 201 ts 17.03.20 (TO17), p240 and see also: ts 17.03.20 (TO6), p209 & ts 17.03.20 (TO19), p162 202 ts 17.03.20 (TO19), pp209-210 203 Exhibit 1, Vol. 1, Tab 20, Statement - TO6, paras 114 and ts 17.03.20 (TO6), pp209-210 204 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, paras 129-132 and ts 17.03.20 (TO17), p240 Page 25.
Officer Hooper said he expected that medic packs would be available, and noted that the designated medic for a TRG operation would “normally carry the medic pack”.206
After Mr Nielsen and the shotgun had been removed from the Ford, Person C, whose dog was sitting on his lap, was removed from the driver’s seat of the Ford and handcuffed. Person C thought he was complying with instructions from TO33 to get out of the vehicle and was therefore surprised when he was hit on the head five or six times by a “hard metal object”.207
For his part, TO33 says he was concerned that Person C may have been armed when he ordered him to get out of the Ford. TO33 says that because Person C was not responding to his commands, he “lightly tapped” him to the side of the head with his handgun.208
It is reasonable to assume that as he had just witnessed Mr Nielsen being shot by TRG officers, Person C would have been understandably dazed and disorientated. For that reason, his recollection of events may not be entirely accurate.
However, it is noteworthy that Officer Psaila-Borrie says that after Person C had been removed from the Ford and arrested, Person C told him he had been hit on the head “a couple of times”.209,210 An ambulance officer noted that Person C had a large lump on the top of his head and Person C was taken to hospital by ambulance.211,212
Person C’s comments to Officer Psaila-Borrie and the ambulance officer’s observations, tend to support Person C’s version of events.
Notwithstanding the extremely dangerous situation that confronted TRG officers during the snatch arrest, it would be most unfortunate if Person C was in fact struck in the head in the manner he recalls.
205 See also: ts 17.03.20 (TO19), pp162-163 206 ts 16.03.20 (Hooper), p83 207 Exhibit 1, Vol. 1, Tab 19, Statement - Person C, paras 143-145 & 153-160 208 Exhibit 1, Vol. 1, Tab 26, Statement - TO33, paras 79-87 209 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 198-206 210 ts 16.03.20 (Psaila-Borrie), p37 211 Exhibit 1, Vol. 1, Tab 17, Statement - Det. Sen. Const. L Psaila-Borrie, paras 198-206 212 ts 16.03.20 (Psaila-Borrie), p37 Page 26.
[2020] WACOR 10 USE OF FORCE Criminal Code
The Criminal Code authorises the Police to use force while effecting an arrest.213 However, in any case where the use of force by a police officer is lawful, the use of more force than is justified is unlawful.214
A harmful act, including the killing of another, is lawful if the act is done in self-defence. An act is done by a person in self-defence if:
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.215 Police Manual
Provisions of the Police Manual deal with the circumstances in which force may be used by police officers. Force options available to general duty police officers include: the baton, OC spray,216 the TASER and a pistol. TRG officers also have additional firearms options.217
After carefully considering the evidence, I am satisfied that when TO6, TO17, TO19 and TO38 discharged their firearms and shot Mr Nielsen, they each had reasonable grounds to believe there was an imminent risk to their own lives, and the lives of their colleagues. At the relevant time, Mr Nielsen had control of a pump-action shotgun which he was pointing at them. It was reasonable for TRG officers to assume that it was loaded, as in fact it turned out to be. I am further satisfied that the TRG officers considered using less lethal force options, and did in fact deploy a TASER, which unfortunately did not subdue Mr Nielsen.218 213 Criminal Code, section 231 214 Criminal Code, section 260 215 Criminal Code, section 248 216 Oleoresin capsicum is the oil derived from the stem of peppers, hence the colloquial term “pepper spray” 217 ts 17.03.20 (TO19), pp161-162rare 218 Exhibit 1, Vol. 1, Tab 23, Statement - TO17, para 113-117 and ts 17.03.20 (TO17), pp220-221 Page 27.
The Police Manual also deals with the circumstances in which force options, including firearms, may be used by police officers. As noted, I made suppression orders in relation to the police policies that were tendered into evidence, including policies relating to the use of force and the use of firearms. I therefore do not intend to set out the relevant provisions of those policies here.
However, having carefully considered all of the available evidence, I am satisfied that the use of lethal force by each of TRG officers, namely: TO6, TO17, TO19 and TO38, was justified by the circumstances and was in accordance with the relevant provisions of the Criminal Code and the Police Manual. In this respect, I agree with the conclusion reached by Mr Downey in his IAU report into the conduct of the police officers involved in the attempted arrest of Mr Nielsen.219 219 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p110 Page 28.
[2020] WACOR 10 CAUSE AND MANNER OF DEATH Post Mortem Examination
They found the following injuries:220 i. one gunshot wound to the back of Mr Nielsen’s neck with associated spinal cord damage;221 ii. two gunshot wounds to the back of his left shoulder, with associated damage to his chest organs; and iii. two “pass-through” wounds with an entry and exit wound to his left thigh and anterior torso respectively.
There was evidence of resuscitation efforts, but they found no significant underlying disease was found.222
Toxicological analysis found amphetamine and methylamphetamine in Mr Nielsen’s system and a urine alcohol level of 0.01%. The testing did not detect cannabinoids or other common drugs.223 Cause of Death
At the conclusion of the post mortem examination, Dr Kueppers and Dr Vagaja expressed the opinion that the cause of Mr Nielsen’s death was multiple gunshot wounds. I accept and adopt that conclusion.
Taking account of all of the circumstances in this case, I find that the manner of Mr Nielsen’s death was homicide by way of self-defence.
220 Exhibit 1, Vol. 1, Tab 4, Report - Supplementary post mortem, p1 221 See also: Exhibit 1, Vol. 1, Tab 6, Report - Neuropathology, confirming traumatic spinal cord damage 222 Exhibit 1, Vol. 1, Tab 4, Report - Post mortem, p9 223 Exhibit 1, Vol. 1, Tab 5, Report - Toxicology: Final (16.05.17) Page 29.
[2020] WACOR 10 ISSUES ADDRESSED BY THE INTERNAL AFFAIRS UNIT Background
Recording of key events and decisions
[2020] WACOR 10 c. there was no record of the plan relating to the snatch arrest, including the decision to allow Person A and unarmed police officers to be within the vicinity of TRG Officers as they carried out the snatch arrest.
In his IAU report, Mr Downey, found that Officer Hooper, TO78 and Officer Psaila-Borrie had all failed to comply with relevant police policies by not making a record of key decisions. In each case, the officers were the subject of formal sanctions and were counselled.227,228
Specifically, Officer Hooper failed to record his approvals of the cordon and call and snatch arrest operations. He also failed to record the conditions that he placed on the snatch arrest operation (i.e.: that the arrest would occur in daylight, that Mr Nielsen was to be on foot and unarmed and that he was not to drive away in Person A’s car), and he failed to record any of his discussions with TO78. Officer Hooper acknowledged that this had been a poor decision on his part and he confirmed that he now used a recording device to keep an audio record of key events and decisions.229,230
For his part, TO78 failed to record his conversations with Officer Hooper or TO38 concerning the conditions that applied to the snatch arrest. He also made no record of his decision to allow Officer Winstone and another unarmed officer to deploy to the Tennis Club.231
Finally, Officer Psaila-Borrie failed to record his decision to approve the snatch arrest or the conditions which had been placed on the operation. Critically, he also did not record the reasoning behind his decision not to tell Person A that it was possible that Mr Nielsen would be armed when he attended the Tennis Club.232 227 Exhibit 1, Vol. 1, Tab 36, Statement - Insp. D Heise, para 49 & ts 16.03.20 (Heise), pp102-103 228 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey 229 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, pp100-101 & ts 16.03.20 (Hooper), p84 230 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, para 83 231 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p102 232 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p103 Page 31.
[2020] WACOR 10 Not telling Person A that Mr Nielsen might be armed
At the relevant time, Officer Psaila-Borrie was the IO with respect to the offences allegedly committed by Mr Nielsen, and was therefore in charge of the operation to locate him.
Officer Psaila-Borrie made a conscious decision not to tell Person A that Mr Nielsen might be armed when she met him at the Tennis Club, in circumstances where police had credible information that in fact, Mr Nielsen might be armed. Police also suspected that Mr Nielsen may have access to a vehicle, which would have made the transport and carriage of a firearm not only possible, but more likely.233,234
Officer Psaila-Borrie says that although he regarded Mr Nielsen as a risk to himself and the general public, he did not tell Person A that Mr Nielsen might be armed when she met him. His reasoning was that the snatch arrest was a low risk strategy and that in his view, Mr Nielsen did not pose a risk to Person A. Further, the TRG were on hand and would protect Person A whilst they arrested Mr Nielsen.235
The evidence at the inquest was that the use of third parties (like Person A), to assist in apprehending offenders was rare.236 In light of that fact, I would have expected that the assessment of the risk to Person A, would have been wide-ranging and comprehensive. It was not.
Clearly, Person A was unarmed, was not wearing body armour and had not received the specialist training that TRG officers receive which allows them to react predictably in dangerous situations.237,238 The risk assessment that was carried out with respect to Person A, seems to have been confined to the perceived risk to her from Mr Nielsen. That risk was regarded as low because Mr Nielsen was in a relationship with her and she was unaware of his criminal activities.
233 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p110 234 ts 16.03.20 (Psaila-Borrie), p45 235 ts 16.03.20 (Psaila-Borrie), p45 236 See for example: ts 17.03.20 (TO38), p265 237 ts 16.03.20 (Hooper), p75; ts 16.03.20 (Heise), pp104-105 and ts 17.03.20 (TO6), pp211-212 238 ts 17.03.20 (TO6), pp211-212 and ts 17.03.20 (TO19), pp188-189 Page 32.
What seems to have been missed is the fact that Mr Nielsen’s mental state was known to be deteriorating and therefore, his actions could not necessarily be predicted with any degree of certainty.239,240 Another key issue that does not seem to have been adequately factored into the assessment of the risk to Person A, was how she would react, and where she would be, once the snatch arrest had been initiated.241
Person A’s decision to assist police by agreeing to meet with Mr Nielsen was taken in the absence of a crucial piece of information, namely that Mr Nielsen might to be armed.242 Mr Downey’s IAU report contains the following passage: Psaila-Borrie considered that Nielsen being at large posed a greater danger to the general public than the [snatch arrest] would pose to Person A. For that reason, he deliberately didn’t tell Person A or Person A’s mother about Nielsen possibly being in possession of firearms. He didn’t want to risk Person A not meeting with Nielsen and therefore Nielsen not being apprehended as a result.243
When asked about this passage at the inquest, Mr Downey said this was the conclusion he had reached from having interviewed Officer Psaila-Borrie on several occasions. Mr Downey considered that consciously or subconsciously, Officer Psaila-Borrie did not want to risk the possibility that Mr Nielsen might not be apprehended because Officer Psaila-Borrie considered that Mr Nielsen posed a grave risk to the public.244
For his part, Officer Psaila-Borrie categorically denied that the concern that Person A might not agree to meet with Mr Nielsen, was any part of his reason for not telling her that he might be in possession of firearms. Officer Psaila-Borrie said he did not tell Person A that Mr Nielsen might be armed because he did not consider she was in any danger and that as a member of the public, she did not need to know.245 239 ts 16.03.20 (Psaila-Borrie), pp33 & 46 240 Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, para 76 and ts 16.03.20 (Hooper), p85 241 ts 16.03.20 (Heise), p105 242 ts 16.03.20 (Psaila-Borrie), p44 243 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p104 244 ts 18.03.20 (Downey), pp296-297, 300 & 315 245 ts 16.03.20 (Psaila-Borrie), pp44-45 and Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p24 Page 33.
Further, Mr Nielsen had kept her sheltered from his activities and because he was meeting her in a public place on foot, he was unlikely to be armed.246 However, at the inquest, Officer Psaila-Borrie agreed that he had no contact with Mr Nielsen and that any assessment he made about the risk Mr Nielsen posed to Person A was based on information given to him by others.247
At the inquest, Officer Psaila-Borrie properly conceded that Person A was not able to make an informed decision about whether to proceed with meeting Mr Nielsen, because she was not told about the very real prospect that he might be in possession of firearms. Officer PsailaBorrie also conceded that with the benefit of hindsight, he should have given Person A this information and further, that he would now be more likely to do so if he was ever faced with a similar situation again.248
Officer Hooper said that when he approved the snatch arrest plan, he was unaware the Person A had not been told that Mr Nielsen might be in possession of firearms. He said that he assumed she was already aware of this possibility because Mr Nielsen said he was not going to be taken alive by police and some of his friends had seen firearms in the back of his car. Officer Hooper also said he was told that Mr Nielsen was not considered to be a threat to Person A.249
At the inquest Officer Hooper,250 Officer Heise251, TO6,252 TO17,253 TO38,254 TO78,255 and Mr Downey256 all agreed that Person A should have been told that police had good reason to believe that Mr Nielsen might be in possession of firearms. In my view, this is unsurprising.
246 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p110 and ts 16.03.20 (Psaila-Borrie), p44 247 ts 16.03.20 (Psaila-Borrie), p45 248 ts 16.03.20 (Psaila-Borrie), p34 & pp45-46 249 ts 16.03.20 (Hooper), pp76-77 and Exhibit 1, Vol. 1, Tab 33, Statement - Insp. D Hooper, paras 76 250 ts 16.03.20 (Hooper), pp76-77 251 ts 16.03.20 (Heise), p105 252 ts 17.03.20 (TO6), p212 253 ts 17.03.20 (TO6), pp229-230 254 ts 18.03.20 (TO38), p253 255 ts 17.03.20 (TO78), p129 256 ts 18.03.20 (Downey), pp297-298 Page 34.
With respect to the “managerial issues” found to have been sustained by the IAU investigation, Officer Hooper and TO78 were served with an official reprimand (i.e.: a managerial notice) and Officer PsailaBorrie was served with a less serious “letter of corrective action”.257
The allegation that Officer Psaila-Borrie had acted in a manner likely to bring discredit to police was not sustained on the basis that because of his grave concerns for the general public, his decision not to tell Person A that Mr Nielsen might be armed was “subjective and defensible”.258
At the inquest, Mr Downey further explained, that the reason this allegation was not sustained was that Officer Psaila-Borrie had not acted dishonestly in deciding to conceal information about the fact that Mr Nielsen was likely to be in possession of firearms.259
Although I am critical of the decision to conceal relevant information from Person A, it is pleasing that Officer Psaila-Borrie said that he would be less likely to do so again if he was confronted with a similar situation.
In my view, the position is very straightforward. In circumstances where the Police intend to use a third party to assist in their investigations, that third party should be informed of all relevant risks.
The third party is entitled to make their own assessment of the risk of assisting the Police and it would be quite inappropriate for them not to be given sufficient information to allow an informed decision to be made.
257 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p111 and ts 18.03.20 (Downey), p306 258 Exhibit 1, Vol. 1, Tab 10, IAU Report - Det. Sgt. M Downey, p104 259 ts 18.03.20 (Downey), p310 Page 35.
[2020] WACOR 10 ENHANCEMENTS Standard Operating Procedures
The SOPs will help guide the training of TRG officers and will assist them with the efficient discharge of their duties. It is intended that the SOPs will contain a section dealing with snatch arrests.260
Officer Leekong agreed that the benefit of SOPs is that all members of the TRG would be able to familiarise themselves with current approaches to training and procedures. The SOPs would also ensure that TRG operations are conducted in accordance with existing legislative and policy requirements.261
Officer Leekong said that TRG officers would have been assisted in dealing with the attempted apprehension of Mr Nielsen, had the TRG had SOPs dealing with snatch arrests. He felt that the development of the SOPs would take some months and that the TRG would require additional resources, including additional staff, for this purpose.
Officer Leekong said that the additional resources would be required on an ongoing basis to manage the vast amount of equipment owned by the TRG.262 Additional Negotiators
[2020] WACOR 10 COMMENTS ON POLICE ACTIONS General
I accept that police are often called on to react to rapidly changing situations without necessarily having all of the available facts at their disposal. I am also mindful of the phenomenon known as “hindsight bias”. This is the common tendency to perceive events that have occurred, as having been more predictable than they actually were before the events took place.264
Nevertheless, there are lessons to be learnt from Mr Nielsen’s death, especially in relation to what Person A should have been told prior to her meeting with Mr Nielsen, and the adequacy of the snatch arrest plan.
Actions of General Police
Although it seems clear that Person A’s primary concern was for Mr Nielsen’s deteriorating mental state, had she been told Mr Nielsen might be armed, she would almost certainly have refused to meet him.
Person A said as much in her statement to the Police at the time, and in a recent email to counsel assisting, Ms Kathryn Heslop.265,266
There was no good reason to conceal from her the fact that police suspected that Mr Nielsen was in possession of firearms. The fact that if she had been told Mr Nielsen might be armed she would almost certainly have refused to cooperate with police is neither here nor there.
264 See for example: https://www.britannica.com/topic/hindsight-bias 265 Exhibit 1, Vol. 1, Tab 12, Statement - Person A, paras 149-151 266 Email: Person A to Ms K Heslop (12.03.20) Page 37.
I accept that situations where third parties are used by police to assist in the apprehension of an alleged offender are rare. Nevertheless, in my view, no other person should ever be placed in the position that Person A was placed in.
Regardless of the experience of the officers making the assessment that Person A was unlikely to be at risk from Mr Nielsen, the simple point is that Person A should have been given the opportunity to make her own assessment of that risk. After all, she was the one most directly affected, she was the one who was in a relationship with Mr Nielsen and she was the one who had spoken with him in the days before the meeting.
In this case, it is unclear how any valid assessment of the risk to Person A could have reasonably have been made, in circumstances where Mr Nielsen’s mental state was known to be deteriorating. In any event, the possible risk Mr Nielsen posed to Person A was only part of the equation.
It was known that Person A would be in the vicinity of armed TRG officers as they attempted to apprehend Mr Nielsen. She was unarmed and was given no detailed information about what to do once the snatch arrest had been initiated. The possibility that she might have been injured by the actions of persons other than Mr Nielsen does not appear to have been considered in any detail, or at all.
If, after being properly advised of all relevant risks, Person A had insisted on cooperating with the Police, then a cogent plan to ensure her safety should have been developed. Further, she should have been given a detailed briefing as to what to do before, during and after the snatch arrest operation. If there was insufficient time to achieve all of this before the initiation of the snatch arrest, then the operation should have been aborted.
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[2020] WACOR 10 Actions of TRG Tactical Operators
In my view, the cordon and call operation conducted by TRG officers was a sensible and logical strategy, based on the information available at the time. Had Mr Nielsen been located at the abandoned house in Darlington, the outcome in this case may well have had a different trajectory.
As to the snatch arrest plan, I accept that police were keen to arrest Mr Nielsen because of the risk he posed to the community. Part of that risk was that he was thought to be armed and it was known that his mental state was deteriorating. He had also shown a proclivity for recklessness during previous police pursuits, and it was feared that a further pursuit might put the lives of innocent people in danger.
I therefore accept that on its face, the plan to apprehend Mr Nielsen by means of a snatch arrest was appropriate. The critical question is whether there was sufficient time to plan the operation and to properly consider all relevant risks.
I accept that there will be situations where, for operational reasons, it will not be feasible to produce a written plan and risk assessment.
However, in those circumstances, the minimum requirement is surely that there is a clear plan, that a sound risk assessment is conducted, and that the plan is appropriately approved. In my view, the snatch arrest plan does not appear to have comprehensively considered the risks to persons other than those directly involved in the snatch arrest (i.e.: Mr Nielsen and the TRG officers).
As I have pointed out, it was also known that Person A would be in the vicinity of TRG officers as they interacted with Mr Nielsen during the snatch arrest. This is presumably why she was told not to approach police involved in Mr Nielsen’s arrest.
Further, on the basis of good intelligence, police strongly suspected that Mr Nielsen might be armed and they knew he was in a vehicle prior to the snatch arrest being initiated. In my view, all of these factors should have suggested a more cautious approach.
As noted, the original plan was to apprehend Mr Nielsen some distance from Person A’s car. However, as TO78 pointed out: the scenario that did play out was contrary to…what the intelligence would have suggested”.270
It seems clear that Officer Winstone acted on her own initiative when she ran towards Person A in order to apprehend her. However, as commendable as Officer Winstone’s bravery clearly was, it is notable that her actions were primarily motivated by her concern for the safety of TRG officers.271,272
In any event, because of the distances involved, Officer Winstone was not able to reach Person A until after TRG officers had fired five rounds into Mr Nielsen and subdued him. I am gravely concerned that Person A was able to get so close to armed TRG officers during the snatch arrest operation.
There was at least possibility that a stray round might have ricocheted and proceeded on an unpredictable and unintended trajectory. This could have placed those in the vicinity, including Person A, Person C, TRG officers, other police and members of the public, at risk of being seriously injured or even killed.
270 ts 17.03.20 (TO78), p129 271 Exhibit 1, Vol. 1, Tab 18, Statement - Sen. Sgt. N Winstone, paras 47-51 272 ts 16.03.20 (Winstone), p56-57 Page 40.
I accept the evidence of TO6 and TO19 that the possibility of a round ending up somewhere it wasn’t intended was low. However, both TO6, TO19 and Officer Heise all agreed that the risk of a ricochet could not be entirely discounted. For that reason alone, additional time ought to have been allocated to planning the snatch arrest so that a more fulsome consideration of all relevant risks could have been undertaken.273,274,275
Whilst TO78 considered that there was sufficient time to address all of the potential risks and evaluate contingencies, he acknowledged that given more time, a better plan could have been devised.276 In my view, even if it was determined that all relevant risks had been appropriately considered, there should have been a formal plan to ensure Person A’s safety. In this case, that appears to have been left largely to chance.
Although Person A does not appear to have sustained any physical injuries as a result of the snatch arrest operation, she was in close proximity to her partner when he was shot dead by TRG officers.
I cannot begin to fathom the potential psychological harm she was exposed to in those circumstances.
Avoiding inadvertent disclosure of operational issues
At my request, on 28 May 2020, Ms Heslop, forwarded a draft copy of this finding to Mr Berson to enable the Police to confirm that my description of the facts did not inadvertently reveal any issues protected by the suppression orders I made and which are set out in paragraph five of this finding.277
By email dated 5 June 2020, Mr Berson raised one minor issue, which I have since addressed. By email dated 15 June 2020, Mr Berson confirmed that the Police had no further concerns.278 273 ts 16.03.20 (Heise), pp105-106 274 ts 16.03.20 (TO19), pp150-152, 181 & 187 275 ts 17.03.20 (TO6), p192 276 ts 17.03.20 (TO78), pp128 & 145 and see also: ts 17.03.20 (TO19), pp157-158 277 See: Email to Coroner M Jenkin from Ms K Heslop (02.06.20) 278 Emails to Ms K Heslop from Mr J Berson (05.06.20) & (15.06.20) Page 41.
Recommendation No.2 As a matter of urgency, the TRG should consider developing standard operating procedures (SOP’s) with respect to snatch arrest operations and these SOP’s should include a requirement to consider the safety of any person assisting the Police, as well as any bystanders. To the extent that the TRG’s current resources are insufficient to enable the timely development of SOP’s in relation to snatch arrests, those resources should be made available to the TRG immediately.
There were good reasons why the Police wished to bring Mr Nielsen into custody. It was suspected he was armed and his mental state was deteriorating. He posed a risk to himself and because of his unpredictability, he posed a risk to members of the public.
The attempts made by police to apprehend Mr Nielsen, culminated in a fateful meeting between him and his partner, Person A, at the Darlington Tennis Club. Whilst a hastily arranged plan was enacted to arrest Mr Nielsen, Person A was not told that police strongly suspected that Mr Nielsen may be in possession of firearms.
Had Person A been given this information, it is unlikely that she would have agreed to attend the meeting. In any event, Mr Nielsen arrived in a car and was armed with what turned out to be a loaded shotgun. He was given numerous opportunities to put the weapon down, but he refused to do so. Initially, he pointed the shotgun at himself, but he then began pointing it at TRG officers, who by that stage had surrounded his vehicle. At that point, by his own actions, Mr Nielsen had placed his life in grave danger.
TRG officers shot Mr Nielsen a total of five times, in circumstances where they reasonably believed that their lives and those of their colleagues were in mortal danger. I do not criticise any of them for acting in accordance with their instincts and training.
However, in my view, the failure to tell Person A that Mr Nielsen might be armed when he arrived at their meeting is indefensible. I am also concerned that there was insufficient time to properly plan the snatch arrest and that as a consequence, insufficient regard was had to all potential risks. Person A should never have been allowed to get so close to armed TRG officers. While the risk of a stray round striking someone other than Mr Nielsen may have been low, it was not zero. I do not consider that there was sufficient consideration of that potential risk.
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MAG Jenkin Coroner 31 August 2020 Page 44.
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