Table of contents;-
1) My conclusion on Mr Cain’s findings
2)Body of my report on Mr Cain’s findings
a) The compelling evidence of packed sand in the airways.
b) The circumstances surrounding the clear crime scene photo.
c) My meeting I had with the Mozambique Superintendent chief , Mr Cudzi of criminal investigations in charge of Elly’s case in 2018.
d) The AFP’s lack of Involvement.
e) The clothes Elly was wearing on the night in question.
f) Further Concluding points of concern .
I would like to explain why there are concerning aspects with the coroner's findings which are upsetting and why I said that the coroner and AFP has let down the family in more detail.
I realize we are talking about the State Coroner here but really it just comes down to his opinion.
My Conclusion on Mr Cain’s findings:-
First of all I need to explain Mr Cain’s findings and the bases for his findings he states:-
“In his findings that; “all coronial findings must be made based on proof of relevant facts on the balance of probabilities”. “The strength of evidence necessary to prove relevant facts varies according to the nature of the facts and the circumstances in which they are sought to be proved”.
“In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw”. “The effect of this and similar authorities is that coroners should not make adverse findings against, or comments about, individuals or entities, unless the evidence provides a COMFORTABLE LEVEL of satisfaction that they caused or contributed to the death”.
For those who are not aware of the Briginshaw v Briginshaw case Mr Cain is referring to in his findings. Below is a brief description and it is very important because this case is used for the bases of Mr Cain’s findings:-
Briginshaw v Briginshaw is a decision of the High Court of Australia in 1938 which considered how the requisite standard of proof should operate in civil proceedings.
The case in question was that Mr. Briginshaw accused Mrs. Briginshaw of adultery because she had been seen attending dances with another individual, and had been driven home and kissed by this same individual. The co-respondent to Mrs. Briginshaw was the individual she had attended the dance with, who denied that adultery had occurred.
The main point being, is adultery has only occurred when an act of sexual intercourse has occurred.
Therefore Mr Cain is evaluating whether Elly was murdered using the standard of proof set down by the high court in 1938 as his basis for his point of reference in Elly’s case.
In effect what this means is basically in the Briginshaw V Briginahaw case you can have all the circumstantial evidence there is but it’s not adultery in this case unless the facts prove the act of sexual intercourse has taken place.
Martin J in the Supreme Court of Victoria evaluated the initial evidence at the standard of beyond reasonable doubt, and at that standard found insufficient evidence to support the allegation of adultery. An appeal was lodged with the high court that was also dismissed on the grounds of insufficient evidence.
Therefore based on the High Courts decision in 1938 which is now known as the (“ Briginshaw Principle”) Mr Cain is saying the evidence is not strong enough to say Elly was actually murdered. Even though we have very strong credible circumstantial evidence which is highly suspicious and weighs heavily on the side of beyond reasonable doubt that Elly was in fact murdered given the proof of relevant facts on the balance of probabilities which means “more likely than not” in favor of murder in Elly’s case.
If Elly’s case was adjudicated by a jury with all this compelling evidence put forward I am very confident with the full extent of the factual relevant proof of evidence they would absolutely say the balance of probabilities weighs heavily on the side of murder. As there is enough factual evidence beyond reasonable doubt, with the highly suspicious circumstances to prove Elly was murdered as she just can’t breathe in this amount of sand naturally from falling over onto the sand. This factual evidence proves beyond reasonable doubt that the sand would have to have been forced in by a third party to have had the sand so chockablock as described by Dr. Klepp at the inquest.
What’s very interesting here with the coroner’s court is, does the court take the burden of proof beyond reasonable doubt into consideration. There is abundance of factual evidence which is beyond reasonable doubt that Elly was murdered. The coroner has not taken all the factual evidence into account or given full credit or weight to all of the factual evidence. I am sure nearly everyone reading and evaluating all the factual evidence we have here would have to conclude without doubt that the volume and weight of factual relevant evidence proves beyond reasonable doubt that Elly was murdered.
What Mr Cain has based his findings on is the relevant strength of evidence and in HIS MIND the strength of evidence here is not strong enough. Therefore the factual evidence is not enough to prove the relevant strength of the facts based on the law of the balance of probabilities in Mr Cain’s mind. However, would a jury come to the same conclusion presented with the same factual evidence?
Well you make up your mind and think you are on a jury to determine if the evidence BELOW proves beyond reason doubt that Elly was murdered. I certainly feel there is a strong proof of evidence and the Mozambique police agree.
I feel a large proportion of the factual relevant evidence was proven with the evidence given at the inquest filling in important gaps in the evidence. Therefore what is the probability of this being a murder when Elly has inhaled a very large volume of sand packing her airways chockablock with sand as described by the witness at the crime scene, Dr. Klepp’s and Dr. O’ Donnell, evidence at the inquest with Dr. O’Donnell evidence given at the inquest also confirming that both lung trees to the lower level of the lungs is full with sand at bone density levels.
What is the probability then of Elly breathing in all the packed sand NATURALLY based on the actual factual evidence. I reiterate with very high density readings in the upper and lower airways filling up both lung trees chockablock with sand at bone density levels. It’s just not possible for Elly to pack the airways to such a degree on her own, especially laying flat on a firm surface with her head on top of the sand. There had to be a third party involved to force this large quaintly of packed sand into my daughter’s airways. This is why with the Initial strong proof of factual evidence of packed sand the Mozambique doctors were confronted with in their examination they had No hesitation in stating this is a violent death homicide.
Now you need to add the fact the top is ripped apart also adding the strong evidence of the firm surface the body was found on and that Dr. Klepp and Dr. Collins have both stated that its highly unlikely Elly could compromise her airways to this extent laying flat on this firm surface where the body was found with her head on top of the surface. We also need to add the Mozambique police conclusion and their autopsy conclusions concurring without doubt that the manner of death is homicide. We need to also add the marks and bruising on the body, head back of her head and face. We also need to add the fact Elly was not under the influence of drugs or alcohol.
You would have to say that the sheer quantity of relevant factual evidence here proves a very high probability supporting the fact that Elly was murdered. therefore the strength of proof of evidence in this case weighs the balance of probability towards the fact that Elly was murdered.
I strongly disagree with Mr Cain’s finding and thinking in this case as each case is different with the weight of factual evidence. I feel the evidence of proof is very strong in Elly’s case especially the evidence of the abundances of packed sand in Elly’s airways as it is so compelling in my book that its not probable that in this manner and volume Elly has breathed in this packed sand naturally from just falling over onto the sand.
There is not a person who has died this way in Australia from just falling over in the sand inhaling a large amount of sand obstructing the airways causing death since records have been taken over 60 years!
If the family was to take this to the Supreme Court of Australia as I am sure they would evaluate all the evidence on its merits in a logical manner. However this is far too expensive for the family. The family has already paid out a substantial amount of money for the investigation so far.
I have however contacted some people who may be able to support the family financially to take this on further to the Supreme court but I have had no reply to date.
There are also concerning aspects with the AFP letting down the family and I do have all the facts to prove this. I have exposed some of these aspects and informed the coroner of these facts in my oral submissions to the court on the 11th December 2023.
However Mr Cain said at my oral submissions that with the concerns I have with the AFP it falls outside the scope of his investigation with this matter and any concerns I have with the AFP will need to be taken up with them directly! Believe me I have tried but the AFP is aware I have all the facts. (Oral submissions transcript Pg, 290)
I feel Mr Cain’s decision here is not in the best interest of all Australians and very disappointing as it is really passing the buck as the way the AFP have handled their investigation with this matter I feel should fall within the scope of Mr Cain’s investigation to make recommendations for improvements.
Mr Cain I felt should have made recommendations to improve the direct involvement of the AFP to support Australian families when facing a crisis overseas as the AFP just turned a BLIND EYE and covered up circumstances ghosting vital evidence from the coroner in 2016/17 with Elly Warren’s colonial investigation matter.
The really disappointing factor here was I pointed out some deceitful concerns the family had with the AFP in my oral submissions on the 11th December 2023 to Mr Cain and he ignored most of these concerning issues as Mr Cain states in his findings that he is not critical of the AFP!!!
I mentioned to Mr Cain in my oral submissions below;-
MR WARREN: No, I understand that, Your Honour. I was just more concerned about these circumstances that may occur for other Australian families.
HIS HONOUR: I understand that and there's - - -
MR WARREN: I would like to know that the AFP would support - - -
HIS HONOUR: Sorry, I -
MR WARREN: And I'd like to know that the AFP would support other families.
HIS HONOUR: Yes, yes, and you've made that point.
MR WARREN: Yep.
This means Mr Cain fully understood the circumstances and the facts I had mentioned to him directly at my oral submissions yet Mr Cain states he is not critical of the AFP’s lack of effort and the deceitful manner with which they misinformed and ghosted evidence from the coroner and family.( All mentioned in my oral submissions blog)
For me to say the AFP was horrible to the media outside court I really needed to explain why they were so deceitful and misleading.
Mr Cain has let the AFP off the hook here and now they are all hoping it will all just go quietly away.
There are three critical areas in this report: The facts about the manner and cause of Elly's death and the AFP's Involvement.
Body of my report on Mr cain’s findings:-
a) The first point i would like to mention is really the most critical is the full impact of sand to Elly's airways.
This is really the decisive factor here and Mr Cain has not given enough weight in his findings as the compelling evidence of the abundance of densely packed sand in Elly’s airways is the contributing factor for the manner of Elly’s death.
Upon reading my report below you will understand how comprehensively the abundance of packed sand really was to the cause and manner of Elly's death.
The fact is not many people are aware of the sheer magnitude of exactly how much sand was in Elly’s airways. I feel this needs to be fully explained so people really understand just how packed Elly’s upper and lower airways were INITIALLY with sand.
In my oral submissions to Mr. Cain I tried to show and explain to him showing the density graphs for foreign materials comparisons to the high level readings of density recorded in the radiology images taken from the CT scan of Elly’s body. (See oral submissions blog transcript page 251-256)
Mr. Cain basically told me
“Mr. Warren I get the impact of sand
and the ripped apart top is not in dispute
As it turns out I don’t think Mr. Cain really did get the gravity of what I was trying to explain to him as his findings did not really reflect the full impact of sand to Elly’s airways with the compelling evidence by Dr. Klepp and the very high density readings recorded in the radiology scan.
Mr. Cain has left out one of the most important aspects, the high density values recorded in the radiology report, out of his findings. 1290 Hu upper and 947 Hu lower airways.
This is an indication of how densely packed Elly’s airways were at the time of death 1290Hu is equivalent to (Pottery or cement density levels) behind the back of the nose and therefore the sand was firmly packed into the Airways at the initial autopsy in Mozambique.
The sheer abundance of sand has recorded in parts of the airways very high density readings of sand which was no doubt the catalyst for the Mozambique doctors conducting the initial autopsy to state this is a homicide. They realized when examining the body it was not possible to breathe in this sheer volume of density packed sand in such a manner as the radiology scan proves with the very high density readings still showing parts of high density masses of sand in the Radiology images. These readings of high density masses of sand were still present and recorded after their had been two previous autopsy examinations.
Not only did the Mozambique doctors’ say homicide, but they added the fact it was a violent death on their autopsy report.
I told Mr Cain at my oral submissions that the most likely reason for the Mozambique doctors to say straight out this was Violent death Homicide was because of the sheer magnitude of this ABUNDANCE of PACKED sand they found in their initial autopsy. Proven by the very high density readings in the radiology report and the fact both lungs and the trachea are full with sand also with high density levels equivalent to bone density.
This is supported by their report at point 4 and 5 in the report's conclusion and fully explains that the airways are totally compromised by sand. To describe the sand the Mozambique doctors do use the term ABUNDANT sand found in the airways in the body of their report. (This is also fully explained in my oral submissions transcript Blog.)
There were some shortcomings with the Mozambique autopsy mentioned in the inquest but the abundances of sand was the one common denominator which concurred with the South Africa autopsy and the Melbourne radiology report.
Elly had a second Autopsy in South Africa and I was really surprised at the inquest how Dr. Klepp described and emphasized the sand she found in Elly’s airways in her examination.
Dr Klepp stated: The sand in Elly’s airways was “CHOCKABLOCK WITH SAND”.
Dr. Klepp also agrees with one of the first witnesses at the crime scene that morning who was asked to official identify Elly as he was Elly’s dive instructor and he states;-
“it was strange to see Elly’s mouth so packed with sand”.
Dr. Klepp was also asked at the inquest if she agreed with the witness's observation and
Dr. Klepp’s replied was:-
“...ABSOLUTELY, I AGREE…”
Dr. Klepp also states at the inquest: “I have had plenty of experience examining bodies where they have inhaled sand”
“But I must say in all my 44 years as a pathologist I have never seen as much sand as I did in Ms. Warren’s airways”
By now you are getting some Idea of just how much packed sand we are talking about here.
Now I am not finished as I do need to explain the high density readings in the radiology report which are very high density readings of 1290HU at the back of Elly’s nose even after the cleaning of the packed sand from the upper airways as the South African doctor said there was so much sand I needed to clean it away to do a proper examination from the upper airways.
1290HU you may think what's that? It is the same density as cement or pottery hence the charts I had shown the coroner in court for my oral submissions. This is a mass of sand at the back of Elly’s nose. (This is also explained more in my oral submissions transcript blog.)
There was a second reading in Elly’s trachea and bronchi of her lungs of 947HU. This reading is equivalent to cortical bone density levels in the lower airways.
The radiologist Dr. O’ Donnell states at the inquest that;-
“Both lung trees are FULL WITH SAND. the lower airways are equivalent to BONE DENSITY LEVELS 947HU''.
By now you are all starting to see why I am very upset with the coroner's findings as it's not possible for Elly to just fall over in the sand and breathe these amounts of sand naturally packing it into the lower lungs with these very high density levels of 1290HU and 947HU.
I also informed the coroner at my oral submissions that since records have been taken of causes of death in Australia at the Australian Bureau of statistics in over 60 years. There has not been one person's death recorded from just falling over into sand and inhaling sand obstructing the airways for whatever reason causing death. Buried alive in sand Yes, but not from just falling over into the sand for whatever reason.
Now you add the fact the coroner has stated that drugs and alcohol are not a contributing factor in his findings to have fallen over into the sand unconscious, really what reason do you have left she is a healthy twenty year old.
The coroner was very protective of the VIFM and Melbourne Pathologist who conducted the Melbourne autopsy. However in the end Mr. Cain had no alternative to run with the South African doctor's cause of death under these circumstances because the evidence of sand obstructing the airways was so compelling from the South African autopsy doctor and the radiologist’s.
Dr. Klepp’s cause of death was;-
“Elly had aspirated a lot of sand obstructing her airways”
The Melbourne pathologist had told me in a meeting I had with him in September 2017 all recorded he did not find any sand at all and at the inquest he stated he only found a small residue of sand.
The Melbourne pathologist states at the inquest :
"I must confess I did not find much sand, only a small amount of sand”.
I am not sure how this could be possible as the Ct Scan for the radiology report was completed just before his autopsy and it shows Elly’s airways and both lungs full with sand still at the time of his autopsy!!! Noting the very high density levels recorded and not mentioned at all in the coroner’s findings. It really makes me wonder if the Melbourne Pathologist examined the right body!
I am astounded and quite shocked that Mr. Cain did not mention the very high radiology Hounsfield Unit of measurement (HU) density readings in his findings.
However these high density readings don’t look good for the Melbourne pathologist because these readings are proven facts from the radiology report that Elly’s airways were still full with sand at the time he examined Elly on the 22nd November 2016.
You make up your own mind with the above facts with the impact of sand to Elly’s airways,
However in my book this proves it is more than a possibility that Elly was murdered. There is no way possible she can breathe in, as the facts show the abundant amounts of chockablock sand with High densely levels of sand to this degree on her own, there has to be a third party involvement here which has forced the sand into her airways and it should be Homicide as the finding.
b) The next point is the circumstances surrounding the clear crime scene photo.
The Victorian Institute of Forensic Medicine was also given the clear crime scene photo as well in November 2016, but Mr. Cain has also failed to mention this in his findings as they did not examine the photo and send a report to the Melbourne Pathologist or the coroner in 2016.
I should explain here that there were two versions of the same crime scene photo which was taken by a fisherman at 5am who found Elly's body. One was a very blurred copy and the other crystal clear clearly showing Elly's top ripped from her shoulder and all the way down her right side. In reality the top is destroyed.
This is why the VIFM report would have been so important in 2016 on the clear version of the crime scene photo but there was no report sent to anyone in 2016/17 by the VIFM laboratory!!
The other very interesting point the Dr. Klepp makes when she viewed the clear crime scene photo was Elly laying flat in the position she could not possibly compromise her airways and states;-
"she is on this firm surface and could not compromise her airways laying flat in this position. it is a point that a sand sample from her body was important as her body may have been moved to this area after".
This is not in the coroner's findings that she can’t compromise her airways in this position and Mr. Cain has left this out from this sentence in his findings. I feel it is a very important point made by the South African doctor endorsing the fact Elly’s body was moved after her death.
It would be interesting to have other Doctors’ viewpoints on this.
I did engage Dr. Byron Collins, another pathologist and he agrees that in his view it’s just not possible at this location with the firm surface for the body in that flat lying down position to have inhaled the amount of sand as shown in the radiology imagery.
Note;- Independent Pathologist Byron Collins was not aware at this time of Dr. Klepp’s evidence that the airways were chockablock as this viewpoint from Dr. Collins was stated in 2020 at a meeting I had with him.
c) My next point is the meeting I had with Superintendent chief of criminal investigations in 2018.
I also told the coroner at my oral submissions that I had a meeting with the Mozambique superintendent Mr. Cudzi on my trip to Mozambique in 2018 who attended the crime scene that morning and he informed me at this meeting and states :-
“Elly was Murdered/killed at the main beach and moved to the toilet block. the sand in her mouth was beach sand not the dark sand found at the location where the body was found”
The coroner must not have thought too much of this evidence at my oral submissions as he was still not convinced Elly’s body was definitely moved for a fact after her death.
I knew going into my oral submissions that I needed to really try and prove this point that the body was moved after her death and I tried my best. I thought I had the sand and ripped apart top as solid evidence to say Elly was murdered but obviously not in the mind of Mr Cain. I knew I needed more factual evidence to get the body being moved after death across the line.
That's why the Mozambique Superintendent in charge of the case, comments were so important. That and the fact he even states Elly was murdered and moved after her death to the toilet block which is all on video evidence No 75 given to the court and entered into evidence in 2018 by the coroner’s assistant at the time Mr. King Taylor.
This video evidence proves the Mozambique police knew Elly was murdered right from day one with the chief inspectors comments. The AFP had meetings, exchanged emails and phone conversions with the same chief inspector in 2016/17!!
There is other evidence with plenty of marks and bruising on Elly’s face, side of her neck and back of her head. These abrasions were very prominent when I saw Elly’s body in South Africa on the 18th November 2016.
However the one factor I knew I needed to clarify at my oral submissions was the fact Elly’s body had been moved after her death, the coroner still states this is only a possibility in his findings. It is very disappointing that he did not rate my evidence highly with the meeting I had with the Mozambique superintendent Mr. Cudzi when I went over there in 2018.
I reiterate the coroner has this video with me and the superintendent stating Elly was murdered and her body was moved. The coroner's court is not governed by the rules of evidence here.
We had the ripped apart top and I thought we had the sand as solid facts however the coroner left the ripped apart top out of his conclusion!! The clear crime scene photo clearly shows the top as ripped apart so this photo tells the truth. A witness saw Elly at 11.30 that night and there was no damage to her top at this time so it happened just before or during her death.
This is mentioned in the coroner’s findings but not really given much credit, not as much as it should have as the top is completely destroyed and definitely indicates some sort of an aggressive assault or struggle has taken place before or during Elly’s death.
d) the AFP’s lack of Involvement
First point is the Mutual assistance request as this will concern other austraian families. followed by the deception from the AFP.
I asked Mr Cain if he thought the AFP had enough information to state this was a crime.
Below was his answer and I was really taken back by his answer. I will explain why I was so surprised and it proves that his findings are just one man's opinion.
11 MR WARREN: Your Honour Do you agree that the AFP had enough information to state that this was a crime at the time?
12 HIS HONOUR: Probably not.
You see the AFP not only had a police report, Mozambique autopsy report which all state Homicide but they had the clear crime scene photo of my daughter’s naked body with her top ripped apart which was given to the AFP on the 25th November 2016 by DFAT.
This is an Explicit photo of my daughter’s body which was given to the AFP and they completely ghosted this clear photo with no mention of a ripped apart top in 2016/17. In Fact there has been no mention, No report form the AFP or Mozambique Authorities about any ripped apart top to this day!!
Now the Mozambique Autopsy and police report which both state homicide and obviously the AFP also had this Clear crime scene photo clearly showing Elly’s top is ripped apart.
With all this evidence the AFP had in 2016/17 this is still not enough evidence for the AFP to say we have reasonable cause this is a crime and to review and send the Mutual assistance request.
Obviously Mr. Cain did not think so!!!
I really don’t understand this at all. What more do you require to say this is REASONABLE CAUSE that a crime has been committed here!! However Mr Cain clearly did not understand the process and the requirements here and its not good enough. (There are also more facts about this in my oral transcript blog.)
I spoke about a police report in the AFP action sheet at my oral submissions which the AFP tried to DISGUISE as a Mozambique autopsy report because of the Mutual assistance request. Because this police report proves this to be a crime which is a clarification requirement for the AFP to send a MAR.
In my oral transcript its proven the AFP were still trying to make out this was an autopsy report and I caught them out here with there deception in my oral submissions at the end with the lawyer of the AFP stating this was not a police report but an autopsy report when in fact the facts prove it really is an official police report which states homicide.
This was all in front of Mr Cain in the oral submissions and I am sure he was aware just what the AFP were up to here with the wording in their action sheet. (Mozambique Document )
Mr Cain said to me the initial police report was from the local police and they had limited knowledge or it’s not their jurisdiction. Well it is still a Mozambique official police report from the top criminal Mozambique police (SERNIC) which was sent officially to DFAT and the point here is that the AFP deliberately tried to disguise this police report which states homicide. You see It only states in the AFP action sheet it was a Mozambique document and the death was by suffocation. When in actual fact it was an official police report which states homicide. This is all in my oral submissions in court and I questioned the AFP’s lawyer comments about this to Mr. Cain at the time in court near the end of my oral submissions.
The reason why this is so important is because of the chain of evidence we need to prove the AFP were aware of this police report. This is why they are making out this was not a police report as it is a chain of evidence proof they were aware it was a crime and the Mutual assistance request should have been sent on these grounds.
Surely the clear crime scene photo clearly showing the ripped apart top and autopsy report should have been enough reasonable cause when they obtained it anyway in November 2016 to prove reasonable cause that a crime has been committed.
This is one of the areas that the AFP has clearly been deceitful and this is why I have said they were horrible in the fact they have tried to cover aspects up so people will understand the full gravity of the situation the family was placed in with the AFP.
In the coroner’s findings he states he feels the MAR would not have made any difference.
However this is sheer speculation from Mr Cain ( Coroner) as it was always possible for an official request from our Attorney general to their Attorney general and if they had of said yes to the MAR the Mozambique Attorney general would have instructed there authorities on Elly's case to cooperate with the AFP as I said to Mr Cain this is then an order coming from the top in the Mozambique government informing their authorities to cooperate and allow our AFP to help and offer there assistance where possible or needed. which would have come from the Mozambique Attorney General.
It was also confirmed and stated in the AFP submissions in late 2020/21 a Mozambique government official confirmed it was always possible to have had a joint operation with the Australian authorities through a Mutual assistance request.
We just never sent the MAR in 2016/17.
I then stated to Mr Cain ;-
"surly then this would have made a difference Your Honour Especially in the area for testing of evidence for DNA which is stated in the Mutual assistance act”.
You well may ask why is the AFP behaving in this manner to an Australian family who has just had their loved one die suspiciously overseas.
Well we need to look at just what the AFP were aware of in 2016 to answer this question.
The facts prove the AFP had the clear crime scene photo clearly showing the ripped apart top on the 25th November 2016.
The Initial Mozambique assessment report of the crime scene on the 9th of November has never stated there was a ripped apart top discover at the crime scene scene in fact it states in there most recent report:-
There is on signs of a struggle on the body or around the area at the crime scene.
As the AFP had the clear photo showing the ripped apart top which obviously indicating that a struggle had taken place only 16 days after Elly’s death this made them aware of the Mozambique deception at this point in time as there was no mention of any ripped apart top at this time from the Mozambique police in 2016. In fact there has ever been any acknowledgement by the Mozambique police or the AFP about any ripped apart top ever.
You see the Mozambique police had NO IDEA that the fisherman had taken the photo exposing their deception at 5am that morning ON the 9th November. However once the AFP got the CLEAR photo they then became aware of what the Mozambique police were up to here on the 25th of November 2016.
The AFP did not want to open this can of worms for diplomacy reasons exposing the deception of the Mozambique police as pursuing Justice for the family in their view here would not be in the best interest of all Australians.
This also makes it impossible to have a MAR under these circumstances. This is why the AFP were trying so hard not to expose the evidence which clarifies a review for the MAR that a crime had been committed!!
The AFP can’t be seen exposing other countries’ authorities as they may jeopardize or lose trust with other countries agencies and this may affect their communication channels of trust around the world!! This is why they say it’s in the best interest of all Australians.
E) My next point is the clothes Elly was wearing on the night in question.
A critical factor was Elly’s clothes she was wearing when she died.
I have been told by many detectives that;- Top priority is all the trace evidence at the crime scene.
Now the AFP say they don’t get involved with another country's investigation but the coroner at the time Sara Hinchey had asked the AFP to obtain all of Elly’s possessions as mentioned in their AFP action sheet and the clothes she was wearing were still Elly’s possessions.
Normally the Investigating Police would keep the clothes, especially as the top is ripped apart for DNA testing. However the Mozambique police did not place her clothes into evidence!!! I pointed this out at my oral submissions to Mr Cain on the 11th December 2023.
This then enameled the AFP to obtain her clothes she was wearing as they were her possessions. As the clothes Elly was wearing at the time of her death were not entered into evidence by the Mozambique police because they don’t have the resources for clothes DNA testing which the AFP were fully aware of at the time. Therefore under these circumstances this is basic police work to retrieve the clothes that Elly was wearing and with the advancement of DNA technology available to the AFP in 2016. Therefore the RETRIEVAL of Elly’s clothes she was wearing at the time of her death was VITAL evidence given the circumstances of her death and damage to her top.
It was hot and very humid over there at the time all it takes is one drop of sweat or hand grip on the top with the advancement in DNA technology in 2016!!!
It must be noted;- A MAR was not required for the sand sample from Elly’s body as it was in Melbourne and her clothes are her possessions which were not placed into evidence by the Mozambique police but her clothes were later incarcerated!! We were informed by the the person in charge at the Maputo central hospital that no one came to pick up her clothes after her autopsy in 2016!!!!
The ramifications of the AFP not retrieving or asking for her clothes she was wearing as there is no record in any AFP file of them asking for these clothes is huge today as the Mozambique police had recently stated they have suspects but not enough evidence to charge anyone. This is also not mentioned in the coroner’s findings!
Sand sample taken at the crime scene by the AFP
The AFP had also taken a sand sample 8 days after Elly’s death from the crime scene and at the inquest the AFP officer tried to make out the sand sample may have been compromised as it was taken 8 days after Elly’s death. Really how is it possible that the sand in the area is going to change in 8 days!!! He is only trying to cover himself here as the AFP had every opportunity to take the second sample from Elly's body for comparison in Melbourne.
Why do you take a sand sample in the first instance if not to compare with the sand in the body as the AFP were well aware that sand was a major issue here well before the Melbourne autopsy.
This same AFP officer Mr Scruton was on the ground in Tofo and was informed on the 18th November 2016 at a meeting with the chief Mozambique inspector in charge of the case that they suspected Elly’s body was moved after her death and the Melbourne autopsy was on the 22nd of November 2016. This is now confirmed that the AFP were aware the Mozambique authorities suspected the body was moved four days before the Melbourne autopsy with evidence given at the recent Inquest by Mr Scruton the AFP officer in question in August 2023.
There was plenty of time for the AFP to have organized the second sample to be taken from Elly’s body. This second sand sample from her body was crucial for forensically determining that Elly's body was moved by a third party after her death.
This would have been enough to convince the coroner her body was moved after her death as solid forensic evidence as there was a major difference between both sands. This is really basic police work especially after you have been told by the inspector in charge of the case they suspected the body was moved days before the Melbourne autopsy examination!!!
Elly’s body was in Australia therefore so was the sand for the second sample and the clothes were not entered into evidence. These are still Elly’s possessions. I reiterate a Mutual assistance request was not required to retain both of these critical items of evidence for forensic testing in Australia!!
I also said in my oral submissions to Mr. Cain there was very poor transparency with the family and Australia Authorities and the AFP’s Lawyer objected to this and said that there was good transparency between the family. I told the coroner I can't speak for Nicole Elly's mother, but it has not been good for me, one or two poor letters and some emails over seven years.
The AFP have only been involved in the last year or so because the coroner has instructed them to move heaven and earth, They would not bother otherwise.
The coroner Mr. Bracken when he had control of the case needed to ask the AFP in 2021 to send an official request for them to get involved with a joint operation which was not an official MAR but a personal letter sent only for a joint involvement on the matter between the two countries.
There has been no reply by the Mozambique government because this is not an official request. The Mozambique government is showing us how to do it the right way by recently asking us to send them a proper official MAR to obtain their case file!!!
Some people may not be aware that the Mozambique police have concluded In 2023 with the evidence they now have that Elly was in fact murdered and they are investigating Elly’s case as a homicide. However it was very important that the coroner here in Australia supported this conclusion as it may have had a bearing on the judge over there to continue with finding justice for Elly.
However the Mozambique Judge has obviously been waiting for the outcome here in Australia as he adjourned in June this year. This was to see if they will continue to investigate Elly's case over there with the evidence they have. They have suspects but not enough evidence hence the importance of Elly’s clothes for DNA. I feel with such a low grade finding here in Australia as only a possibility Elly was murdered they may now close the case over there and there will now be no Justice for Elly.
I am more than willing to talk to anyone about this report and I am more than happy to show anyone the concrete facts to prove and support this report. I have all the evidence to prove the facts I state here.
I have facts that the AFP have ghosted evidence by not entering critical evidence into their statements which I have also pointed out to the coroner with my oral submissions on the 11th December 2023.
I really do feel the coroner is protecting the Melbourne autopsy doctor to some degree, also the VIFM and the AFP as they all had the factual evidence in 2016. There are some circumstances with the facts which I feel are not mentioned at all in Mr. Cain’s findings and this just does not add up at all in my book!!!
Note: The reason why I am saying the court is protecting the Melbourne doctor is because the court did not want Dr. O’ Donnell as a witness the one CRITICAL WITNESS which could determine the cause of death if Dr. Klepp had of refused to be a witness which was only days before the inquest that Dr. Klepp did agree to being a witness . My Lawyer and I had sent correspondence and a letter to the court REQUESTING Dr. O’Donnell as a witness AT THE INQUEST. ( see Correspondence on this website)
You see Dr. O’Donnell radiology report exposes the Melbourne doctor as it shows the lungs trees full with sand and high density mass readings of (SAND) in the airways just prior to the Melbourne pathologist autopsy on the 22nd November 2016 from the CT scan.
The Melbourne Pathologists states he did not find any sand!!!
Also I pointed out in my oral submissions and with prior correspondence to the court that the court had very POOR images of the Radiology photos in the brief. I did point this out to Mr Cain and held up a much clearer image showing the Mass of sand at the back of my daughter’s nose at the time during my oral submissions on the 11th December 2023.
The really interesting fact here is Mr Cain has left out of No 39 in his findings when explaining the witnesses that the court did not initially have or want as the court did not want Dr.O’Donnell as a witness and that I had to request that the court change their views and included Dr O’Donnell as a releavent witness.
Note: These above points about Dr. O’Donnell as a witness are also mentioned in my oral submissions and investigation blogs as it is critical for people to understand how the court is able to influence the proceedings.
remember it’s the coroner’s inquest not your inquest and he is running it as he sees fit this was clearly pointed out to me by Mr Cain in my oral submissions. My Oral submissions Transcript pg’s 274- 275
F) further Concluding points of concern;-
The Coroner Mr. Cain has left out vital evidence from his findings.
The AFP were aware of the circumstances of the Mozambique cover up in 2016.
This is the real reason why they were not fully committed to carrying out their sworn duty to defend the rights of all Australians overseas by not supporting an Australian family when in desperate need of their full support and assistance.
It’s very disappointing Mr. Cain has stated he is not critical of the AFP in this matter, he has let the AFP off the hook here and they all just want it now to quietly all go away!!
Paul Warren