Written Submissions of Paul Warren in Reply Date: 08 October 2023
( Note Draft copy only ) this is not the final copy sent to Mr Cain.
Introduction
These submissions addresses the following matters raised in the submissions of Sergeant Ross Treverton assisting cancel and the Australian Federal Police.
The toxicology results and other relevant evidence regarding drugs and alcohol.
The circumstantial evidence which does not support an undetermined finding.
The very high density areas of the sand found in Elly’s airways. Both Lungs were full with sand.
The shortfall of information to the family by the AFP.
Toxicology
Mr Treverton has submitted that there were limitations in the toxicology results. Regardless of any limitations from a forensic perspective, both drugs and alcohol should be excluded as factors which may have contributed to Elly’s death.
The Melbourne Pathologist gave evidence that the optimal time for taking forensic samples for toxicology, specifically for blood alcohol was during the original autopsy in Mozambique. (T180, l. 23-28) However, the doctor gave evidence that while there was no specimen for blood alcohol taken, there was a reasonably exhaustive tox screen done (T 198, l. 12-26).
There appears to be no basis for doubting the toxicology results other than to note that a blood alcohol reading was not taken.
The circumstantial evidence surrounding the presence of alcohol does not support a conclusion that Elly was intoxicated on the night she died.
On this basis, drugs and alcohol should be disregarded as a potential cause of Elly’s death.
Circumstantial evidence supporting a conclusion of homicide
While the opinions of Dr. Klepp and Melbourne pathologist is subjective, it is not determinative of the mechanism of Elly’s death. The submissions prepared by Mr Treverton focus almost exclusively on the medical evidence to recommend an indeterminate finding.
In my previous submissions, there is circumstantial evidence which supports a finding of homicide. These factors must be considered when determining the manner of my daughter’s death.
The damage to Elly’s top as shown in the photo of her body in situ in the crime scene photo suggests the involvement of another party. The photo clearly shows Elly’s top ripped from the shoulder down the right side of her body. Jade O’Shea gave evidence and upon seeing Elly for the last time on 8th November 2016, Ms O’Shea stated that “she looked normal” (T27, l.6). It is highly likely that the damage to Elly's T- Shirt happened just before or during an assault causing death.
The evidence demonstrates Elly’s body having been moved post mortem and this is a key factor that a third party must have been involved in Elly’s death. This has been discussed in my previous submissions in detail at paragraphs 5.13 to 5.17 and 5.26.
It is acknowledged that there are no major marks on Elly’s body to suggest a struggle, this does not provide conclusive proof that no assault has not occurred. In his evidence, Dr Lynch states that one may not see any visible evidence on the body if an injury were to occur on a soft surface (T228, l.7-21).
There is substantial evidence to support that Elly was moved to the toilet block which is of a firm sandy surface and she died elsewhere, such as the main beach where the soft sand would not cause major visible injuries to her throat, neck or face (T47, l. 9-11). This is discussed further at paragraph 5.26 in my previous submissions.
The abundance of sand
It is highly likely the high density of the sand found in Elly’s airways is a strong indicator that Elly was murdered. It indicates this to be the Density levels from the initial autopsy. As 1290HU is at the back of the nose and is a very difficult position to be washed away. The lower airways in the lungs is 947HU of the lungs which the normal procedure is to have these organs removed before any washing. Therefore any washing by Dr Klepp can’t compromise the sand in both lungs as the procedure is to remove them at the initial autopsy.
During the inquest, Dr Patricia Klepp gave evidence that the sand found in Elly’s airways was ‘chock a block’. Dr Klepp also stated that: ‘I have seen sand, but I must say I have never, ever in 44 years seen as much sand in the oral cavity, the trachea and the bronchi as I did in Ms Warren’ (T181, l. 22-25).
The evidence of Dr Christopher O’Donnell during the inquest confirmed that the sand found in Elly’s airways was highly dense. Dr O’Donnell confirmed that the sand seen in Elly’s airways measured at an equal or greater density to that of bone. (T234, l. 3-5).
The mass lodged at the back of Elly’s nose has a reading level of 1290Hu. My research reveals that a brick ordinarily produces readings starting at 1500Hu.
While Dr Klepp washed Elly’s body following her post mortem examination, this mass of densely packed sand was not dislodged.
This mass of sand is so dense that it is impossible that it was inhaled naturally without some application of force. Elly’s lungs had also produced a density reading of 947Hu. This is a similarly high reading to that found at the back of Elly’s nose.
It is impossible that this highly densely packed sand could have been inhaled naturally and is a strong indicator that some force was used to force the sand in. It is further submitted that in light of the difficulties washing out material of this density, the reading taken of Elly’s lungs should be viewed as similar to the condition of her lungs at the time of death.
I have since conducted my own research which revealed that the Australian Bureau of Statistics has no recorded case in the last sixty years of a person dying by falling over and inhaling sand in an unconscious state for whatever reason to just fall over on sand.
While my research is not determinative, it demonstrates that the likelihood of Elly inhaling sand packed to this degree is just not possible. This is further supported by Dr Klepp’s evidence that “lying flat doesn’t compromise your breathing” On this firm surface, (T197, l. 29-31). The photo depicting Elly’s body in situ shows Elly’s body flat on a firm sandy surface. In light of Dr. Klepp’s evidence, Elly could not have compromised her breathing to the degree in this position with the chockablock sand Dr. Klepp had found in her examination.
The provision of information to the family by the AFP
The submissions of the AFP indicate Ms. Kylie Hemiak was not called to give evidence in person at the inquest. This matter was the subject of a directions hearing on 20 February 2023. At that hearing, Ms Karamicov of counsel submitted on Mr Warren’s behalf that Ms Hemiak should be called as a witness (T24, l.28). The Court has indicated that its preference was for one person from the AFP to provide a statement and give evidence at the inquest, rather than having to get evidence from all AFP members(T26, l.8-16). On this basis Ms Hemiak was not called as a witness at the inquest. The representative the AFP had chosen to give evidence on the AFP’s behalf was Commander Smith for the AFP. Ms Hemiak was not chosen to represent the AFP.
There was no evidence at all that the AFP informed myself or the family of the decision not to investigate Elly’s death or that a review process was available to the family.
There is no evidence of the AFP having sought consent from the family prior to disclosing the explicit naked photograph of Elly to Mozambican authorities. It is unacceptable that the family and coroner was not informed of this photo or that consent from Elly’s family was not sought by the AFP before they handed it over to the Mozambique inspector on the 8th December 2016.
The submissions prepared by counsel assisting Mr Treverton to the Court refers to the evidence given by Commander Smith that the AFP were not aware Elly’s death was being treated as a homicide until May 2023. Commander Smith’s evidence is not consistent with the action sheets produced by the AFP during the course of this matter. The action sheet exhibited to my affidavit refers to a document being provided by Ms. Stacey Walker to the AFP which lists the cause of Elly’s death as' suffocation’. This document is however an official revised Mozambique police report which further states homicide as the manner of death on 10 April 2017. Also the AFP were given the clear crime photo as stated in the recent letter by the AFP Lawyer. It states: This clear photo was handed over by DFAT to the AFP on the 25th November 2016 making them fully aware of the circumstances in this photo of the ripped apart top sixteen days after my daughter’s death.
Conclusion
The overwhelming facts indicate that there is sufficient evidence to support the finding that My daughter was murdered. The evidence is supported by the accounts of witnesses who were with Elly or saw her on the night before she died. The totality of the evidence, including the packed sand in Elly’s upper and lower airways with very high density levels, her ripped apart top and body being moved, weighs strongly in favor of a finding of homicide.
Paul Warren