Inquest into the death of Cheryl Anthea Braedon (1999) NTMC044Cause of death

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Inquest into the death of Cheryl Anthea Braedon (1999) NTMC044
Cause of death

CITATION:       Inquest into the death of Cheryl Anthea Braedon (1999) NTMC044

TITLE OF COURT:       CORONERS COURT

JURISDICTION:       Coroners Act

FILE NO(s):       9819073

DELIVERED ON:       26 October 1999

#DATE 26:10:1999

DELIVERED AT:       Alice Springs

HEARING DATE(s):       1, 2, 3 September 1999

JUDGMENT OF:       Mr Greg Cavanagh SM

CATCHWORDS:

Cause of death, possibility of crimes being committed in connection with the death, referral to the Commissioner of Police and the Director of Public Prosecutions.

Coroners Act (NT) s. 35.

Ex parte Minister of Justice: re Inglis (1965) NSWR 1598 at 1604 considered.

Order: formal findings made.

REPRESENTATION:

Counsel:       

Assisting Coroner       Mr J Tippett

Family       Mr D Bamber

Witnesses       Mr R Goldflam

Solicitors:

       Assisting Coroner Miss Lyn McDade

       Family Central Australian Aboriginal Legal Aid Service

       Witnesses Northern Territory Legal Aid Commission

Judgement category classification:       C

Judgement ID Number:       NTMC044

THE NORTHERN TERRITORY OF AUSTRALIA

CORONERS' ACT

In the Matter of an Inquest into the death of

CHERYL ANTHEA BRAEDON

FINDINGS

THE NATURE AND SCOPE OF THE INQUEST

Shortly after 7.52 pm on Tuesday 8 September 1998 the decomposing body of a person later identified to be Cheryl Anthea Braedon ("the deceased") was located in the Todd River at Alice Springs by police officers Acting Senior Sergeant Geoffrey John Sullivan and Constable Neville Ian Muller. The deceased was 21 years old and was an Aboriginal female, born on 29 December 1976 at Alice Springs in the Northern Territory. On Friday 4 September 1998 at 1.45 pm the deceased was reported missing to police by her natural mother Ms Connie Braedon.

Section 14(1) of the Coroners Act (the "Act") reads:

       "A Coroner has jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death".

The phrase "reportable death" is defined in Section 12 of the Act to include:

a)       a death where

i)       the body of a deceased person is in the Territory

ii)       the death occurred in the Territory

iii)       the cause of death occurred in the Territory

b)       a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury.

The circumstances of the death of the deceased fall within the requirements of the Act that the death be a reportable death.

The Inquest is held as a matter of discretion pursuant to the provisions of Section 15(2) of the Act. Section 34 and 35 of the Act set out the limits of the jurisdiction of the Coroner as follows:

Section 34 CORONERS' FINDINGS AND COMMENTS

(1)       A coroner investigating

(a)       a death shall, if possible, find

(i)       the identity of the deceased person;

(ii)       the time and place of death;

(iii)       the cause of death;

(iv)       the particulars needed to register the death under the Births, Deaths and Marriages Registration Act;

(v)       any relevant circumstances concerning the death.

(2)       A coroner may comment on a matter, including public health or safety of the administration of justice, connected with the death........being investigated.

(3)       A coroner shall not, in an investigation, include in a finding or comment, a statement that a person is or may be guilty of an offence.

(4)       A coroner shall ensure that the particulars referred to in subsection (1)(a)(iv) are provided to the Registrar, within the meaning of the Births, Deaths and Marriages Registration Act.

Section 35       CORONERS' REPORT

(1)       A coroner may report to the Attorney General on a death.........investigated by the coroner.

(2)       A coroner may make recommendations to the Attorney General on a matter, including public health or safety or the administration of justice connected with a death.........investigated by the coroner.

(3)       A coroner shall report to the Commissioner of Police and the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act if the coroner believes that a crime may have been committed in connection with a death.......investigated by the coroner.

The public Inquest commenced at Alice Springs Courthouse on Wednesday 1 September 1999 and concluded on Friday 3 September 1999. Counsel assisting the coroner was Mr John Tippett. The family of the deceased appeared and was represented by Mr David Bamber of the Central Australian Legal Aid Service. Mr Russell Goldflam of the Northern Territory Legal Aid Commission sought leave to appear on behalf of or Mr Ali Satour and Mr Shaun Cummings. Leave was granted for him to appear pursuant to the provisions of Section 40(2) of the Act.

Initially, identification of the deceased was made on a preliminary basis by Detective Acting Sergeant Vincent Kelly. The body of the person discovered in the Todd River was observed to exhibit the same personal characteristics of the deceased. It was established that the person was a female of Aboriginal decent whose body shape and size indicated she was obese. On 11 September 1998 Senior Community Dentist Mr Bruce Simmons concluded from an examination of dental records held by the Territory Health Services that the dental characteristics of the deceased matched the records of Cheryl Braedon, date of birth 29 December 1976. This identification was subsequently verified by DNA analysis conducted by NT Police Forensic biologist, Ms Carmen Eckoff. All other circumstances surrounding the discovery of the body and which relate to the disappearance of Cheryl Braedon support the finding.

A provisional cause of death was not determined by the Forensic Pathologist Dr Terence Sinton due to the fact that the cause of death remained under investigation until the results of a toxicology report were obtained. The Autopsy report (received in evidence) sets out the Cause of Death as postural Asphyxia with the other significant conditions contributing to death being acute alcohol toxicity and morbid obesity.

CAUSE OF DEATH

In some cases it is important to distinguish the terminal cause from the real, actual or underlying cause of death. In the decision of Ex parte Minister of Justice: re Inglis (1965) NSWR 1598 at 1604 McClemens J observed:

        "I think where the Coroners' Act speaks of the cause of death it means the real cause of death, namely the disease, injury or complication, not the mode of dying, eg. heart failure, asphyxia asthenia".

In that case, pneumonia was found not to have been the substantive cause of death but one of a gamut of unpleasant results from the deceased having been poisoned. (See also general discussion of the topic by Ian Freckelton Causation in Coronial Law (1997) 4 JLM (Journal of Law and Medicine) 289.

In this case after exhaustive examination at autopsy Forensic Pathologist Dr Sinton reported that there was no evidence of bony or soft tissue injury such as to support a conclusion that Ms Braedon had met with any foul play or violence shortly or immediately prior to death. He found a large quantity of sand material towards the back of her throat and throughout the mouth; this would have occurred from her attempting to breathe with her face close to this material. He found no evidence of violence, bruising, injury, defensive wounds or trauma. He found little or nothing to suggest she died during unwilling or non-consensual activity (sexual or otherwise). Indeed, it was his opinion that she died possibly during an act of consensual sex.

In evidence Dr Sinton explained that although the body was in a state of decomposition he would have expected to find any such injuries if they had been present. His conclusion was based on the fact that the condition of the body had not deteriorated to a point at which signs of injury might be lost. He examined "every inch" of the surface of the body as well as dissecting back the skin and examining the underlying muscle structure. He said that the tissues were in place. He explained that bruising was essentially bleeding into the subcutaneous tissues and that he would have expected to find evidence of such bleeding if there had been injury. The same findings applied to the head and scalp and to the external genitalia. He found that anus to be intact with faeces present in the rectum.

Dr Sinton told the Inquest that he had been a pathologist since 1982 and a Forensic Pathologist since 1994. At the time of conducting the autopsy he was Pathologist-in-Charge of the Forensic Pathology Unit at the Royal Darwin Hospital. Nothing was put to him in cross-examination that gave him cause to reconsider or alter his opinion as to the mechanism of death or his conclusion as to cause of death.

The pathologist's evidence did not eliminate all avenues of speculation as to the possibility of some minor superficial injury being caused to, or the application of some force to, the body of the deceased prior to death. However, the suggestions that were put to Dr Sinton in that regard did not establish themselves in the course of evidence above the level of mere speculation. My obligation is to arrive at findings on the balance of probabilities which necessitates the abandonment of consideration of any factor that does not have any support on the evidence. For that reason alone the various speculative matters put to the Forensic Pathologist during cross-examination by Counsel for the family are not set out in these reasons.

The mode of dying in this case was asphyxia. The complications that brought about the mode of death were the posture of the deceased at the time of death, a condition of acute alcohol toxicity and the condition of morbid obesity suffered by the deceased. The cause of death was therefore a combination of factors.

Dr Sinton gave evidence as follows (page 153/154 of transcript):

"MR TIPPETT:       You found that there were two in particular, contributing factors the postural asphyxia which I'll come back to in just a moment so we can have that described in more detail. Acute alcohol toxicity and morbid obesity?---Yes sir.

Now can I go back to firstly, the postural asphyxia and can you tell us, how its that going to bring about a person that may be lying on the ground, face in the sand. How could that possibly bring about that person's death?---I guess postural asphyxia can be defined as obstruction or lack of respiratory movement because of an abnormal position of the body, rather than standing up. It's another abnormal position of the body. In the case of postural asphyxia in this case, this woman being as obese as she was face down, the mechanical changes of that extra weight on the upper half of the trunk, plus the fact that there would be some pressure of abdominal contents against the diaphragm would have effectively stopped the respiratory muscles moving, and thereby quite severely restricting the air movements in and out of her lungs. Those muscles are the ones on the ribs and on the diaphragm, and both of these would have been basically clamped down quite tightly just from a change in position.

Now if we add to that alcohol toxicity, how is that a contributing factor if we've got a situation where a person - this person's build and weight actually by lying face down, pushing the contents of her body up into it, as it were, into the chest, so that the chest becomes restricted in what it can do and how it moves and consequently she can't have difficulty breathing?---Yes.

How does alcohol then contribute to death?---One of the major triggers that allows us to breath naturally without thinking about it is a centre in the brain, called the respiratory centre, and this automatically and reflexly allows us to breath as I say, without thinking about it. All these centres in the brain can suffer acute toxicity as a result of alcohol. So that it's a normal function that is very likely to have been impeded. So that protective mechanism that would allow her to breathe reflexly, in my opinion, was likely to have been damaged acutely as a result of alcohol.

So if we weren't - if it was any of us in this room it might be without alcohol, however we find ourselves having difficulty breathing then we respond to that difficulty; the body naturally responds?---There are a number of reflex protective mechanisms, yes.

But with Ms Braedon, the level of alcohol in her body, in your opinion, severely reduced any response?---I believe that's very likely, yes.

And now you say that the level of alcohol was - could have been greater that 0.217. Is that, when you say that it is likely that the blood alcohol concentration be much higher, you say that because of the aspects of decomposition; is that right?---Yes, it is.

And also the fact that level of alcohol present at that time indicated to you that there'd been possibly a much higher level at an earlier time?---Yes.

And consequently that underscores your opinion regarding the way the alcohol worked on the person at the time, breading down the capacity to respond - the mechanisms to respond that worked in conjunction with her weight and the position of the body to bring about death?---Yes sir."

No factor external to the deceased's physical condition, such as injury, arises on the evidence as contributing to or leading to her death. The cause of death therefore was asphyxia as a result of posture at the time of death and contributed to by alcohol toxicity and morbid obesity.

The circumstances of this case lead to no other finding on the balance of probabilities than that: on Thursday 3 September 1998 at Alice Springs in the Northern Territory, Cheryl Anthea Braedon died of asphyxia due to the accidental effects of the posture she adopted at a time immediately before or during or after sexual activity and prior to death in combination with the conditions of morbid obesity and alcohol toxicity.

The actual time of death cannot be determined with any precision on the evidence. It is clear that the deceased was last seen alive on the morning of 3 September 1998 at or after 4.00 am at the Plaza Hotel at Alice Springs. Her body was not discovered until five days later. By that time the condition of the body did not allow for an actual time of death to be recorded. The Forensic Pathologist gave evidence that the extent of the decomposition of the body was consistent with death having occurred in the early hours of the morning of Thursday 3 September 1998. This evidence together with other evidence adduced at the Inquest results in my finding that death occurred in the early hours of the morning on 3 September 1998 sometime after 4.00 am.

The place of death was in Alice Springs and more particularly in the Todd River.

FORMAL FINDINGS

(i)       The identity of the deceased person was Cheryl Anthea Braedon, a female Aboriginal Australian born on 29 December 1976 at Alice Springs in the Northern Territory of Australia.

(ii)       The time and place of death was at Alice Springs more particularly in the bed of the Todd River after 4.00 am on 3 September 1998.

(iii)       The deceased died from asphyxia due to the accidental effects of the posture she adopted immediately prior to the time of death in combination with the conditions of alcohol toxicity and morbid obesity. There is no evidence to suggest foul play or non-consensual activity leading up to or occurring immediately prior to death.

(iv)       The particulars required to register the death are:

1.       The deceased was a female.

2.       The deceased was of Australian Aboriginal origin.

3.       The death was reported to the coroner.

4.       The cause of death was confirmed by post mortem.

5.       Asphyxia caused the death.

6.       The pathologist viewed the body after death.

7.       The pathologist was Dr Terence John Sinton of the Royal Darwin Hospital.

8.       The mother of the deceased was Connie Braedon and the father of the deceased was Henry Bloomfield.

9.       The usual address of the deceased was 11 Pedlar Avenue, Alice Springs in the Northern Territory.

10.       The deceased was not employed at the time of death.

RELEVANT CIRCUMSTANCES CONCERNING THE DEATH INCLUDING COMMENTS, REPORTS AND RECOMMENDATIONS

Cheryl Braedon was a quiet warm-hearted girl. She enjoyed school where she was active and popular. She was good at sports and was chosen to represent the Northern Territory at softball. She had remained fit throughout her teenage years but in the two years prior to her death she had gained a great deal of weight. At post mortem she weighed 105 kilograms.

After she finished school she obtained employment with Telstra. That employment took her to Adelaide where she remained until April 1998. In that month she moved back to Alice Springs as she had become "homesick". She was a single woman without children and prior to her death did not have a boyfriend.

It was Ms Braedon's habit to go about once a week to nightclubs for a drink with friends. The police investigation, born out by the evidence, that she was familiar to people who visited a number of local "night spots". She was known to over-indulge in alcohol from time to time but always caught taxis home or to friend's houses after going out. She was not a person who would go off with people she did not know.

Evening of 2 September 1998

The evidence addressed at the Inquest established that on the evening of Wednesday 2 September 1998 arrangements had been made by the deceased to meet two friends, Andrea Greene and Lynette Ross, at her brother's house where she was staying. Earlier in the day all three had decided that they would go out that night. Lynette arrived at about 8.30 pm. Andrea was dropped off at Ms Braedon's place at about 10.30 pm.

Ms Greene gave evidence that while they were at the house Ms Braedon drank a full 750ml bottle of Jim Beam bourbon which she mixed with coca-cola. Ms Ross told police that the consumption of liquor had made Ms Braedon drunk. She was slurring her speech, "she seemed to stagger around when she was walking, her eyes appeared glassy and she seemed to be rambling on when she was speaking". Ms Greene was less clear in her evidence as to the amount of alcohol that was consumed by Ms Braedon before the friends left the house to go out.

At approximately 12.30 am on 3 September 1998 the women left by taxi to go to the Simpson's Gap Bar ("SGB"), a nightclub situated at the Plaza Hotel.

The Plaza Hotel

They arrived at the hotel at about 1.00 am. It appears that Ms Braedon did not have any money and after their arrival at the "SGB" Ms Ross bought her drinks. Ms Ross believes the drinks she bought were bourbon and coke although she is uncertain of that fact.

After arriving the friends socialised. Ms Braedon spoke to a number of people. However, the precise events that took place and the people to whom she spoke cannot be ascertained with any degree of reliability. Many of the people spoken to be police about that morning were themselves affected by liquor and inquiries did not commence until a couple of days later.

Kelly Anne Bladon gave evidence that she was at the "SGB" from about 10.00 pm on 2 September 1998. She remembers a number of people who were present. She recalls a fellow by the name of Arthur (probably Arthur Butler) and another man by the name of Shaun. On the evidence, it would appear that this was Shaun Cummings. She told police that Shaun was in company with another "half-caste" man who she did not know. While she was talking to Shaun "a largely built half-caste (sic) female came up and started talking to Shaun". It appeared to her that the woman and the two men knew one another. She noticed the large woman was swaying on her feet. She concluded the woman was drunk. Later she identified the woman as Cheryl Braedon from a photograph of the missing person in the Advocate newspaper. In her second statement to police (Ex 1 D4) she said that she could not recall things so well because she was intoxicated. In particular she could not recall any event such as described later in evidence by the witness Arthur Butler that Ali Satour was "trying to hit on her" later in the morning after the nightclub had closed.

Greene and Ross left the nightclub at between 2.15 and 3.00 am. Each has a slightly different recollection of the time. Before leaving, Ross walked over to the deceased and gave her a ten-dollar note so that she had enough money to get a taxi home. At the time she gave the money to the deceased, Ms Braedon was talking to two males she had not seen before.

The evidence given indicates that Ms Braedon consumed about three standard spirit drinks before closing time at the "SGB" though, like much of the evidence given relating to the events prior to closure of the night club, it suffers from a lack of reliability due in part to the state of intoxication, on the evening and morning, of those giving the evidence, and in part to the fact that the circumstances and fluidity of the social environment made it difficult for the participants to describe the events accurately.

Arthur Butler gave evidence that he arrived at the "SGB" at 10.00 to 10.15 pm on 2 September 1998. His recollection was that the deceased arrived about "11.00 ish". He saw her enter the establishment with 2 or 3 other females. He identified Ms Braedon as the person he had seen from a photograph shown to him by uniformed police on Saturday 4 September 1998 at a time when the deceased was still officially listed as a missing person.

Mr Butler spent the evening and early morning in the company of Ali Satour and Shaun Cummings. While he was at the Plaza he told police he drank "6 or 7 stollies" (Ex 1 D12 p 4). He remembers that Shaun and Ali spoke to Ms Braedon through the evening (sic). His evidence assumes critical importance when it deals with events that took place after the nightclub closed.

Ms Anna Elliott gave an account of a slight altercation involving herself and the deceased at some time during the morning. She was at the "SGB" with her boyfriend, Brendon. She told police that the deceased seemed to be really drink and was calling out to Brendon. Elliott walked over to her and asked her what she was saying. She could not understand the deceased's replies as she was "totally incoherent". Elliot left the Plaza at about 3.00 am. She made no further observations of the deceased.

AFTER THE "SGB" CLOSED - THURSDAY 3 SEPTEMBER 1998

It was the evidence of Mr Butler that the nightclub closed on a Thursday morning at 4.00 am. He was familiar with the closing time as he described himself as a member of the nightclub scene. Prior to closure the lights were turned on and those still in the club were moved out. A number of people left by walking out through the foyer of the hotel and then through the front doors. Groups of patrons gathered at the front of the Plaza and proceeded to leave by taxi.

Mr Butler's account, given in evidence during cross-examination, of what occurred after patrons of the nightclub had moved to the front of the hotel differed in a number of significant respects to that which he had given to police in two statements and sought to maintain in his evidence in chief.

In relation to the movements of Ali Sartour and Shaun Cummings after the "SGB" closed and in relation to the deceased who was situated immediately outside the nightclub's entrance, Mr Butler said in evidence as follows (p 92 of transcript):

       

       "What were they doing?---Walking around and making sure that she was - they were walking around and all that making sure that she was okay and all that.

       What was Ms Braedon doing that caused a concern; did you see?---No concern really. She was just sitting down minding her own business really.

       So she didn't appear distressed?---No.

       And she was awake , was she?---Yes, I could see, though as I said I had a fair bit to drink that night.

       All right. Now so you say that they were going over to her and talking to her?---Just seeing if she was okay if that's what you're pointing out, yes.

       How do you know that's what they were doing?--It's just only an assumption.

       Yes, and what did you base that assumption?---Making sure that she was okay, that she was right, that everything was okay with her, that's all.

       Yeah, but you were saying that's what they were doing, are you saying that's an assumption on your part. On what are you basing that assumption?---I'm only just assuming - as ---

       THE CORONER: Well you couldn't hear what they were saying to her, could you?---No.

       But you could see that they were talking to her?---Yes.

       Is that what you're saying to me?---Yes.

       Thank you.

And then (p 113/114 of the transcript)

       "See, the police come and speak to you again and want you to give more detail about what's going on and you give an account which is closer to the truth, and actually does put Shaun and Ali in very close proximity to Ms Braedon, doesn't it?---Yes, it does.

       And has them chatting to her as you take off doesn't it?---Yes

       And It doesn't have them walking away from her as you take off, does it?--- No.

       And that's the scene you left was you going off in a taxi that you thought those boys were going to jump into. They didn't. They sent you off on your own and then they go back and you last see them chatting to Ms Braedon, isn't it?---Yes.

       MR TIPPETT: Mr Butler, you believe that your two friends, Ali and Shaun, were with Ms Braedon that morning when she died, don't you?---Yes.

       That belief is based on the fact, Mr Butler, that you saw them with Ms Braedon shortly before you left and they were the only people there?---Yes.

       Ali, Shaun and Ms Braedon. That's true, isn't it?---Yes, it was.

       And when you found out that persons had gone missing, Ms Braedon had gone missing, that scared you half to death; didn't it?---Just a bit.

       Just a bit. Well you see when police came to see you on that Saturday morning when you were in bed, you recall that night, that morning, did you not?---Yes.

       You recalled that there, you were out in front of the Plaza Hotel, there was you there was Ali, there was Shaun and there was Ms Braedon. You knew that, did you not?---Yes, I did.

And then (p 119 and p 120 of transcript)

       "THE CORONER: Whereabouts did you see them to discuss this?---As I said to the other counsellor, I only spoke with Ali in the road, that was after - please I just want it to end. I just want it to end.

       MR TIPPETT: Now what you know is that on this night, they didn't have any intention of going to the takeaway shop, did they??---Mm mm.

       Right, they didn't, did they? Mr Butler, please, they had not intention of going to the takeaway shop, did they?---No.

       Right, and that's way they didn't get into you cab and that's why they stayed with Ms Braedon; isn't that the truth?---Yes.

       And what frightens you is that when you know you left, their intention was to try and have sex with Ms Braedon; wasn't that the truth?---Yes.

       And when you spoke to them later on - when you spoke to Ali at least, you must have also spoken to Shaun; did you not?---No, I didn't. I don't see Shaun much anymore.

       THE CORONER: Do you still see Ali?---Sorry, Your Honour.

       You don't see Shaun much anymore but do you still see Ali?---I don't see them anymore. I don't see both of them much anymore?

       MR TIPPETT: You say in your statement to police, you were worried about the fact that you really had information about what had occurred on that evening but you were concerned that you may have got into trouble because you withheld some information from the police. That was a worry that you had, wasn't it?---Yes.

       Yes, and indeed you withheld information, some information of course to the police in your second statement, didn't you?---Yes.

       Yes, and that information that you had withheld is now - Mr Butler, you're able to tell us now. You see this has already been pointed out to you. We all know left in a cab and we know you had concern and maybe you felt guilty that in fact you knew what these young men were going to do and you didn't sort of do more to stop them; would that be the fact?---Yes.

       Yes, and so you and when you heard about what occurred, the fact that this young woman had gone missing and that her body had been found. You become even guilt stricken by the fact that you had withheld from police that you really could have stope this; is that right?---Yes.

       Yes, but and you know that Ali and Shaun were with Ms Braedon in creek in the Todd that morning, because of what they told you; is that correct?---Yes.

       And what you saw that morning out the front of the Plaza; is that correct?---Yes.

       And once you had that information, once they told you what had occurred in the creek, you didn't want to know any more about it because you were scared both for yourself; is that right?---Yes.

       And you were scared because you really thought that you may have been able to maybe put Ms Braedon in a cab or take her away; is that right?---Yes. I'm still guilty to that to this day - and the guilt still holds me."

And finally (p 120/121 of transcript)

       MR TIPPETT: Thank you. Could you tell us when you had that 5 to 10 minute conversation, who started the conversation?---I did. I went up to Ali and said; `Hi, how you're going', and then we just had a normal chit-chat. He asked me about money and I said I'd get it to him as soon as I can. I still haven't got it to him.

       And when you went on to talking about what happened on the morning. What was said then, what did he say and what did you say?---I can't remember.

       Do the best you can. If you can't remember that exact words just tell us as best you can what you remember of him telling you and what you said to him?--- He did it.

       He did it. What did he tell you he did - what did he tell you he did, Mr Butler. Please tell us what did he tell you?---He did it with her.

       He did what with her?---He had sex with her. Please, Mr Tippett.

       Yes, tell us more?---That's all I know.

       Please, tell us more?---No, Mr Tippett. Mr Tippett that's all."

Mr Goldflam, counsel for two of the summonsed witnesses made the following application (first in relation to Ali Satour and then for Shaun Cummings), page 126:

       "MR GOLDFLAM: Your Worship, this is an application that he be excused from giving evidence in these proceedings under section 38 of the Coroners Act which provides that:

        A person shall not, under this Act, be compelled to answer a question which may tend to incriminate the person.

       It's my application that, particularly in light of the evidence given by the previous witness, that Mr Satour has already been identified by first witness in these proceedings as a suspect having committed criminal offences.

       He's a person who if he is subjected to examination, may well be and in all likelihood would be at risk of incriminating himself, and that any questions that he's asked would have the tendency to incriminate him. It may be that such questions may not directly touch on the question of whether or not he has committed an offence."

These applications by Mr Goldflam were successful.

The only other witness to the events outside the "SGB" after the closing that I wish to quote is Mr R.C. Rodrigues, an impressive witness who gave reliable evidence in my view at page 164:

"And she - you say that as soon as Kelly left, the other three people walked off down the driveway towards town. Are you able to - you've described those three people to police?---Mm mm.

Was one of those people a woman?---Yes, two males and a woman.

And are you able to describe the physical build of the woman?---5.2, 5.3, 5.4. Not much shorter than me. At the time I said she was 100 kilos, maybe a tad more.

Right so she was a large person?---Yes.

And you said they were - you said they were 50 to 60 metres from you when you last saw them?---Mm mm.

Were they heading off at that stage towards the Todd River?---They were walking alone the - I suppose what you would call the gravel. There's bitumen then there's gravel and obviously there's the river and along the gravel there towards town or in that direction anyway.

And you were shown a photograph of the Aboriginal woman that you identified as the very large person that you saw with these men?---Yes.

And I think you identified that photograph as a photograph of Ms Braedon?---Yeah, that's correct."

Unfortunately, he was unable to identify the two males.

As a result of further information given by him at this Inquest and having regard to all the other evidence, it can be comfortably found on the balance of probabilities that the following events occurred:

1.       Butler together with the men, Ali Satour and Shaun Cummings, moved to the front of the hotel with other patrons. Once there, Butler spoke to Kelly Bladon. She was engaged in calling a taxi. Either while she waited for the cab to arrive or while she was about to call the cab Ali Satour made sexual overtures to her and asked her to go home with him. Bladon rejected his advances.

2.       By the time Bladon's taxi arrived to pick her up the crowd at the front of the hotel had dispersed. The only persons remaining with the deceased were Butler, Satour and Cummings.

3.       The deceased had moved out to the front of the hotel with the others. She probably did this independently of the three males and Bladon. Once outside she sat down on a triangular bench. It appears that she sat there alone though Butler in a diagram he drew for police had Satour and himself sitting next to her on the same bench.

4.       Bladon left by taxi. By this time Satour and Cummings had begun to display an interest in the deceased. It is not known what conversation took place. They "checked her out" from time to time, according to Butler, and were talking to her.

5.       It was the evidence of Butler that the two men were interested in seeking out sexual activity during the time they remained outside the Plaza Hotel.

6.       A short time later a hire car arrived driven by a man Jason O'Brien who was known to Butler. At that point Butler wanted to go home. He was tired and he had "school" the next day. He did not have any money for the fare.

7.       Ali Satour made enquiries of the driver as to the cost of the fare to take Butler home. He was told seven dollars. He gave that amount to Butler. Prior to that event it seems likely that Satour and Cummings had decided to remain with the deceased. They lived within a few hundred metres of the Butler's home yet they elected not to get into the cab with him.

8.       It is probable that Butler made entreaties to them to come with him. The conversation over this period of time was not described in evidence. However, the reason for staying behind if not specifically articulated to Butler was clear due to the actions of the men, the fact that the walk was a significant distance, Satour had plenty of money about his person as a result of receiving a tax refund cheque the previous day, that the men had indicated to Butler they were after sexual activity and the only female left at the front of the hotel was Ms Braedon. Butler left in the private hire car.

9.       Satour and Cummings left the front of the hotel in company with the deceased. They were known to her. Ms Connie Braedon, the mother of the deceased, later told police that her daughter would not have gone with someone she did not know. He saw two males in company with a large female walking north along Barrett Drive on the gravel verge. He identified the female he saw as the deceased from a photograph. His evidence was given frankly and I accept it. I also rely on the evidence of Butler that Satour admitted to him that Satour had sex with Braedon at the Todd River after leaving the hotel with Braedon.

10.       At some point as the party walked north they detoured into the bed of the Todd River. At most points in the bed of the river persons could be observed from the road. The body of the deceased was found close to the western bank of the river in a river channel between two embankments. Any sexual activity which took place at that location would be hidden from view according to the evidence of Acting Sergeant Vincent Kelly.

11.       The three of them walked across the river with the deceased in all likelihood searching for a suitable spot at which to engage in sexual activity. That spot was found between the two embankments where the body of the deceased was later found.

12.       At that place the deceased removed her pants and underwear. According to Detective Kelly the size of the deceased would have made it extremely difficult for that to occur unless the deceased assisted.

13.       Sexual activity then took place. Satour later told Butler that he had sex with the deceased. The postmortem does not exclude an act of consensual sexual intercourse taking place. Further the position of the body as seen in the photographs indicates a posture receptive to intercourse . It was the opinion of the forensic pathologist that his findings, which incorporated knowledge of the position of the body as described in the photographs, were consistent with consensual intercourse. That is made more likely by the fact that no injuries indicating a struggle or defence during a struggle were found on the body.

14.       There is no evidence that Cummings engaged in any sexual activity with the deceased. It is possible that the deceased may have died before that act took place. While Satour told Butler that he "had sex" with Ms Braedon he made no mention of Cummings. It is reasonable to assume that had Cummings engaged in intercourse then he would have included that fact in the conversation he had with Butler.

15.       It may be inferred on the balance of probabilities that the deceased died while the two men were with her. When her body was first located it had been buried by someone scooping and heaping sand over it. That act indicates that the person or persons who carried out that activity believed that the deceased was dead. Although Sartour made no mention to Butler of burying the body, at least nothing that Butler was prepared to concede in evidence, he admitted having sex. Satour and Cummings had cause and were in proximity to the deceased to have carried it out. The only reasonable inference that is open to be drawn on the evidence is that Satour and Cummings buried the body. Any suggestion that other persons unknown came across the body and buried it would be on the evidence entirely fanciful. The finding is that certainly one and probably both men vis Satour and Cummings buried the body of Ms Braedon.

16.       The men left the site of the grave. All the evidence supports the conclusion that the men believed that the death of the deceased may have either been brought about by their actions or that it would be attributed to them by police and or family members of the deceased. They buried the body, left the scene and failed to respond to requests by police in the media for information concerning the whereabouts of Ms Braedon as a missing person. Further to those observations is the fact that when asked by police about their connection to the deceased, after her body had been found, they told police that she was sitting on a bench by herself, they left her there and never saw her again. An acceptance of the evidence of Butler and Rodrigues results in the inevitable conclusion that their statements to police are a fabrication designed to keep hidden the fact that they went into the bed of the Todd River with the deceased to the location where her body was found.

THE DECEASED AS A MISSING PERSON

Ms Braedon became a missing person on 4 September 1998 at 1.45 pm in the afternoon. Over the course of the next four days the police through Constable Mosely and later Detective Senior Constable Taylor conducted extensive enquiries as to her whereabouts. The steps taken in that investigation are described in the Investigation Diary under Folio C of Ex.1.

Ms Braedon's status as a missing person came to an end with a report to police at 7.40 pm on Tuesday 8 September 1999 by a member of the public, Joanne Nixon, who advised that a strong smell was emanating from the Todd River on South Terrace. A short time later the body of the deceased was discovered.

THE POLICE INVESTIGATION

No criticism of the thoroughness or extent of the police investigation was made by any of the parties at the Inquest. Indeed the investigation, which remains open, was exhaustive. Some 62 witnesses were interviewed. A number of particularly relevant witnesses were interviewed on a second and third occasion. Extensive searches were undertaken by investigating police and emergency service personnel in and around the vicinity of the location where the body was discovered. Apparently there had been some problems relating to communication between the family of the deceased and police during the period the deceased remained a missing person.

After the body of the deceased was discovered the family were appropriately notified.

The investigation of the burial site was hampered by the passage of time. The surrounding ground had been disturbed by the vehicle tracks and the activities of animals. There was also the complicating factor of the town council clearing the bed of the river of rubbish on a daily basis. The opportunity of discovering the activities of possible offenders by marks or imprints in the coarse river sand had been entirely lost by the time police were in a position to carefully assess the area.

An appropriate crime scene was established and maintained by crime scene guards. As little disturbance of the ground around the body took place until the investigating officers had the conditions and were in a position to undertake a forensic examination.

The investigating team and in particular the supervising officer Detective Acting Sergeant Vincent Kelly are to be commended for the manner in which they carried out the operation.

DOES THE EVIDENCE SUPPORT A CONCLUSION THAT A CRIME HAS BEEN COMMITTED?

In accordance with the provisions of Section 35 (3) of the Coroners Act there is evidence to the effect that crimes may have been committed in connection with the death of Cheryl Anthea Braedon. Those crimes can be identified as follows:

1.       Interfering with a body contrary to Section 140 of the Criminal Code Act (NT).

2.       Perverting and or attempting to pervert the course of justice contrary to Section 109 of the Criminal Code Act (NT).

3.       Making false statements contrary to Section 118 Criminal Code Act (NT).

There may also be a number of summary offences that have been committed in connection with the death.

As a result of the finding that a number of offences may have been committed by Ali Satour and Shaun Cummings in connection with the death of Ms Braedon it is mandatory that a report be forwarded to the Commissioner of Police and the Director of Public Prosecutions for their consideration. In accordance with that requirement it is directed that a copy of the transcript of these proceedings, the Coronial Brief Exhibit 1 and all additional exhibits and a copy of the findings be forwarded to those authorities.