Elly Warren's Fathers Report on the Coroner's Findings.

  My report on the coroner’s findings

Note; This report is still work in progress 167 completed of 191.

My report on the coroner’s findings is in systematic order. These are the relevant points of reference from the Coroner’s findings in more detail and clarity ensuring all the relevant facts are mentioned which were overlooked or not explained fully in the coroner's findings.

looking at the coroner’s findings in a lot more detail and looking deeper into these findings, analysing the evidence here with more clarity, the more I became aware of just how much relevant, vital factual evidence Mr Cain has not given weight to and explained with clarity in his findings!!!!

If I had of known this from the start and how difficult it was

going to be with the coroner’s court over the 7 long years

prolonging the inquest. I would never have asked for a

inquest!!!!

Then to have the critical evidence in these findings below, giving no strength whatsoever to the vital factual evidence is really very concerning not just for Elly’s family but other Australian families!!

Some critical points of interest, index below:-

Unfortunately there is far more which has gone on “behind the scenes” which has occurred with Elly’s case!!!! The credibility of the Mozambique police, AFP, DFAT, Melbourne pathologist and the VIFM all come into “Question” at some point, having all had an influence in failing Elly and Elly’s family!!!!

No-132-138, I need to strongly note here below, as this was a very important time at the inquest when my barrister cross examined the Australian honorary consul (DFAT) Mr Gray.

DFAT’s Honorary consul had given false evidence at the inquest,

turning the inquest on it’s head for the family.

No-167, AFP DC Scruton did not carry out his due diligence in not acquiring critical evidence of the clothes Elly was wearing at the time of her death. The importance of this was “critical” as the Mozambique authorities have suspects but not enough evidence to charge anyone!!! As there was a possibility of extracting DNA from Elly clothes this may of prevented Justice for Elly and Elly’s the family!!!!!!

No-178, The AFP camouflaged evidence from the coroner as an active homicide investigation was active from the 10th April 2017 by Mozambique’s top criminal agency SERNIC.

This report will mention the corresponding number referenced in the actual coroner's findings which has been copied in and followed by my explanation with more clarity and detail highlighted.

20. This finding draws on the totality of the material obtained in the coronial investigation of Elly’s death, that is, the court file, the coronial brief, and other additional material that has been obtained in the course of this investigation. I have considered this material together with the transcript of the evidence adduced at inquest, the written submissions of Counsel Assisting, Elly’s family and the AFP, as well as the oral submissions of Mr Warren and the AFP.

21. 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.13

22. In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw. 14 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.

I need to explain first the case of Briginshaw v Briginshaw mentioned above by Mr Cain in his findings. Below is a brief description and it is very important because this matter is used for the basis of Mr Cain’s findings when evaluating the factual evidence in our daughter’s case at the inquest of Elly Rose Warren.

Briginshaw v Briginshaw is a decision of the High Court of

Australia in 1938 which considered how the requisite standard

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 that 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 that the standard is beyond reasonable doubt, and at that standard has found insufficient evidence to support that Elly was murdered!! Even though we do have very strong credible circumstantial and factual 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.

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 own mind after looking at all the factual evidence below and determine if the evidence proves beyond reasonable doubt that Elly was murdered. I certainly feel there is a strong proof of evidence and the Mozambique police agree as they have stated to Mr Cain they are still treating Ms Warren’s death as a homicide after seven long years.

The strength of factual evidence detailed below proves my daughter was murdered beyond reasonable doubt. When you look at all the pieces to the factual evidence systematically in a collective manner, this then pinpoints the facts and adds weight to the strength of evidence forming a critical path, bonding the solid facts together elevating Elly’s death to beyond reasonable doubt that our daughter was in fact murdered.

The factual evidence given at the inquest below in more detail

filling in major gaps in evidence with clarity :-

Dr Klepp (South African Autopsy pathologist) and the Mozambique autopsy pathologist agree on “one major factor of vital evidence” that Elly’s airways were “Packed Chockablock with sand” when they examined Elly’s body. “Chockablock” is the exact word Dr Klepp used at the inquest with how packed she found the sand after her examination of Elly’s body on the 16th November 2016 with her evidence given at the inquest in August 2023. It must be noted that Dr Klepp’s examination was after the Mozambique examination and the airways were still chockablock with sand!!

Dr Klepp further states in evidence at the inquest that, she has seen plenty of cases where people have been buried alive in South African from collapsed gold minds but I have never seen as much packed chockablock sand as I did in Elly’s oral cavity and lower airways as I have in all my 44 years as a pathologist. This is a very big statement given at the inquest by Dr Klepp and it confirms the “magnitude” of the packed chockablock sand in Elly’s airways!!!

I reiterate Elly’s airways were completely packed with sand to the lower levels of the lung trees, “chockablock” and “abundant” as stated by “both” South African and Mozambique autopsy pathologist. This is the basis for the Mozambique autopsy conclusion having initially examined Elly’s body stating this is a Violent death of Homicide. Transcript Pgs. Inquest 24th August 2023  T, 181-182. T 249-256.

The evidence given at the inquest by Dr Klepp is “compelling” and holds weight to the fact its not possible for Elly to breath in all this packed sand “naturally”. Especially given the position of the body in the clear crime photo at the location where Elly’s body was found laying flat with her head and chin resting on top of the firm sandy surface near the toilet block also stated here in evidence by Dr Klepp. Another independent pathologist was sought by the family and he totally agrees with Dr Klepps evidence here, Dr Byron Collins. T 182, 259

The South African autopsy photographs clearly showed marks and bruising all over Elly’s body, head and face especially around the lips of her mouth.  Elly’s t-Shirt was ripped apart from her shoulder and all the way down the right side of her body clearly visible in the clear crime scene photo. This had to have happened some time after 11.30pm that night until Elly’s body was found the next morning at 5am. This is around a 6 hour window of time as a witness had spoken to Elly at 11.30pm that night and states, she was just normal talking with her and her clothing was not ripped apart at this time! Elly’s top is destroyed and it is physically impossible for her to rip the top apart to this degree by herself!! There is also very strong factual evidence which indicates her body was moved after her death to the toilet block location. The factual evidence at the inquest also has ruled out falling unconscious from drugs and alcohol as there were comprehensive toxicology results from South Africa and Australia all “negative”. The coroner has also stated he is satisfied with the circumstantial evidence given at the inquest which indicates Elly was not intoxicated on the night, only having a couple of drinks. A Transcript Pgs. Inquest 22nd August 2023 witness who spoke with Elly at 11.30pm - T, 55-56. (re-enactment crime scene photo attached below.)

Above are the direct facts and strength of evidence.

Surely the weight of evidence is beyond reasonable doubt Elly

was murdered with her head forced down into the sand!!!!

Mr Cain has also speculated in my oral submissions and has stated at the inquest:-

“what difference would it have made if the coroner had the

evidence and clear photo knowing about the ripped apart top

i n 2016/17”. Transcript pgs. 272 My oral submissions.

The family and authorities in having been privy to all this vital evidence in 2016/18 would have given the family some “solid answers” along with the coroner and AFP. This would have provided a good reason with conviction for our Australian authorities and Coroner with these solid facts to act firmly which added more weight to highly suspicious circumstances with the death of our daughter at this early stage in 2016. Therefore applying pressure to the Mozambique authorities with these factual circumstances adding to the fact it was more than likely a crime of an Australian citizen has taken place in their country.

Mr Cain I feel is totally wrong here and I am sure knowing these facts about our daughter’s death in 2016 would have made a difference to the way the investigation was handled from the start having had this knowledge of the facts earlier on with our daughter’s investigation.

This would have also informed Elly’s family of some vital circumstances which we did not know about as the family and coroner did not know some critical evidence of the “clear” crime scene photo until October 2018!!! However one of the top Forensic laboratories based at the coroners court was given this critical evidence the clear crime scene photograph yet no report on this critical evidence was given to the coroner or Melbourne pathologist in 2016/18!!!!             Transcript Pgs. 267-277

The AFP were also given this clear photo in November 2016, “No report” to the coroner on this critical crime scene photograph from the AFP who are totally “responsible” for this crime evidence as the “governing police body” for overseas crime!!!!!!! However the AFP were “fully aware” that the ripped apart top exposed the Mozambique police cover up at the crime scene in 2016. Therefore is it possible this was elevated to a diplomatic issue which required some sweeping under the carpet!!!!

The AFP were asked by the Coroner’s court to do more for the family at a hearing in February 2023 and consequently an AFP commander did go over to Mozambique in May 2023. Note;- It had only taken 7 years for the AFP to send someone over and only because the coroner basically asked them to do more for the family!!!!

The Mozambique Deputy Attorney General states to the AFP commander Smith at an official meeting held in May 2023 in Mozambique that they are still treating Elly case as a “Homicide” after 7 years of investigating and have “suspects” but not enough evidence to charge anyone. The first time the Mozambique authorities stated it was a homicide was on April the 10th 2017 with an official revised police report from “SERNIC” Mozambique’s top criminal agency.

Commander Smith’s report on his trip to Mozambique in May 2023 was sent to Mr Cain on the 19th June 2023 just before the inquest. This report states for the second time officially to the AFP and the court from SERNIC that Elly’s case is still being treated as a “homicide”.  All of the above evidence was proven to be factual evidence at the inquest except for the official revised police report in 2017 stating homicide, which was “camouflaged” from the coroner by the AFP and their lawyer at my oral submissions. This is all proven and explained at the inquest on 11th December 2023 by me to the court in my oral submissions where I attempted to clarify these facts to Mr Cain on the 11th December 2023. Transcript page day 4 of the inquest 11th December oral submissions - T 284 , 291 and 270.

Mr Cain was given my “signed affidavit” on the 17th January 2023. Therefore Mr Cain was fully informed about all the cover-ups by all authorities with my affidavit supported by all the factual background evidence!!! He was also fully aware of all the solid evidence from the clear crime scene photo clearly showing the top is ripped apart exposing the cover up of the Mozambique police and is possibly why its not even mentioned in his findings conclusion!!

My affidavit is under correspondence on this website.

Counsel assist Mr Ross Treverton in his submissions held little weight to the above factual evidence in fact he has addressed some of the facts in a “negative manner” focusing mainly on    Dr Lynch’s evidence at the inquest from their VIFM!!! however Dr Lynch had No idea about the magnitude of Chockablock packed sand. Mr Cain has touched on some of the factual evidence spreading it over pages of findings making it confusing and therefore difficult to follow and piece together, not even mentioning or clarifying critical pieces of evidence with conviction in the coroner’s conclusion to his main findings just saying it's all mentioned above basically.

Mr Cain’s conclusion No 157 page 35;-

No weight of the factual evidence In Mr Cain’s finding conclusion given to the strength of factual evidence of the “packed chockablock sand” in the airways and in regards to the packing of sand with the position and location of where Elly’s body was found. Not even any mention of the Destroyed ripped apart top!!!

I consider this above solid factual evidence to be compelling evidence which was “fully explained” at the inquest and of “elevated relevance” which should have been given more weight in Mr Cain’s Conclusion to his findings.

Relevant page:- Coroners findings and conclusion all on page 35.

c) “the death occurred in circumstances set out above”

I reiterate the critical evidence is all over the place in Mr Cain's findings and the critical evidence is not clearly clarified or given weight in his conclusion!!!

Due to the Submissions of the counsel assist I became fully aware of how important my oral submissions to Mr Cain was and I had Mr Cain agree on three occasions that he totally agreed with two major factors of vital evidence the first was “a substantial amount of packed sand in Elly’s airways”. T250-251. The second was the ripped apart top as Mr Cain clearly states in my oral submissions below;- . T 274-275

“That's not in dispute that the top is ripped”.

I also explained fully all the other factual evidence connected to Elly’s murder with cover ups from our authorities but he chose to ignore these facts in his findings which I can fully prove with supporting facts. Relevant transcript pages from my oral submissions. T 249-255 packed sand, T  256-261 body moved after death, T 261-267 Mutual assistance request, T 268-272 AFP cover up crime scene photo, AFP Lawyer cover up the revised police report. T 284,290-291.         I am sure you will find all of my oral submissions very interesting indeed and it's all facts which I can support. If you were to read my entire oral submissions here as a separate blog on the website I am sure you will have a much better understanding of all the circumstances.

I did not mention the Mozambique cover-up in my oral submissions because I felt there was some hope still that they would do more at this stage after the inquest to obtain justice for our daughter. This may have jeopardized their investigation as we had not heard back from the Mozambique Judge with the matter at this point in time.  I had touched on the AFP cover-up with the clear photo but not directly accusing them in my oral submissions as Mr Cain would have closed me off. Mr Cain had clearly informed me at the inquest it’s not in the scope of the inquest in accusing anyone of wrongdoing. Mr Cain further clearly informed me and said if I have any concerns with the AFP I need to take it up directly with them. T 272, 276, 290, 291.

I have sent the AFP My official report to them detailing all the families’’ discrepancies with them supported by all the background facts with the case on the 27th May 2024 ( which is a Blog on this website) with no reply to date. I have followed up several times with still no reply from the AFP on this report. Also I have sent letters/emails to the Australian government and they keep referring the matter to the AFP!! It is now nearly 2026 and any hope of Justices for our daughter has really just about vanished. However by now exposing all the true facts this may create further interest forcing the Australian government to have an inquiry into our daughter’s death ensuring these unjust circumstances by all authorities concerned do not accrue to other Australian families!! 

After reading all the factual evidence above do you think it's beyond reasonable doubt that Elly was murdered!! If your answer is yes, we then need to ask the question why did the coroner or counsel assist not see it this way?!!! However, are they looking out for the “credibility” of their doctor from the Victorian Institute of Forensic Medicine, AFP and the exposure of the Mozambique police cover up at the crime scene!!!

My re-enactment of the clear crime scene photo taken by the fisherman at 5am is attached below at the bottom. Note, for obvious reasons I can’t show the actual clear photograph of Elly or the South African autopsy photographs clearly showing the marks and bruising around Elly’s head and especially her mouth and lips!!

The solid overview of the strength of factual evidence above is

solid facts holding weight to the factual evidence proving the

Nature and cirumstances surrounding the murder of Elly rose

warren on the 9th of November 2016.

No 30 coroner’s findings On 10 March 2021, the AFP received a request from Coroner Bracken, asking the AFP to make a formal application to the Mozambique authorities to join their investigation. That request was issued by the AFP Commissioner Kershaw to the Director General, Criminal Investigative Service in Mozambique on 8 April 2021. There has been no response (formal or informal) to this request.

Mr Cain has again not explained all the facts here and he was

fully aware that the family was not happy here. I will

explain below. It is also fully explained in my oral submissions

and affidavit to Mr Cain.

This so-called “formal Application” sent by the AFP was not a “Official Mutual Assistance request” (MAR) sent from Attorney General to Attorney General. It was a “personnel letter” sent to the head of SERNIC, the National service of criminal investigation of Mozambique Mr Domingus Jofane by the Australian Federal Police (AFP).

In Commander’s Smith’s official letter/report to Mr Cain on the 19th June 2023 The Mozambique deputy Attorney General “clearly states” they will only accept the “official MAR” between the two countries for the exchange of there casefile indicating how much the Mozambique government “respect” this official process of the MAR.

This was fully explained to Mr Cain by me at the inquest in my oral submissions and that this request by the AFP was not the Official government to government Attorney General request which the Mozambique Government clearly respects, it was only a personnel letter which was sent.

Obviously the Mozambique Government respects the MAR/ACT between our two countries which is in use for all countries around the world to officially use as stated in the Mutual assistance ACT 1987. However what is obvious here, our Australian authorities/government do not respect this official process between our two countries of the MAR even though the Mozambique Government respects this official process!!!

A major requirement for the AFP to send the official MAR is for the country in question to state a crime of an Australian Citizen has taken place!!

The official revised Mozambique police report from SERNIC on the 10th April states Elly’s death as a “crime” as this revised police report clearly states Ms Warren’s death is a “Homicide” to the AFP. Transcript pgs. Inquest day 4 my oral submissions 11th December 2023, T- 261-268.

What is very interesting here in my oral submissions is the AFP lawyer tries to confuse the saturation by stating “its a “Mozambique autopsy report” Mr Warren is talking about” to Mr Cain “not an Official police report on page 13 of the AFP action sheet” given in evidence by the AFP Lawyer!!! However this is in fact an official “Revised” Mozambique police report which states “Homicide” dated the 10th April!!! The Mozambique autopsy report was given to the AFP/SLO much earlier, possibly in 2016 police to police and the court was given the Mozambique autopsy report from the AFP officially in February 2017. This is way before the 10th April 2017!! Transcript pages my oral submissions on the 11th December 2023;- 284/5 and 291 will support these above facts!!

The main point here is it was established as a crime with this “revised” Mozambique police report which is clarification of a “Crime” by the “official Mozambique police authorities (SERNIC)”. As I have said this is then the official requirement for the AFP to go ahead and send the MAR at this time because it’s officially classified as a serious crime of Homicide causing the death of an Australian citizen in their country. The AFP have always maintained and stated there is an active ongoing investigation by the Mozambique authorities!! However the family disagreed how could there be a proper investigation at this point with these two police reports.

Their first report was on the 6th April 2017 and has stated the cause of death as Overdose.     The family was furious with this police report, how can there be any honest investigation into the murder of our daughter with this initial police report (Overdose) and four days later another official police report stating (Homicide)!!! However Mr Cain in speculating again and states in evidence at my oral submissions;-

“what difference would the MAR have made in 2016/17”!!!

However we never sent the MAR for the Mozambique government to agree or not to agree with this official process of the MAR in 2016/17. If the Mozambique attorney general had agreed for our authorities to support their police then this would have made a difference and a more cohesive investigation offering our advanced forensics technology in support would have been more likely at this critical early stage in the investigation. What is very interesting indeed is the AFP submissions below, therefore if we had sent the MAR in 2016/17 there was every chance they would have excepted our support at this time. Transcript pgs. 263/64 T- 31.                

It must also be noted in the AFP submissions to Mr Bracken early 2021 at No 40 that A Mozambique government official has states;-

“it was always possible for a “joint operation” with the AFP”.

Because of this above statement in the AFP submissions Mr Bracken, coroner at the time asked the AFP to send an official request at a hearing in February 2021. But the AFP only sent a personnel letter!!! We have never sent the Official MAR in 2016/25. This is clearly explained in my official affidavit to Mr Cain and my oral submissions.

I feel Mr Cain was wrong here again as he made judgment on our offers of assistance after the early stages of the investigation and I did try to explain to Mr Cain in my oral submissions how important it was to send the MAR early on in 2016/17. However later on everyone was fully aware of the Mozambique cover-up!!! Of course they would not agree later and the AFP did not really want to get involved with a corrupt police force this is why they only sent a personnel letter later as they knew it holds no weight whatsoever and would be easily rejected!!

I reiterate the AFP only sent a personnel letter later when instructed to send an official request for our offer of assistance by coroner Bracken at the time in 2021 and not the official MAR which adds ‘far more weight’ between our two countries!!!  I tried hard to fully explain all of these factual circumstances to Mr Cain in my oral submissions on the 11th December 2023!!! The MAR should have been sent early in 2016/17 before the Mozambique Authorities were aware of their own police cover up in Tofo!!! However the AFP were aware or they suspected  these circumstances in 2016!!!

On the 1st Dec 2018  'Richard Udovenya Mozambique Honorary Consul told News Corp late last week he was unaware of any official application from the AFP or Australian Government for their detectives to help with Elly Warren's Investigation.

This section above on the MAR is really “very important” and

could have made a difference in the very early stages of our

daughter's murder investigation!! if we had of sent the official

MAR in 2016/17 to offer our assistance, then it was up to the

Mozambique government to agree or not before their cover-up

was fully exposed!!!

No 39 coroner’s findings On 30 June 2023, Mr Warren’s representatives requested that I hear evidence from some additional witnesses at the inquest. Of note, Mr Warren requested that I hear evidence from Dr Angela Jorge Miguez, the Medical Examiner from Mozambique. I asked the AFP to make enquiries on my behalf to arrange for Dr Miguez’s attendance. These efforts were unsuccessful, and Dr Migeuz did not give evidence at the inquest. However, their report formed part of the coronial brief of evidence. 40. In respect of the other witnesses proposed by Mr Warren, I determined that I would not be assisted by any evidence they may give. I considered that their evidence would be repetitious of other evidence to be given by other witnesses at inquest and/or that their evidence was not relevant to the issues in scope.

Some “very important facts” have also been left out here by

Mr Cain!!!

No mention above that the coroner Mr Cain did not initially want to call a very important relevant witness in Dr O’Donnell, radiologist who submitted his report to the court in No 39 of Mr Cain’s findings.

Note;- The letter from my Lawyer was “spot on” with how

important Dr O’Donnell was with the matter.

Dr Lynch had No idea about the sand and Dr Klepp had not agreed to be a witness at this time only agreeing at the very last minute, because Elly mother asked her to support the family a couple of days before the inquest. Without these two doctors at the inquest this would have left only Dr Lynch to give evidence and he had “No idea” whatsoever about the sand completely blocking and packing our daughter’s airways chockablock!!!!!

Below is part of a letter, 2.2-2.3  sent to Mr Cain around one week before the inquest from my lawyer explaining the Relevance of Dr O’Donnell the radiologist!! (full letter attached below) 

2.2 Mr Warren is concerned that the absence of Dr O’Donnell as a witness in this matter may lead to the questions of whether sand was present in Ms Warren’s lungs, trachea and larynx, the volume of sand present and the likely impact of that sand on Ms Warren’s cause of death, being “underdeveloped” at the inquest. The radiology report prepared by Dr O’Donnell is complex and we consider the Court would be assisted by Dr O’Donnell being able to fully explain and clarify the matters contained within his report.

2.3 Mr Warren considers the presence of hypertense foreign material in areas of Ms Warren’s lungs, larynx and trachea as identified in the radiology report as critical evidence relating to Ms Warren’s cause of death. We understand that the bright white areas in the images produced in Dr O’Donnell’s report are of very high density. On this basis it appears that the sand identified in Ms Warren’s lungs, trachea and larynx is denser than some of Ms Warren’s bones in the surrounding areas. In our view, this suggests that there may have been a “significant blockage” to Ms Warren’s airways. This is relevant to determining Ms Warren’s cause of death.

This  letter from my lawyer changed Mr Cain’s mind and he called Dr ‘O’Donnell as witness but he was “not happy” about doing this with the below comment made by Mr Cain at the inquest!!!

What was “very disappointing” was Mr Cain's comments below about Dr O’Donnell at the inquest. My legal team and myself all knew we were fighting an uphill battle anyway with Mr Cain but this comment was just not expected at all for such a highly important relevant witness as Dr O Donnell. As it turned out Dr O’Donnell evidence and Dr Klepp’s were both “compelling” at the inquest filling in the gaps in evidence around the sand confirming how packed the sand actually was in our daughter’s airways. However this evidence given by these two doctors at the inquest do not support Dr Lynch’s autopsy report conclusion of “undetermined” at all from the Victorian Institute of Forensic Medicine (VIFM)!! which Mr Cain was obviously very concerned about having to maintain the “credibility” of his doctor and VIFM as he states in a hearing on February 2023 that the VIFM is the states top forensic department!!!

Below is a statement made by Mr Cain at the inquest in 2023;-

Inquest Page 129 T- 29,30,31

His Honour: “Yes.  Let me deal with Dr O’Donnell in the first

instance. He has an input into Dr Lynch’s report and he’s only

here because your client requested it”. 

My Lawyer sent a list of relevant witnesses initially to the court with a brief description why we require them which was requested by the court including Dr O’ Donnell ( Radiologist) at the top of the list along with Dr Klepp and Dr Collins Independent Pathologist , Mr Roos who was a crime investigator from South Africa and was well respected by “Interpol” and both countries.

Mr Roos was working for Nicole (Elly’s mother) and David (Elly’s step father) as a private investigator and was what we all thought a “vital” witness given the circumstances as he was the only one who could give the coroner an “update on the Mozambique investigation” with inside information on the Mozambique casefile. He was mentioned in AFP Commander’s Smith official report/letter sent to Mr Cain just before the inquest in June, which clearly states Mr Roos had a “current case update”  since his last report to the court with information directly from Mozambique on the matter. He had given the court a report previously from 2019 and it was entered into the evidence brief therefore Mr Roos was a proven credible witness for the inquest in 2023 and was in a position to give Mr Cain a “direct update” on the investigation in Mozambique! Mr Roos was not called as a witness!!

Dr Collings as our independent pathologist and had entered a previous report into evidence was also vital and one area he agreed with entirely was the fact Elly could not possibility have inhaled and packed her airways Chockablock compromising her airways with her body in the position it was found laying flat with her head on top of a firm sandy pathway. This concurred with evidence given by Dr Klepp at the inquest. There was also other vital evidence we required Dr Collings to give and clarify at the inquest for the coroner and family in evidence.   Dr Collings was not called as a witness!!

Mr Charlie Bezzina, former Melbourne homicide Detective had been working on the case with me for five years and fully up to date with the facts on the case was also requested by my legal team. He had also submitted a report/Statement to the court. Mr Bezzina also had some updated facts on the case with his absolute experience from a homicide detective perspective on the matter. These witnesses were all mentioned at a hearing on 20th February 2023 with Mr Cain as my barrister informed Mr Cain and stated they were vital for our presentation of facts to the court at the inquest. Mr Bezzina was not called as a witness!!        

The changing of coroners mid stream with Mr Cain taking over from Mr Bracken caused confusion for the family 2022/23 as Mr Cain was just not up to speed with the case as the previous coroner Mr Bracken having been dealing with the case for around 5 years before Mr Cain took over six months before the inquest.  Mr Bracken knew who Dr Collins was and how important he was and asked for a report from Dr Collings as an independent qualified Pathologist with the case helping the family since 2019.  His views were vital to the case as he had been working with the family with the matter for a number of years therefore Mr Bracken was fully aware of his importance and Mr Cain had no idea really of all the background facts. It must also be noted Dr Collings had given my legal team his updated report with more clarity of the factual evidence just before the doctors gave evidence on the 24th August 2023.

A major advantage for us with Mr Bracken was he had experience and background as a homicide detective where he had a better understanding of the evidence with the matter which is probably the reason why he was given the matter to preside over initially.

The family could not understand and neither could my legal team, why Mr Cain did not initially want such a relevant witness as “Dr O’Donnell as a witness”!!!!! I could not also understand why Mr Cain did not want all the other “vital relevant witnesses” who were qualified professionals in their field of expertise as witnesses at the inquest. With so much “mystery in Elly’s case with the gaps in evidence” as mentioned by Mr Cain at the hearing in February 2023, This then surely required these witnesses to cover all the bases and angles here with the matter by having all of these relevant witnesses called!!!

Reading between the lines, I think Mr Cain was looking out for the “credibility” of Dr Lynch, Victorian Institute of Forensic Medicine and the fact the Mozambique authorities had covered up Elly’s murder at the crime scene which the AFP had camouflaged!!!! Therefore he did not want the other doctors and Investigating professional to give evidence adding weight to all the evidence which was “missed/overlooked” by all especially “his” VIFM doctor and forensic laboratory!!!!

I was very concerned at the time and fully aware of this and to some degree my legal team, but they did not directly inform me of these circumstances. My Barrister said, when our request was rejected to cross examine the doctors separately on day three of the inquest, that if we don’t have the finding that Elly was murdered, I had the option to take the matter to a higher court.     I know they were representing me but my legal team were 100% plus confident that the factual evidence and strength of evidence proved Elly was murdered beyond reasonable doubt!!

No 43 Coroners findings Mr Warren’s oral submissions expanded on his written submissions addressing specifically: • the volume of sand found in Elly’s lungs at post-mortem, • whether Elly’s body had been moved post-mortem, • whether a MAR should have been made by the AFP, • the ripped black top seen in the photo of Elly’s body in situ, and • the circumstances in which the photograph of Elly’s body in situ was provided to the Mozambique authorities.

I gave a full explanation of how packed the sand was with extra graphs sent to the court just before my oral submissions explaining the Hounsfield Unit (HU) density of measurement.    With the very high reading of 1290HU at the back of the nose (upper airways) and the density reading at the “time of death” as Dr Klepp’s washing had not dislodged this mass of sand behind the nose. Also the density reading in the Trachea of 947 lower airways and the effect of washing by Dr Klepp was possible because it was in the lower airways having completed the second autopsy before the scan. I explained 1290HU from behind the nose on the graph is equivalent to cement/pottery density.

I spoke about how compelling Dr Klepp’s evidence was around the “packed chockablock sand” as stated in evidence by Dr Klepp and that her autopsy concurred with the “abundance of sand” found in the initial autopsy examination in Mozambique on Elly’s body.  I submitted to Mr Cain that it was highly unlikely Elly had inhaled all this packed chockablock sand into her airways “Naturally” and there would have been a third party involvement here. 

I mentioned Dr O’Donnell had also given compelling evidence stating these density levels were higher than bone density and that both “Lung trees” were completely “filled” with sand.

With regards to Elly s body being moved after her death also having a third party involvement I informed Mr Cain I had a recording of the chief inspector who was at the crime scene that morning and he states “The sand in her mouth was not the dark sand from the area where the body was found”. “The body had been moved there after her death as this is not the place where she was murdered”. I reiterate Dr Klepp also in evidence at the inquest and Dr Collings before the inquest also stated it was impossible for Elly to Inhale the sand to such a degree packing her airways in such manner with the body laying flat on this firm surface with her head on top of the sand on a firm sandy pathway as pictured in the clear crime scene photo!!

The Mutual Assistance Request (MAR) was explained fully in my oral submissions. Mr Cain said “what difference would it have made”. However we never sent the Mozambique Government the MAR who totally respects the MAR process mentioned in the official letter sent to Mr Cain on the 19th June 2023. Therefore we never gave them the opportunity to agree or not to the MAR.   However I knew where I stood as Mr Cain was fully aware at the time of the AFP submissions 2021 sent to Mr Bracken No 40 that an Mozambique government official stated it was always possible for a joint operation with the AFP but they had not received any such request from the AFP.

I fully explained the ripped apart top is ripped from Elly’s shoulder and all the way down her side totally destroyed. It is not possible for Elly to do this extent of damage to her own top by herself. This had to have been from a third party involvement. From evidence given at the inquest we know for a fact the top was not ripped apart at 11.30pm so this happened between the time frame of 11.30pm and 5am when Elly’s body was found by the fisherman at 5am the next morning.

Also including in my oral submissions was a clear explanation to Mr Cain of the circumstances with the clear photo having been given to the AFP on the 24/25th November 2016 by DFAT and how this “clear photo” was never entered into the AFP/SLO’s statement or evidence brief in 2016/18 on these dates with no report to the coroner on this clear photo or ripped apart top!!!

However the “blurred photo” was entered in the AFP/SLO statement on the 13th November!!!  The Victorian institute of forensic medicine (VIFM) was given the clear photo in November 2016 along with the AFP yet NO report on the clear photo and ripped apart top to the coroner in 2016!!! No mention at all in Mr Cain's findings here about his VIFM having the clear photo and not reporting on it to the coroner exposing the VIFM as having this critical evidence in 2016 but doing nothing with it. Note the family was only ever given the blurred photo. I obtained the clear photo from my first trip to Mozambique in October 2018.  This was the very first time the Family and the coroner Mr Bracken were made aware of the clear version of the crime scene photograph two years later!!!!!

Some of the solid factual evidence above is not mentioned in Mr Cain's findings with any real weight or clarity as it’s difficult to ascertain the strength of evidence which is touched on but lost in the pages of his findings. The critical relevant evidence is not even mentioned in his conclusion with any real conviction, weight or clarity!!!!

No 52 coroner's findings. The Mozambique autopsy report determined the cause of Elly's death as:18 a) mechanical asphyxiation; b) introduction of sandy material, obstruction of the upper and lower respiratory tract by sand; and c) direct suffocation.

No 53 coroner’s findings. That report concludes that the medicolegal cause of death is homicide. 19 The examination did not include drug, alcohol or sexual assault testing. Elly’s body was then embalmed prior to transfer to South Africa.

What is vital evidence left out here By Mr Cain  is the Mozambique autopsy also states they found an “abundance” of sand in the airways The “ABUNDANCE” of sand is very important factual piece of evidence as it concurs with Dr Klepps evidence that the sand was still packed Chockablock even when she received Elly’s body giving you some indication of the state of Elly’s body when the Mozambique doctors received her body first, hence the conclusion violent death ,Homicide with so much packed sand they found in Elly’s airways at their Initial examination.

No 60 coroner’s findings. Elly was then repatriated to Australia to the VIFM. On 22 November 2016, Dr Matthew Lynch performed a third post-mortem examination and provided a written report of his findings dated 5 July 2017. In his report, Dr Lynch noted sand in Elly's airways but was unable to confirm that it was the cause of death. He concluded the cause of death as ‘undetermined’.23

Even without Dr Lynch not finding all the sand he had been given two previous autopsy reports concurring and concluding that a large amount of abundant sand was found to be the cause of death obstructing the airways before he submitted his report in August 2017!!!  If Dr Lynch was not sure of the circumstances surrounding Elly’s death when aware of these facts with these two previous autopsy reports stating they both had found plenty of sand causing death why then did he not contact Dr Klepp!!!!

The coroner’s court, AFP and DFAT were all fully aware that I had rung Dr Klepp and that Elly’s airways were “chockablock with sand”. Therefore the court was aware of the packed sand in 2016. After I spoke to Dr Klepp over the phone she even contacted the embassy stating she suspected Elly’s head was held down in the sand. 

Why did no one else contact Dr Klepp in 2016

to clarify Elly’s cause of death!!!!!!!

It’s nowhere near good enough by all concerned, especially the Melbourne pathologist who had the two autopsies telling him sand was a major issue here!!!

I was very concerned at this time with Dr Lynch’s autopsy report because of what Dr Klepp had told me over the phone about the packed sand around two weeks after Elly’s death as Dr Lynches autopsy had concluded the cause of death as Undetermined. This is when I asked for a meeting with the Melbourne pathologist to please explain as it did not add up at all and it crossed my mind did he examine the right body not to find all the sand that Dr Klepp had told me about!!

When I spoke to the Melbourne Pathologist at the family meeting on the 7th September 2017. I asked him, “Why did he not contact Dr Klepp” and he said “we don’t know if she is a forensic pathologist, there are  Pathologists and then there are forensic pathologists”. As it turned out Dr Klepp was more Qualified than Dr Lynch with evidence given by her with all her qualifications stated to the coroner I told Dr Lynch the sand was packed and his reply was:-

“who said the sand was packed no one has said it was packed” I

said both Autopsies found large amounts of sand in the airways

and Dr Klepp told me over the phone she found plenty of sand

packing the airways. (this meeting on the 7th September 2017

with the Melbourne pathologist and family is all recorded by

Myself with consent)

I reiterate Dr Klepp is highly qualified:-

MBBCH degree 1977, Diploma Forensic medicine 1981, Fellowship in forensic pathology 1984. Master’s degree in forensic pathology 1985. Working in Forensic Medicine and pathology 44 years. Lecturer at the university of Witwatersrand.

Why then did he not ring Dr Klepp to clarify the circumstances

of Elly death in 2016/17!!!dr klepp left her number on her at the

bottom of her report!! I did, finding out about the packed

sand with no trouble whatsoever it took me 5 minutes!!!!

I told Dr Lynch all this at the family meeting with him on the 7th September 2017 after the family was given his autopsy report as the family was “very disappointed” with his autopsy report asking for a please explain and this meeting was all recorded!  

To be honest after the meeting Dr Lynch this left me even more concerned!!!!

This left me with no choice but to write a formal letter of complaint about Dr Lynch which I sent to the coroner Mr Bracken. This was just a waste of time as they are all connected in the same building!!!!

This is not good enough by a qualified pathologist at the VIFM!!!!

63. On 18 June 2019, Dr Chris O’Donnell, Forensic Radiologist at VIFM, received a verbal request from Dr Lynch to provide a written opinion on the post-mortem radiological imaging of Elly’s body that was performed on 20 November 2016 at the time of the third post-mortem examination.

This is true however this was because I asked for this radiological imaging to be conducted. I was told this would not be conducted if I did not request it myself!!

No 66 corner’s findings. Following the provision of Dr O’Donnell’s report, Dr Lynch was asked to provide a supplementary report addressing issues which arose from the findings in Dr O’Donnell’s report, including the presence of hyperdense material in Elly’s nasopharynx and bronchial tree. Dr Lynch provided a supplementary report addressing these issues on 19 September 2019.

What was really very interesting here with this supplementary report in September 2019 was that Dr O’Donnell at the time was not asked to explain his own radiology report from the coroner’s court!!!!!! The Court asked Dr Lynch to report on the radiology report in his Supplementary report!! I had also asked the independent pathologist Dr Collings to review the radiology report and he said Dr O'Donnell is in the best position to comment on his own report!!

Why did the court ask Dr Lynch and not Dr O’Donnell to report on his own radiology report!!!! Dr Lynch states its impossible to work out the volume of sand present in the radiology imagery. However the scan clearly shows we have very high density readings 1290HU and 947HU.    (Above Bone Density levels) with both lung trees filled with sand!!! This is not even mentioned in Dr Lynch’s Supplementary report or autopsy report!!! The sand has filled both lung trees to the lower levels here yet no change in Dr Lynch’s cause of death as he still states the cause of death as “undetermined” in is review of the radiology report with this supplementary report in 2019!!!! However the above findings in the radiology scan is “all supported in evidence given by Dr O’Donnell at the inquest with compelling evidence given by him in August 2023 surrounding the high sand density levels and that both lungs were filled with sand.”!!

The one thing Dr Collings did say about the radiology report/imagery was, “The radiology image proves without doubt that the sand exists in the areas shown”.

67. Mr Warren also queried the presence of a tampon which was identified by Dr Klepp at the time of the South African autopsy. On 1 November 2019, Dr Lynch provided a second supplementary report confirming that he had spoken to Dr O’Donnell and that he was unable to identify anything in the post-mortem imaging that might represent a tampon.26

In 2019 when I asked the court what had happened to my daughter's tampon the court could not give me an answer!!! The coroner’s assistant Mr King Taylor at the time had then rang Dr Klepp and it was “very easy” for him to ring her and talk with Dr Klepp directly. Dr Klepp stated to Mr Taylor that she had removed the tampon and placed it inside a plastic bag inside the body for repatriation to Melbourne in 2019. Dr Klepp also stated that Elly was menstruating at this time. Dr Lynch in his first Supplementary report dated the 19th September 2019. states:-

given The coroner’s assistant's conversation with Dr Klepp it is

possible “that the tampon was overlooked by me, can’t be

excluded”.

This is not in Mr Cain's findings and it's in evidence given to the court!! 

69. Following the directions hearing on 20 February 2023, I asked Dr Lynch to provide an additional supplementary report responding to those questions and to assist in my consideration of a cause of death. That report was provided to the Court on 5 June 2023.

70. In the June 2023 report, Dr Lynch made the following observations: Report of Dr Angela Miguez: 27

• Dr Miguez concluded that death was due to ‘mechanical asphyxiation with possible mechanism being strangulation or direct suffocation’ the latter being caused by introduction of sandy material obstructing the upper and lower respiratory tract. The medico-legal cause of death (sic) was determined as homicide. • The relevant findings of the examination included subconjunctival haemorrhage, excoriations of the chin and subcutaneous haemorrhage in the scalp. • There was no evidence of anogenital injury. Intramuscular haemorrhage was noted in the neck and a large amount of sand within the larynx and trachea. • The neck examination appears sub-optimal (at least based on the documentation available) as a layered neck dissection and subcutaneous dissection appear not to have been performed. A bloodless dissection of the neck was also not performed, thus introducing the possibility of artefactual haemorrhage in the neck. • The fact that the bladder was noted to be distended with urine at the time of the second post-mortem examination in South Africa would indicate that the pelvic organs were not adequately examined at the first autopsy. • It is unclear whether blood for alcohol and samples for toxicology and oral and anogenital swabs were taken at the time of the first post-mortem examination. Such specimens should have been taken. • No photos appear to have been taken at time of autopsy.

The Mozambique autopsy clear states they found an abundance of sand and that it was a violent death not mentioned here with Dr Lynch’s Report of Dr Angela Miguez.

Report of Dr Patricia Klepp: 28

• Dr Klepp concluded after examination that the cause of death was consistent with aspiration of sand, the cause of which is not determined at post-mortem examination only. • Toxicological analysis of vitreous humor and urine was undertaken, and no prescription or illicit drugs were identified. • As the body had been embalmed, measurement of ethanol was considered not possible. With the benefit of hindsight, I think there would have been value in attempting to quantify ethanol in blood and vitreous, notwithstanding the previous embalming. A negative result would provide useful information. A positive result would invite a discussion of possible embalming artefact. • At the first autopsy in Mozambique a bloodless dissection of the neck was not performed. This means that this may represent an artefact of dissection (so-called Prinsloo-Gordon artefact). • Whilst Dr Lynch was not critical of the report of Dr Klepp (who has specialist qualifications in forensic pathology, obtained in South Africa, a country with a rich tradition in academic forensic medicine), he noted that he would have postulated a cause of death of ‘undetermined’, and discussed the unusual finding of sand within the airways and its possible contribution to death. • The optimal time to take samples was at the time of the first autopsy and included blood for alcohol, samples for toxicology as well as samples for sexual. These would have included an oral swab, rectal swab, and vaginal swab and blood for DNA. It is unclear whether the facilities were available for sampling and storage. • There was no evidence of sexual assault observed but it is possible that the earlier post-mortem examination or the embalming process may have masked any otherwise observable evidence. • No conclusion can be drawn from the observation that Elly had a distended bladder post mortem.-71 Dr Lynch was also asked to review the photos taken at the time of the South African autopsy and crime scene photos from Tofo, including the photograph of Elly’s body in situ in which she is seen wearing a ripped black t-shirt. These photos did not prompt Dr Lynch to change or alter any of his initial opinions.29

71 Dr Lynch was also asked to review the photos taken at the time of the South African autopsy and crime scene photos from Tofo, including the photograph of Elly’s body in situ in which she is seen wearing a ripped black t-shirt. These photos did not prompt Dr Lynch to change or alter any of his initial opinions.29

Mr Cain has also not entered Dr Lynch’s findings here with in the current Supplementary report with his comments about the ripped apart top in the clear photograph 5th June 2023 at N0 70 above. which is:-

“Dr Lynch states :-I have reviewed the photos and have no additional comment to make”. “I can see that the t- Shirt worn by Elly Warren appears to be torn in the right shoulder region”. “I consider the ripper t-shirt to be a piece of information of uncertain relevance”. “I am not an expert in assessing damage to clothing”. “I am not able to determine when or how the damage occurred to the t-shirt. Moreover, the photos do not depict the damage to the clothing in any detail”!!

I feel these above views from Dr Lynch of the clear crime scene photograph clearly showing the ripped apart top are not practical at all due to the clear photo showing the full extent of damage to Elly T- Shirt. There can be no question that her top is destroyed and that she could not possibly do this amount of damage to her own top by herself!!! We are aware from evidence given at the inquest by a witness that Elly’s top was not ripped apart at 11.30 that night. Therefore we are able to establish for a fact it has happened after this time and before Elly’s body was found at 5am the next morning.

Pathologist Dr Byron Collins has stated in his report given to the family on the 24th August 2023 that-

“if the ripped top damage were present then it could have been

sustained during an assault”.

I reiterate that a witness at the inquest gave evidence that she spoke with Elly at around 11.30 that night and the top was not ripped apart at this time when talking with Elly and Elly’s body was found at 5am the next morning. Therefore there is only a six hour window where the top was ripped from Elly’s shoulder. 

The other very interesting question asked to Dr Lynch in his supplementary report dated the 5th June 2023 and not mentioned in Mr Cain’s findings is-

‘Was a sand sample taken from Ms Warren body during the

Melbourne autopsy”

Dr Lynch reply was-

”A sample of sand was not taken. “No sand was identified on Ms

Warren’s body”!!!

Dr Lynch further states “the Fine particulate matter that was identified on post mortem Ct Scan within the airways was concealed by congealed blood clot as part of the post mortem decomposition and embalming process”.

However the radiology report taken from this CT scan has concluded that there was sand in the airways and two areas of very high density found in the airways of 1290HU at the back of the nose (Cement) and 947HU (Bone) in the trachea and that both lungs were completely filled with sand to the lower levels at the time of the Melbourne autopsy examination on the 22nd November 2016.

This was solid factual compelling evidence given and explained at the Inquest by Dr O Donnell. He had stated that some of the sand may have moved position by the time the Ct Scan was conducted, however the sand is still in this density and position with both lungs full of sand at the time of the Melbourne autopsy examination. Dr Collins states he can't really comment on the radiology report as it is Dr O'Donnell's report but what he could say is the report does indicate the sand is definitely present in the airways.

Dr Lynch was asked was it possible to inhale sand to sufficiently obstruct the airways with regards to Ms Warrens body position laying flat with her head on top of a firm sandy surface.    It must be noted here first this was in his supplementary report just before the inquest therefore before the compelling evidence given by Dr Klepp and Dr O’Donnell about the very high density of sand found and that this sand was packed chockablock in Elly’s airways.

 Dr Lynch’s reply was:-

I would consider it possible. It is difficult from the photos to

form a view as to the precise nature of the sand at the scene.

I reiterate that Dr Klepp with evidence given at the inquest and Dr Collings before the inquest both state it was “impossible” for Elly to fully pack her airways full with sand chockablock in this flat laying position with her head on top of the sand on this firm surface as shown in the clear crime photo. 

What's also really very interesting about this supplement report is there is no mention at all about the abundance of packed sand in the airways causing death from both the Mozambique or South African autopsies. All that is mentioned is Dr Klepps findings that cause of death is aspiration of sand giving no weight to how packed/chockablock it was in Mr Cain’s findings or conclusions, because Dr Lynch had found no sand whatsoever as stated in this report and recorded at a meeting with the family on the 7th Septembers 2017.

I reiterate Dr Lynch states;- “No sand was identified on Ms

Warren’s body”!!!

This is also not mentioned in Mr Cains findings below at No 70 with the latest supplement report submitted to the the court from Dr Lynch in June 2023.

Dr Lynch when looking at the report of Dr Angela Miguez: does not mention the sand found was “abundant” and that the very first point at the top in Dr Angela Miguez autopsy conclusion was that it was a “violent death” Mr Cain has “just” stated, this aspect in his findings !!!! However it is fact as it is all mentioned in the Mozambique autopsy report!!!

This above was in his supplementary report sent to Mr Cain before the inquest.

However the coroner had changed Dr Lynch finding from undetermined due to the compelling evidence from Dr Klepp and Dr O’Donnell at the inquest. If only Dr Lynch had contacted Dr Klepp in 2016 she would have told him the sand was chockablock in the airways then. Therefore sand blocking the airways would have been classified as the cause of death in 2016!!!!

I reiterate Mr Cain had no choice with the compelling evidence given at the inquest by Dr Klepp and Dr O’Donnell to change Dr Lynch’s “undetermined” cause of death to sand blocking the airways by aspirating a large amount of sand.

The South African photos taken around 7 days after Elly’s death do show prominent marks and bruising all over Elly’s face and back of her head, even some on the body. However they are especially prominent around Elly’s mouth and lips!! What was very interesting at the inquest was when Dr Lynch and Dr Klepp had stated there was not a lot of marks on the body to indicate a physical assault. However Dr Lynch was asked by our barrister could this be because of the soft nature of the sand at the beach.  He agreed that a soft surface would make a difference to the impact of marks on the body. He was asked would this make a difference to the marks on the face and are these marks possible if her head was held down into a soft sandy surface his reply was “yes it is possible”. 

This is “critical evidence” given at the inquest and not mentioned in Mr Cain’s findings at all!!!!

I reiterate some vital points not mentioned here are added by me at No 69 above. Also no mention of the tampon which was lost at the VIFM!!! It was mentioned in the supplementary report 2019 by Dr Lynch.

I reiterate Dr Klepp’s qualification as stated at the inquest.

Dr Klepp's qualifications Transcript pgs. 164-165 inquest 2023.

MBBCH degree 1977, Diploma Forensic medicine 1981, Fellowship in forensic pathology 1984. Master’s degree in forensic pathology 1985. Working in Forensic Medicine and pathology 44 years. Lecturer at the university of Witwatersrand.

I don’t understand why Dr Lynch did not make contact with Dr Klepp in 2016 because he didn’t find any sand and he had the other two autopsy reports which had found an abundance of sand blocking the airways. He was fully aware he had Elly’s body third hand. Why not ring Dr Klepp to clarify the facts and cause of death in 2016!!!

Dr Klepp left her phone number with a convenient time to ring her, about her autopsy report!! I had no trouble ringing her a few times!

Mr Cain in No 69 above list a number of points from Dr Lynch raises in his supplementary report but not the ones I have just mentioned above, these are facts in the report and not mentioned with clarity in Mr Cain’s findings from Dr Lynch’s Supplementary report!!!

73. Dr Lynch did not alter his initial opinion as to the cause of

death just before the inquest with his second supplementary

report given to Mr cain on the 5th June 2023.

In Mr Cain's findings from No 88 to 103 below with the doctors it is very confusing as he is all over the place with the doctors evidence given instead of just having the relevant facts on each doctor like I have below systematically with Dr Klepp evidence. As you can see the main points above from Dr Klepp concerning the packed sand are very compelling when put together below relating to the one doctor evidence given at the inquest adding clarity and weight. My Barrister did ask the coroner if we could have each doctor give evidence separately but Mr Cain refused our request.  Mr Cain has not reported on each doctor’s evidence separately and has followed to some degree the format of questioning of the doctors all together at the inquest in his findings which is very confusing to follow for someone not aware of the circumstances!!!!

88. As outlined above, sand of varying amounts was observed at the time of the three postmortem examinations. Dr Klepp stated that in her experience, she had ‘never, ever…seen as much sand in the oral cavity, the trachea and the bronchi’ as she found in Elly. Dr Klepp further stated that ‘for the sand to get down as far as it had, [she] did believe that [Elly] must have been breathing at the time that it was inhaled’ to such a degree that Dr Klepp formulated the cause of death as aspiration of sand which would have created a mechanical obstruction.5

Mr Cain has not added fully and highlighted some very important comments in evidence made by Dr Klepp at the inquest which holds further weight to the fact Elly was murdered these are below. Transcript pgs. inquest 2023 181,182. below are the true facts;-

Dr Klepp states;  “ she had experienced deaths which are related to sand many times before”with “The gold mind’s collapsing in South Africa often burying people alive in sand”.

Dr Klepp states : “I have seen sand but I must say I have never in 44 years seen as much sand in the oral cavity, trachea and bronchi as I did in Ms Warren”. “For the sand to get as far down as it did she must have been breathing at the time of death”. “It was inhaled to such a degree I had formulated the cause of death as aspiration of sand”.

Dr Klepp was also asked about a witness at the crime scene who was asked to identify Elly and he had stated;- “ it was very strange to see her mouth so packed with sand”.

Dr Klepp was asked “was that an appropriate way to describe how you found her”.

Dr Klepps reply was:-

“It is an “absolutely accurate description” her mouth was

absolutely “chockablock” as was her trachea”.

Becausing of Dr Klepps and Dr O’Donnell’s compelling evidence given at the inquest the coroner Mr Cain had really no option but to change Dr Lynch autopsy conclusion from undetermined to Dr Klepps conclusion with the airways so chocablock with sand.

If only Dr Lynch had contacted Dr Klepp in 2016 she would have told him the sand was chockablock in the airways in 2016!!! Therefore sand blocking the airways was the cause of death in 2016!!!!

I reiterate Mr Cain had no choice with the compelling evidence given at the inquest by Dr Klepp and Dr O’Donnell to change Dr Lynch’s undetermined cause of death to sand blocking the airways by aspirating a large amount of sand.

This is “critical evidence” given and not mentioned in Mr Cain’s findings at all!!!!

89. At inquest, Mr Blake Gray gave evidence to the effect that a local resident had told him that when Elly’s body was found, or shortly thereafter, her mouth was packed with sand.53 Dr Klepp agreed that this was an accurate description of what she observed noting that ‘her mouth was absolutely chock-a-block, as was her trachea’.54 Dr Klepp also stated that through her examination process much of the sand would have been removed so that she could complete her examination resulting in significantly less sand in the mouth, throat and lungs when Dr Lynch conducted his examination.

Dr Klepp was asked did she agreed with comments made by the witness Steve (Dive Instructor) at the crime scene. This witness Steve at the crime scene was asked to identify Elly and he had stated;-

“ it was very strange to see her mouth so packed with sand”.

“This was “No Accident”.

Dr klepp’s reply was;-

I “absolutely” agree with the witness as her oral cavity was

“chockablock” when i examined her body!

Dr Klepp was asked “was that an appropriate way to describe how you found her”.

Dr Klepp’s reply was:-

“It is an “absolutely accurate description” her mouth was

absolutely “chockablock” as was her trachea”.

this really confirms just how packed the sand was initially in

elly’s mouth at the time of death, as her body had traveled on

roads for three days to the first autopsy in Maputo on the 14th,

then on to Dr Klepp on the 16th November 7 days after Elly’s

death.  elly’s oral cavity was still,“jammed packed Chockablock”

when dr klepp examined Elly body with the solid evidence given

by Dr Klepp at the inquest!!!!!

90. Dr Klepp also acknowledged that there was some criticism that sand had not been collected in Elly’s case, which she had never had to do previously. Dr Klepp also acknowledged that ‘it was a good point’ as to whether the sand came from where Elly was found outside the toilet block with the rather hard-packed surface or elsewhere.56

Mr Cain has left out some important facts from No 90 here with evidence given by Dr Klepp. below is the correct evidence given by Dr Klepp. Dr Klepp is talking about the taking of a sand sample from the body and the position of the body in the clear crime photo laying flat. below is the correct evidence given-:

“I see quite interestingly enough that there’s some criticism that sand was not collected and I take that point”. “I have never had to do that but it is a good point”. “Weather that sand came from where Elly was found outside the toilet block or whether she was killed elsewhere on a different beach if she was killed and that her body had been transferred then onto that rather “hard-packed surface” that we look at in the picture of the body at the toilet block”

Dr Klepp also clearly states on transcript page 197-198':- “You know ,laying flat doesn’t compromise your breathing”. although having your face down into sand.”

However Dr Klepp also disagrees here with one of Dr Lynch’s main possibilities and states “ you know positional asphyxia for me is if somebody for instance is involved in a car crush. They have moved through the car and they are hanging down between the seats and they can’t breathe. I am not as strongly in favor of a compromised airway from “positional point of view” but her airway was compromised by mechanical obstruction by sand. 

How can it be positional asphyxia when Elly’s body is laying flat with her head on top of the sand on a firm surface in the crime scene photograph therefore there can be no “question whatsoever” her body was moved to this location after her death!!!As its just not possible stated by Dr Klepp here for her to fully pack her airways chockablock with sand in this position at this location on a firm surface.

I reiterate with this solid evidence given by Dr Klepp how is it possible for Elly to pack her airways laying flat with her head on top of the sand at this location on this hard packed surface that doctor Klepp has described in evidence. Why is this not explained in Mr Cain’s findings “holding weight” that her body was moved after Elly’s death!!! Dr Collings also agrees it is impossible for Elly to pack her airways chockablock as described by Dr Klepp in evidence with the body in this flat position and at this location!!

This above evidence form Dr Klepp also questions Dr Lynch’s main possibility of Positional Asphyxia. I can’t understand why Mr Cain would “leave this critical evidence out of his findings” as it is solid evidence which proves it was highly likely the body was moved to the toilet block location after Elly’s death by a third party!!!

There is very strong circumstantial evidence which I have already explained here that weighs heavily towards Elly’s body being moved to the toilet block location after her death!!!

91. When Dr Lynch was asked about his findings in relation to the presence of sand, he confirmed that he specifically commented that there was a small amount of residual sand and that he was not surprised that there was not a large amount of sand remaining after the first and second autopsies.57 Dr Lynch also conceded that when he saw the small amount of sand in the airways, he did not think to take a sample.58

This makes “no sense” at all from Dr Lynch, if this was the case why then did he not ring Dr Klepp in 2016 to clarify the sand and cause of death. I did as Dr Klepp left her number at the end of her conclusion on her autopsy report for anyone to ring and talk about her report!!!

Dr Klepp told me 11 days after our daughter’s murder her airways were packed with sand and I tried very hard to tell Dr Lynch this at the meeting with the family in 2017 asking why he did not take a sand sample!!! (All recorded with Consent)

However Elly’s body is laying flat with her head on top of the sand on a firm surface in the crime scene photograph therefore there can be no “question whatsoever” her body was moved to this location after her death!!!As its just not possible stated by Dr Klepp here for her to fully pack her airways chockablock with sand in this position at this location on a firm surface.

Just to clarify here that Dr Lynch notes a “small residue of sand only” in his autopsy report in the trachea and bronchi. However in a meeting all recorded on the 7th September with consent, Dr Lynch clearly states he found “NO sand whatsoever” and if asked in court he would state this in evidence. (All recorded with consent) This vital meeting with the Melbourne pathologist and family is not mentioned in Mr Cain's findings!!! However, it's in evidence given to the court!!    Dr Lynch supports his statement at the meeting with the family in his latest updated Supplementary report dated the 5th June 2023 to Mr Cain where he clearly states;-

“NO sand was identified on Ms Warren's body”

However in evidence given at the inquest By Dr O’Donnell the radiologist proves there was two areas at the time in Elly’s body which had very high density readings 1290HU at the back of the nose and 947HU in Elly’s trachea of Bone density with both lungs also completely filled with sand at the time Dr Lynch conducted his autopsy examination on the 22nd November 2016!! However there is “NO mention” at all of these areas of high density sand with both lungs filled with sand on Elly’s body in Dr Lynch’s autopsy report!! This is not mentioned in Mr Cain’s findings here in detail at all as it exposes the credibility of his VIFM doctor.

92. Dr O’Donnell also gave evidence about the findings from the post-mortem CT scan. Whilst he could not explicitly say that he saw sand in the imaging, he did see hyperdense, white material that has an appearance that is certainly consistent with sand. He noted that the material was seen in the back of the nose, and in the airways of both lungs, all the way down to the smaller bronchi within the lungs.59

Dr O’Donnell evidence was also “compelling” and there is no mention or weight given to the actual factual evidence given by Dr O’Donnell here in Mr Cain’s findings or clarity given to the very high density readings in his findings. Transcript pgs. 234-235,236,237

Mr Cain states here:-

“Material was seen in the back of the nose”

Mr Cain has not fully clarified this mass of sand found at the back of the nose!!!

Dr O’Donnell is asked on transcript page 234, what is the density reading at the back of the nose and he states “1290HU” (Hounsfield Unit of Measurement). To put this high density reading into “perspective” it is equivalent to “cement density” which I showed and fully explained to Mr Cain at my oral submissions with graphs. As it is in the upper areas Dr O’Donnell states “it has not been dislodged by the washing by Dr Klepp”. This means it is highly likely this is the density level of sand at the time of death!! Which is at the back of the nose. This is critical evidence given under the circumstances of Elly’s death!!! This concurs with Dr Klepp’s evidence that the airways were chockablock with sand.

Dr O’Donnell is asked to put the 1290HU into Laymen’s terms by my barrister. “You can see other white structures around it that’s bone and that density is greater than or equal to bone”.

There was another density reading in the trachea of 947HU however this may have been compromised with the washing by Dr Klepp as it’s in the lower airways. This proves these very high density mass areas were there when Dr Lynch examined Elly’s body but he did not find these masses of high density sand in his examination of our daughter!!!!

Dr ‘O Donnell was also asked on transcript pgs. 237 about the lungs, “both lungs are in a plastic bag in the chest so you can see a trunk with branches that are the airway trees of the lungs and those airways are “filled with this material” (sand). Filled?  “filled yes” Dr O’Donnell states for the second time at the inquest.

Dr Lynch did not also report that both lungs were filled with sand in his autopsy report and it is highly likely the reason for Mr Cain not to fully Clarified this evidence due to the fact his VIFM doctor did not find these high density levels of sand or both lungs filled with sand as it is not in his autopsy report!!!!

This is critical evidence stated by Dr O’Donnell which is not

fully Clarified or mentioned by Mr cain in his Findings.

93. The Mozambique medical examiner found the cause of death to be ‘abundant sandy content in the airways’.60 Similarly, in her report, Dr Klepp indicated that the cause of death was ‘consistent with aspiration of sand, the cause of which is undetermined’.

The “Abundant” sand found in the Mozambique autopsy is mentioned here Briefly but not in Mr Cain’s conclusion.

He states Dr Klepp’s cause of death but has given no importance here with the sand being Aspirated to the point of packed Chockablock. This is a vital key element here not mentioned.

Dr Klepp has stated she can’t determine the manner of death. She is only in a position to comment on the body that she examined. Dr Klepp told me and this is “very important” She is in no position to make comment on the manner of death because she does not have all the evidence with the matter, only the cause of death she can determined as the manner of death is up to a judge weighing up all the facts which are connected and had contributed to the death!

94. Dr Klepp gave evidence at inquest to the effect that it was clear that Elly had aspirated a large amount of sand which caused a mechanical obstruction and that she was alive at the time she breathed it in.62 In response, Dr Lynch stated ‘I don’t think that Dr Klepp and I are actually too far apart …’63 noting that he concluded the cause of death to be undetermined as he was unable to identify a specific pathological or toxicological process that could explain Elly's death.64

Dr Lynch had the Pathological process given to him when he was given Elly’s body as she still had very high density levels of sand in the airways at the back of the nose 1290HU and also bone density 947HU recorded in the trachea with both lung trees filled with sand as stated in evidence by the radiologist at the inquest in 2023. Why did Dr Lynch not find all this high masses of Density (sand) in these areas and that both lungs were completely full with sand at the time he examined Elly’s body as the radiology scan proves this is a fact, Mr Cain should have asked Dr Lynch this question at the inquest!!!!!This is why it was so important for my legal team to have cross-examined each doctor separately but Mr Cain denied our request!!

Dr Lynch may not of identified a specific pathological process to Elly’s death as he found no sand whatsoever. However with the compelling evidence from Dr Klepp at the inquest around the chockablock sand this certainly gives us now a confirmed pathological process of the cause of death and the toxicological element all returned negative results from South Africa and Australia forensic laboratories. Dr Klepp and Dr O’Donnell filled in the “gaps in evidence” we had before the inquest with compelling evidence given with the sand packing the airways Chockablock!!

95. Dr Lynch commented that the presence of sand in Elly’s airway invited the question of why the sand was in her airways which in turn invited the subsequent question of whether Elly breathed it in and why she was in the position to do so. Dr Lynch suggested three possibilities, including that:6

I could understand Dr Lynch here as he found “no sand whatsoever” but Dr Klepp has stated the mouth was chockablock with plenty of sand found further deep down filling both lungs.          The packed abundant sand is also stated in the Mozambique autopsy all the way down filling up her airways causing death and highly likely why they determined it was a violent death homicide.

It has to be impossible for Elly to pack her airways to such a degree from just falling over in the sand for whatever reason!! I am sure this is just not logical or practical to say this given these circumstances as the factual evidence proves it's too packed for her to breath in all this sand naturally!!  We need then to add all the other factual evidence here the position of her body on a firm surface laying flat with her head raised from her chin resting on this firm surface where Elly’s body was found, which Dr Klepp mentions with her evidence given and with her top also ripped apart.!!! Surely these critical factors placed all together are highly suspicious circumstances adding weight to the fact that it’s beyond reasonable doubt Elly was murdered!!

I also reiterate that Dr Klepp states it up to the judge to determine the manner of death taking into account all the circumstances associated with the death. 

96. Dr Lynch stated that he could not elevate one of these scenarios to the ‘italicised cause of death’. 66 Dr Lynch did agree that there was sand within Elly’s airways, suggesting that around the time of her death she was breathing and there was particulate material that entered her airways, and it may have contributed to her death.

After the “compelling evidence” from Dr Klepp and Dr O’ Donnell this made no sense at all from Dr Lynch. As he States “IT may have contributed to her death”!!!

97. Dr O’Donnell also gave evidence to the effect that he had seen one other scenario where there was a similar appearance of sand found in the airways that being when bodies are found in the water in coastal situations where there is waves and sand or in fast moving water ways.67 In those cases, Dr O’Donnell stated that there can be ‘quite marked filling of the airways by…sand-like material’.68 Dr O’Donnell also commented that it may be a remote possibility (and that he was not saying that it did happen) that Elly was in the water at some stage and then moved to the position that she was found in.69

This really has no relevance to the matter whatsoever!!

It must be noted Dr Klepp stated there was no seawater or water found in the body. Both autopsies have not said the body was in water or seawater!!  Not sure why Mr Cain has mentioned this as it was never a possibility!! Maybe he has to cast more doubt with more possibilities but seawater or water was not found in the body at all with all autopsy examinations!!!

98. In relation to the mechanism of death, the Mozambique autopsy report describes Elly’s death as a violent death with two mechanisms of asphyxia that being chocking and direct suffocation.

Mr Cain has mentioned here the Mozambique autopsy states “Violent death” but this evidence is all over the place. The report on their autopsy should be explained altogether in an orderly manner.

99. Dr Klepp stated that Elly’s airways were compromised by a mechanical obstruction by sand.70 Dr Lynch, noting the finding by Dr Klepp in her examination of a large amount of sand in the upper airway, agreed that this would cause another impediment to breathing in the form of upper airway obstruction. 71 Dr Klepp and Dr Lynch both agreed that they are unable to settle on a mechanism of death and could not confirm whether the death was accidental or homicidal.

I must say I was a little surprised with Dr Klepp’s comment here but not totally as Dr Klepp and I did not see eye to eye as I was very upset with Dr Klepp over her not following up on the virtuous humour eye sample to test for Elly’s BAC.

Dr Klepp and Dr Lynch both agreed that they are unable to

settle on a mechanism of death and could not confirm whether

The death was accidental or homicidal.

With the compelling evidence given by Dr Klepp and Dr O ‘Donnell it’s impossible for Elly to pack her airways to such a degree as described by these two doctors with evidence given at the inquest, especially at the location where Elly’s body was found laying flat with her head on top of a firm sandy pathway!!!!

Mr Cain needed to look beyond the doctors opinions and

evaluate all the evidence and not just the medical evidence

with Elly’s case, as there is compelling factual evidence

surrounding the packed chockablock sand with weight also

added from solid Circumstantial evidence with the

circumstances surrounding “the mechanism of death” of our

daughter murder in Mozambique 2016!!!

100. In reaching my conclusions with respect to the cause of Elly’s death, I acknowledge that there are gaps in the evidence which relate to the cause of death which have not been resolved in this coronial investigation including the absence of toxicological forensic samples from the autopsies in Mozambique and South Africa. I also acknowledge whilst Dr Klepp and Dr Lynch are critical of the technique used by the Mozambique medical examiner, there remains a question about the observation of the bruising observed on Elly’s neck.

I really don’t know what Mr Cain is talking about here with the cause of death!!!! As we have established the cause of death with the compelling evidence at the inquest which did fill in the gaps for Mr Cain to change the Melbourne pathologist finding of Undetermined!!!

However the manner of death also has solid evidence from the inquest also filling in gaps in evidence and when putting this factual evidence altogether, the strength of this evidence weighs towards the fact it is beyond reasonable doubt that Elly was murdered.

This comment from Mr Cain is so out of tune with the

Compelling evidence given by Dr Klepp and Dr O’Donnell as all

the gaps in evidence surrounding the packed sand in Elly’s

airways causing her death were resolved with evidence given

at the inquest!!!

Unfortunately both Dr Klepp and Dr Lynch have stated the Bruising on the left side of the neck was not examined properly by the Mozambique pathologist therefore it is inconclusive!!!

What Toxicological samples made such a difference the only one I can think of was Elly’s BAC.

This would not have mattered anyway with the circumstances of the “Compelling Evidence” given with how packed the sand was as mentioned by Dr Klepp and the Mozambique doctor stating the sand was abundant. It is impossible for Elly to pack her airways to such a degree even if she was fully intoxicated especially at the location where the body was found laying flat with her head on top of a firm sandy pathway. We also need to take into consideration the ripped apart top totally destroyed. Elly can't do this amount of damage to her top by herself on her own!!!!! Dr Byron Collins (Pathologist) also totally agrees its impossible for Elly to pack her airways to such a degree especially where and how the body was found! Dr Collings also agrees here with Dr Klepp with evidence given at the inquest!!

Therefore this makes no sense whatsoever from Mr Cain and it's very disappointing for the family for him not to evaluate the weight and strength of all the solid evidence together filling in most of the “gaps in evidence” than my oral submissions I also informed Mr Cain that there has not been a death recorded in Australia since recording of deaths have been taken over 60 years from someone just falling over into sand packing their Airways to such a degree causing death whether Intoxicated or not, or for any other reason!!! Beach parties occur all the time around Australian beaches yet not one death in 60 years to this day from falling over into sand!!! Cave In’s yes where people have dug a cave in the sand and possibly a very young child But no adults died from just falling over into sand!!!

I reiterate I was very surprised with Dr Klepp here as her evidence surrounding the packed Chockablock sand all the way down the airways which concurred with the initial autopsy report from Mozambique is compelling, therefore Surely it was impossible for Elly’s to pack her airways to such to such a degree on her own!! The doctors here are only taking the examination of the body into account and not all the other factual evidence into account surrounding Elly’s death!! Dr Lynch had no clue whatsoever as he found No sand!! This was up to Mr Cain to decide the manner of death taking into account all the factual evidence.

The Mozambique Autopsy report and their top criminal department SERNIC have stated all along its a homicide in 2017/17.

The interesting point here is why did the Mozambique doctor say it’s a “violent death” without hesitation. This was the initial examination and if the sand was still chockablock in the mouth and airways when Dr Klepp got Elly’s body it must have been very packed in with sand stating “direct suffocation” when they examined Elly first hand five days after her death on the 14th November 2016. A violent death, packing of sand and Elly’s face had bruising and abrasions very prominent around her mouth and lips indicating it's possible her head was held down as she struggled to lift her head from the sand. These marks are clearly visible from the South African autopsy photos taken of Elly’s face on the 16th November with bruising also on the back of her head. One side of her neck also looked like it had some bruising but the doctors said without it being examined probably this was hard to establish.

This case goes beyond the medical reports as there is so much

solid circumstantial evidence which is related to Elly’s manner

of death it has to be beyond reasonable doubt Elly was

murdered!!

Note:- No Mozambique doctors, officials or police have mentioned that the T-Shirt was ripped apart in their autopsy report, police reports or Government letters/reports. I do realize with the autopsy this is a medical report on the body here Mr Cain is mostly talking about but under the circumstances of Elly’s death it becomes critical and relevant to piece together the weight and strength of all the evidence.

I reiterate I feel Mr Cain has held too much weight to the two doctors opinions surrounding the mechanism of death!!! I feel he should have looked beyond the doctors. Dr Lynch really had no idea about the packed sand and I did not want him as a witness for this reason because i could not see him as relevant. My Lawyer said the court will want him as he has completed an autopsy report. However Dr Lynch had Elly’s body third hand. Dr Klepp’s and Dr O ‘Donnell evidence given at the inquest I feel was compelling when filling in the gaps surrounding how packed the sand actually was in Elly’s airways. This is why the first autopsy had no hesitation in stating it’s a violent death homicide!!!!

101. Both Dr Klepp and Dr Lynch in their post-mortem examinations observed abrasions to Elly’s knees, face and nose. Both forensic pathologists could only speculate about the likely cause of these injuries. The possibility that these injuries were caused or contributed to by the actions of another person or persons is not excluded by either of the forensic pathologists and they were unable to reach a conclusion about this from their examinations of Elly.

Mr Cain has left out some vital evidence here as well.

The South African photos taken around 7 days after Elly’s death do show prominently marks and bruising all over Elly’s face and back of her head, even some on the body. However they are especially prominent around Elly’s mouth and lips!! What was very interesting at the inquest was when Dr Lynch and Dr Klepp had stated there was not a lot of marks on the body to indicate a physical assault. However Dr Lynch was asked by our barrister could this be because of the soft nature of the sand at the beach.  He agreed that a soft surface would make a difference to the impact of marks on the body. He was asked would this make a difference to the marks on the face and are these marks possible if her head was held down into a soft sandy surface his reply was “yes it is possible”. 

What’s very interesting here is Dr Klepp had phoned the Australian embassy in Pretoria the day after I spoke with her on the phone and informed them of her initial findings on the 21st November 2016 that:-

Dr klepp Highlighted the marks especially around Ms warren

Facial injuries, particularly  bruising and abrasions around

her mouth, had become more marked with time and suggested

that Ms Warrens had been held face down in the sand resulting

in death by aspiration!!!

Dr Klepp had changed her views from her Initial obversions with her evidence given at the inquest in 2023. Dr Klepp has always stated it’s up to a judge to preside over taking into account all the evidence to ascertain the cause and manner of death given the circumstances surrounding Elly’s death.

DFAT had sent to the family by email on the 13th December 2016 with Dr Klepp’s statement above!!!

102. The post-mortem examinations also provide no indication as to where Elly died, including whether it was where she was found or if she been moved to that location at some time after her death. The evidence from the medical examinations provides no assistance in addressing these questions.

Unfortunately Dr lynch did not take a sand sample from Elly’s body. The radiology report clearly shows there was enough sand to take a proper forensic sample. The AFP/SLO had taken a sample from the crime scene toilet block around one week after Elly’s death to compare with the sand in Elly’s body. The AFP/SLO states this may have changed however there is a big contrast in the sand and colour between the toilet block sand and the main beach sand which the chief inspector noticed when he attended the crime scene on the morning of the 9th November 2016. Therefore this sample if analysed with a sample from the body would have had a high degree of determining the difference between the two sands. The toilet block sand was dark, dirty sand and the main beach sand was yellow in appearance.

Also in my oral submissions I informed Mr Cain that the chief Mozambique inspector had stated Elly was not killed at the location where the body was found because the sand in her mouth was not the same sand found at the location the body was found! Therefore there is a very big difference between the sand at the toilet block and the main beach sand as the chief inspector had noticed this at the crime scene.

103. Having considered the reports of Dr Klepp, Dr Lynch and Dr O’Donnell and their oral evidence at inquest, I accept the opinion of Dr Klepp that the cause of death is ‘Consistent with aspiration of sand the cause of which is not determined at post-mortem examination’ over the opinion of Dr Lynch that the cause of death was undetermined.

Mr Cain had no choice here but to change Dr Lynch’s

undetermined “cause of death” Conclusion after 7 years with

the compelling evidence given by Dr Klepp and Dr O’Donnell at

the inquest, with the sand packed chockablock and very high

density levels with  both lungs filled with sand in Elly’s

airways causing her death!!!

That turned out to be really frustrating for the family was the

coroner’s court system and process taking 7 years for the

Australian court to make judgment on Elly’s cause of death

because the Melbourne pathologist’s lack of due diligence in

obtaining the cause of death in 2016!!!!!

117. Due to this, the group bought some drinks and moved to sit on the sand a few meters away from the bar. Whilst they were sitting on the sand, Elly walked round the corner. One of the group members then asked Elly where she had been, and Elly replied ‘looking for you’ before she walked towards Victor’s Bar.81 At inquest, Jade stated that she assumed that Elly
would get a drink from the bar and come back and sit with the group on the sand. 82 Jade also gave evidence to the effect that Elly appeared to be normal and that there were no signs of bruises and that she did not recall her clothing being ripped.83 That was the last time that anybody in the group saw Elly alive.

118. The group was joined for a short time by the owner of Victor’s Bar. Jade recalled that the group spoke about Elly and assumed that she had gone home to the Periango Backpackers.84 Jade estimated that this was at around 11.00pm or 11.30pm. The group remained on the sand near Victor’s Bar until closing at around midnight.

This is a critical time around 11.30pm as it was the last time her Friends saw Elly alive. Jade Stated;-

“Elly looked and behaved normal and said she did not notice

her clothing ripped apart at this time because she definitely

would have noticed something like that”.

Therefore it's very important to state what Jade really did say when giving evidence at the inquest below. Transcript Pgs. 55, 56 Inquest day one 22nd August 2023.

123. At around 5:00am that morning, Elly was found by a local fisherman deceased in an area adjacent to a toilet block near the marketplace at Tofo beach.

However not mentioned here in Mr Cain's findings at No 123 is this fisherman had also taken a photograph of Elly at the toilet block clearly showing her ripped apart top at 5am. This is critical evidence of the crime scene showing “vital evidence”. Why is it not mentioned here in Mr Cain's findings under the heading of Events immediately proximate to death then. Because this clear photo exposes the Mozambique police cover up as it clearly shows Elly’s top is ripped apart. This is not mentioned by the Doctor and inspector who attended the crime scene that morning and it is not mentioned in any police report form Mozambique or the Australian authorities to this day!!!!

FURTHER INVESTIGATIONS POLICE INVESTIGATION IN MOZAMBIQUE

124.Elly’s death was reported to local police in Tofo and they commenced an investigation. The Operational Patrol team of the then Criminal Investigation Police (CIP) headed by Mr Jorge Miguel Cudzi, Criminal Investigation Inspector and Head of the Department of Investigation and Prosecution (Inspector Cudzi) attended the scene to inspect and examine the location.88

125. The evidence suggests that the CIP observed Elly to be lying down on her stomach with her upper limbs folded in a “V” shape below her face. Her lower limbs were said to be stretched out and half open, with her underwear down to her knees, she was wearing a black blouse and her nostrils and mouth on the ground facing the southeast.89

126. From this examination, the CIP technical team concluded that Elly’s death was due to asphyxia but given the complexity of the case it was determined that they would proceed with an autopsy for the purpose of determining the cause of death.90

127. In this regard, a report from the National Service of Criminal Investigation (SERNIC) states that the initial steps in the investigation undertaken by local police were as follows: • assigned officers to isolate and protect the scene, • inspected the scene, • transported Elly’s body to the morgue located at Provincial Hospital of Inhambane, and • on 11 November 2016, Elly’s body was transported to the morgue of the Maputo Central Hospital where the autopsy could occur.91

128. On 30 November 2016, a team of investigators from the Provincial Director of SERNIC went to Tofo to monitor the investigations that were being conducted.92

129. The SERNIC report provides a short summary of the information obtained through the investigation of Elly’s known movements prior to her death as well as a summary of the autopsy report from the Forensic Medicine in Maputo. The SERNIC report concludes that ‘the case is a homicide and is currently in the judicial inquiry stage’. 93

130. In April 2017, Chief Inspector Januario Cumbane, Director of Investigations SERNIC took over the role of primary investigator.94

131. I also note that Dr Gracio Adbula of GCS Lawyers and Consultants was appointed as the next of kin advocate in Mozambique

It must be noted above here again the clear photo of the ripped

apart top is not mentioned in the Mozambique investigations in

the coroner’s findings!!! however this clear photo was given to

the chief mozambiquie “Miguel Cudzi” mentioned above by the

AFP/SLO stationed at the Australian embassy in Pretoria on the

8th December 2016 as it’s all stated in an official letter by DFAT.

Why has Mr Cain not mentioned this critical evidence here!!!

Because it’s not mentioned in any Mozambique police statements

or reports to this day which exposes their cover-up!!!!!

INVOLVEMENT OF THE AUSTRALIAN GOVERNMENT

132. Following the report of Elly’s death to the Australian Government, steps were taken to gather information and provide assistance to Elly’s family.

133. On Thursday 10 November 2016, Mr Blake Gray the former Australian Honorary Consul in Mozambique was contacted by a colleague from the Australian High Commission in Pretoria, South Africa who notified him of the death of an Australian citizen in Tofo. As Australia does not have a full-time presence in Mozambique, Mr Gray was asked to assist in obtaining further information.95

134. Mr Gray was in the Australian Honorary Consul role between 2016 and 2020 in a voluntary capacity. His role mainly involved assisting Australians with passport and visa renewal documentation, supporting official Australian Government visits and provided input for the DFAT Smart Traveller guide annually. DFAT provided a small stipend to Mr Gray. He reported to the DFAT Assistant Secretary based in Pretoria.96

135. On 12 November 2016, Mr Gray drove to Tofo and stayed overnight to gather information about the circumstances of Elly’s death. He spoke to a number of people in an effort to obtain information, including a local fisherman who had discovered Elly’s body and had taken a photo at the time. This photo could not be shared electronically so he took a photo of the photo on his phone. This relatively poor-quality photo was provided to the High Commission in Pretoria by Mr Gray. 97

what is not mentioned here by Mr Cain is that the fisherman

before or just after Mr gray had left Tofo on the 14th

November had given Mr Gray the Clear photo clearly showing

the ripped apart top.

This is a “fact” as there are three official “letters two from DFAT and the other is from the AFP” confirming each time that Mr Gray had been given the clear version of the photograph taken by the fisherman either just before he had left Tofo or just after around the 14th November 2016!!! these official  letters state Mr Gray handed over the Clear photo exposing all the evidence of the ripped apart top to the High Commission in Pretoria after already providing the first version of the photograph which was of Poor-Quility!!! the high commission passed on the clear version of the photograph to the AFP on the 25th November 2016!!

There are solid facts in these official letters which prove without question Mr Gray has not told the truth in evidence at the Inquest turning the inquest “on its head” for Elly’s family at this time!!!! There is also a very good motive for Mr Gray not to tell the truth at the inquest about the clear photo which is fully will be fully explained in another blog.

137. Mr Gray recalled that Steve told him ‘that the sand in Elly's mouth seemed to be very pact’ 98 and that it was his opinion that Elly’s death was not an accident as the sand pact in Elly’s mouth was not consistent with an accident. In his evidence at inquest, Mr Gray sated that there were a lot of strong differing opinions about what had happened to Elly with some people saying that it was an accident and others convinced it was not. Others suggested that she may have been abused after she collapsed.99 Mr Gray confirmed that he did not hear any reports of Elly’s body being moved until he read that information in media reports.100

Mr Gray had also talked to a vital witness at the crime scene Steve, a “dive instructor” who was asked to identify Elly at the crime scene on the morning of the 9th November 2016. This is clarified at 88-89 above.

It must also be noted on the weekend of the 12th-13th November 2016 that everyone at Tofo had reported to Mr Gray that this was an “accident”!!!

there had been no mention to Mr gray of a ripped apart top

form any locals or Steve, who identify Elly’s body at the crime

scene on the morning of the 9th November 2016!!!!

138. Mr Gray reported the information that he had obtained to his colleagues at the Australian High Commission in Pretoria which included a list of individuals that he would have liked to have spoken to, such as those that were first on the scene. Mr Gray subsequently left Tofo and did not have any further involvement in Elly’s case.

In Mr Gray’s initial report there is no information about any photograph given to him by a fisherman!!! Mr Gray had sent his report to his colleagues at the Australian High Commission in Pretoria, (Jessica Carbutt). In Mr Gray’s report there was also no mention of a Clear photo or “ripped apart top” which can be clearly seen in the clear version of the photograph!!!

Steve the witness did not even “report Elly’s top ripped apart” and he was asked to identify Elly and clearly he had taken a very close look of Elly’s body at the crime scene that morning to see the packed sand in her mouth!!

Mr Gray has stated below he was in Tofo on the 12th and 13th of November 2016, before leaving on the 13th and taking;-

“ON further part in the case after leaving Tofo for work on the

14th November 2016”!!! this is clearly not true!!!

Mr Gary clearly states;-

“He left Tofo for work on 13th November and did not have any further involvement in Elly’s case as stated above and documented by Mr Cain in these findings.

However as stated in an official afp letter to Mr Cain,

Mr Gray had made “incidental contact” with the AFP/SLO on the

17/18th November “in Tofo” handing over “critical photographic

evidence” To the AFP, Dc Scruton at this time.

This is “further involvement” which was very important and “Critical” at this time by Mr Gray with Elly’s investigation !!!! Mr Gray also lives a 5 hour drive from Tofo in Vilankulos!!!!

This is where Mr Cain has not documented critical evidence given by Mr Gray at the inquest but what Mr Cain did not realise I think, was Mr Gary had already not told the truth above with his evidence given and it’s all about the clear version of the photograph the fisherman also gave Mr Gray!!!

However Mr Gray has not told the truth more than once at the inquest and this above becomes “critical evidence” which should have been mentioned in Mr Cain’s findings. Therefore I will fill in the gaps below!!!!

Transcript page 116- 117-124 Mr Gray clearly states below he stayed the night in Tofo on the 12th and left for work on Sunday the 13th of November 2016 :- T 117 (L-2-6)

Mr Gray States in evidence;- “ I stayed there overnight and returned to Vilankulos the following day. “This was my only involvement with the matter” ,other than meeting a couple of years later with the Mozambique police in Maputo which Stacey walker also attended”

“This is clearly not the Truth by Mr Gray in evidence given at the

inquest”. This is the first time he did not tell the truth.

What is very interesting on Transcript page 124 (L-12-13) Mr Gray states;- “I think there was representation from the high commission a few days afterwards.” However Mr Gray already knew this as he was there in Tofo at this time on the 17/18th November 2016 making “incidental contact” with the AFP/SLO in Tofo at this time as this was the only time The high commission (Stacy walker) and (AFP) Detective Superintendent Noel Scruton were in Tofo for him to have this incidental contact!!! Therefore he needed to traveled five hours back to Tofo at this time to “bump” into the AFP/SLO in Tofo making the “Incidental contact” happen!!!!

Then Mr Gray further states 124 (L 19-21) “ I knew that Stacey walker (DFAT) and someone from the AFP had gone to Tofo, but no, I didn’t have any more involvement as per my stay’, again not telling the truth for the second time. Because Mr Gray had traveled 5 hours back to Tofo and made “Incidental contact” with AFP/SLO Noel Scruton in Tofo, handing over critical photographic evidence to Mr Scruton so you would think Mr Gray had known who the AFP person was!!!!

Note:- Mr Gray states someone from the AFP!!!!

The third and fourth time Mr Gray has not told the truth is on transcript page.

Transcript page 125 (L 20-23)

Mr Gray had been given the “Blurred” photograph by a fisherman when in Tofo who had taken a photo of Elly’s body at 5am.

Mr Gray was asked by my barrister :- Was there arrangements later, with that fisherman to provide the photo by some other means? Mr Gray’s reply was:-

I put this in my information in my statement ,but i didn’t have

any “follow-up”.

The family and Coroner Mr Cain has “solid factual evidence”that clearly proves the fisherman had also given Mr Gray the “clear version” of the crime scene photo therefore there was clearly follow-up with the fisherman!!!! This above was the third time Mr Gray had not told the truth and below is the fourth time at the inquest!!!

Transcript page 128 (L- 6-11)

Mr Gray is asked by my barrister again in a different way. There appears to be a clearer version of the photo that you took that came into the possession of DFAT and AFP. Do you have any insights about that photo?

Mr Gray's reply was :-

No to be honest, I only saw the photo that i took and sent it

back seven years ago. I’ve never received anything or seen

anything regarding the case since!!!

I reiterate the coroner Mr Cain and the family have official correspondence, factual evidence that Mr Gray had been given a second photo from the fisherman which was a “clearer version” when in or just after leaving Tofo on the 13th November 2016. Returning to Tofo on the 17/18 November 2016 making “Incidental contact” with Detective Superintendent Noel Scruton (DS Scruton) handing over critical photographic evidence to DS Scruton.

There can be No question, as the facts prove that the honorary

consul Mr Gray has under oath given “false evidence” at

our daughter’s inquest in August 2023. this had an effect,

with major consequences at the inquest for the family and my

legal team!!

142. In the material that Mr Warren has provided to the Court and in his submissions, he raised the possibility that Elly may have been moved to the toilet block near the marketplace where she was found post-mortem. He suggests that the sand that Elly had aspirated was a different texture and consistency to the sand in the market area. At inquest, DS Scruton stated that there was no guarantee that the sand had not been replaced or disturbed between when Elly was found and when he took the samples.104

I fully explained to Mr Cain in my oral submissions that the court has solid factual evidence with my meeting with the chief Inspector Cudzi in 2018 that he confirmed and has stated:-

Elly’s body was moved after her death as the sand in her mouth

at the location where the body found was not the same sand

found in her mouth. This is as solid evidence as you can get and

set in concrete straight from Inspector Cudzi. Mr cudzi also

states he told the AFP this information in 2016!!!

It must be noted the ground was roped off for some time so the police were protecting the crime scene and it’s not likely the sand will change much at the crime scene in the six days after our daughter’s death when Mr Scruton had taken the sand sample. The sand is very dirty at the toilet block location as it’s the only fresh water tap in Tofo and it is where the local people come to wash their clothes. I had fully explained this to Mr Cain in my oral submissions with pictures which were in evidence.

DS Scruton is just trying to justify the fact the AFP did not chase up the second sand sample inside Elly’s body. I realise they are no homicide detectives but you would think common sense would have prevail here. Why take a sand sample if not to test it with the sand in the body especially after the AFP DC Scruton was informed by inspector Cudzi at a meeting with him on the 18th November 2016 that they suspected Ms Warren’s body was moved to the toilet block location after her death!!!

143. On 18 November 2016, Ms Walker and DS Scruton attended a meeting in Inhambane at the office of Mr Matusse, who introduced the pair to the female doctor that had initially examined Elly and confirmed her death, Dr Delgado. That afternoon, DS Scruton met with the Head Prosecutor of Inhambane Province, Morals Baubo Nhanala who provided a briefing on the activity of the Mozambique authorities since the time of Elly’s death. They were joined at the meeting by Inspector Cudzi. DS Scruton offered assistance to the Mozambique authorities and organised to have Elly’s belongings located and returned to her family. 105

Mr Cain has not mentioned vital evidence here!!

DS Scruton had taken detailed notes at this meeting when asking Dr Delgado questions on the 18th November, who had turned up at the crime scene and later examined Elly’s body at the Inhambane hospital. The full notes are in his action sheet. Dr Delgado had told DC Scruton she had removed Elly’s clothes and in doing so found money under her bra. However what Dr Delgado did not tell DS Scruton was, Elly’s t-shirt was ripped apart!!! This is not mentioned in the notes taken by DS Scruton. This followed a meeting with the chief inspector Cudzi who had also turned up at the crime scene and again there is no mention of a ripped apart T -shirt at this meeting with the inspector in charge of the case!!! The belongings mentioned is Elly’s clothes in her suitcase. Surprisingly there is not mention of the clothes Elly was wearing at the time of her death as this should have been given top priority by DS Scruton!!!!

144. On 19 November 2016, DS Scruton and Ms Walker returned to Pretoria. On 3 February 2017, DS Scruton received a copy of the Mozambique autopsy report via email directly from the Mozambique Police. A copy was subsequently provided to the AFP.

DS Scruton had already been given the Mozambique autopsy report through back channels in 2016 as the AFP/SLO in Melbourne had informed me on the 19th December 2016 of the conclusion to the Mozambique autopsy that it was a violent death of homicide.

Therefore the 3rd February is when the AFP decided to give it to the coroner’s court.

145. On 25 November 2016, a clear version of the photograph of the crime scene taken by the local fisherman was provided to the AFP by DFAT. In a letter to the Court dated 16 June 2023, the Australian Government Solicitor’s office stated that DFAT advised the AFP that the fisherman had sent a clear version to Mr Gray, who then subsequently forwarded it to the High Commission in Pretoria. The letter also states that DFAT directly emailed the image to PCSU at the Court on the same date.106

This is one of the official letters which is from the AFP- Australian solicitor and confirms No 138 above with Mr Gray false evidence given at the inquest!! Clearly Mr Gray was given the clear photo and forwarded it onto the high commission in Pretoria.

This letter also confirms that the AFP officially acquired the clear crime scene photograph form DFAT on the 25th November 2016. This is very first time after 7 years that the AFP has disclosed this vital information!!!!

What Mr Cain has not explained here fully is the PSCU is the Police Coronial Support Unit this is the coroner’s assistant. Mr Cain has left out here that the letter also states the PSCU had then passed the clear photograph on the the VIFM the Victoria Institute of Forensic Medicine. The VIFM is the support laboratory for the coroner’s court which is based in the same building.

Mr Cain has stated that this forensic laboratory is the best in the state. However they did not do there due diligence here because they were given critical evidence of the clear crime photo and they did not report on this evidence to the coroner or Melbourne pathologist in 2016/17!!!!

More than likely this is why Mr Cain has left out fully explaining all circumstances here above!!!! Also for Mr Cain to mention Mr Gray here with his connection to the clear photo is more than likely not aware of Mr Gray’s false evidence given at the inquest!!!!

146. On 8 August 2017, DS Scruton returned to Mozambique to attempt to obtain additional evidence from the Mozambique authorities. In his statement, DS Scruton stated that he met with Mr Nhanala at the local police station who told him that whilst he had committed resources to the investigation the matter was still an active police investigation and that enquiries should be made with the local police. After the meeting, DS Scruton made arrangements to meet with Inspector Cudzi the following day in Inhambane.

147. DS Scruton stated that at the meeting with Inspector Cudzi an agreement was made for the return of the remainder of Elly’s belongings, and he requested copies of the crime scene photographs taken by the Mozambique authorities. DS Scruton was advised that the crime scene photographs were on a mobile phone which was broken, and he supplied a sum of local currency for the purpose of repairing the phone to access the photographs. Elly’s remaining belongings were subsequently provided to the AFP before being returned to her family.

146, The only reason the AFP DS Scruton had gone back into Mozambique is becaused the coroner asked the AFP to. Otherwise they would not bother!!

147, The coroner also wanted the crime scene photographs. However this was a waste of time asking as DS Scruton would have been aware of this because he sent the clear photo to Inspector Cudiz in November 2016 and he would have been aware of his own police cover-up. Therefore there was was no way they were going to give us their crime scene photographs. Two phones had taken photos and bot were damaged!!!!

148. At that meeting, the evidence also suggests that there was a discussion between DS Scruton and Inspector Cudzi about the possibility that Elly’s body may have been moved postmortem. This information is included in the AFP Action Sheet contained in the coronial brief.107 Although the possibility was canvassed, there was no evidence at that time or subsequently that elevates this beyond being a possibility. The evidence on this issue is inconclusive but I cannot exclude the possibility that Elly was moved post-mortem.

I really don’t Understand this at all from Mr Cain as the court has “solid evidence which can’t be disputed” therefore it’s totally factual, with Inspector Cudzi, person to person informing me that Elly’s body was moved after her death and again it is all in my oral submissions to Mr Cain.

When I returned from my first trip to Tofo in October 2018 the coroner’s assistant had rung me and told me Mr Bracken wanted all my evidence from Tofo. I had Videos and pictures and in this evidence is a video of Inspector Cudzi clearly stating that Elly was not murdered at the location the body was found as the sand in her mouth was not the sand from the toilet block location.

I reiterate this is as concrete evidence as you can get straight from the horse’s mouth that Elly’s body was moved after her death to the toilet block location and it’s all in my oral submissions.

In fact I have an email sent to the court from my lawyer for Mr Cain for his consideration concerning this factual evidence which Mr Bracken placed into the evidence Brief. However it proves the AFP did not do their due diligence here because they were also informed Elly’s body had been moved after her death By Inspector Cudzi in 2016 as it is stated in their AFP action sheet with Inspector Cudzi stating this at a meeting with the AFP/SLO DS Noel Scruton on the 18th November 2016 .!!!! really what is going on with the AFP here as this is a suspected murder of a young Australian girl here, where is the support!!!! This is not good enough and I feel the coroner here has not added weight to this fact here at all. They all cover each other’s backs!!!

The other point here is and I have mentioned this a few times that Dr Klepp and Dr Collins both state its “not possible” at all for Elly to compromise her airways, packed chockablock as mentioned by Dr Klepp in evidence given with the body in this position laying flat with her head on top of this firm sandy pathway surface!!!

I explained all this evidence with pictures at my oral submissions with Elly body you can see the surface is rocky and its a firm hard surface which is also stated by Dr Klepp in evidence.

In fact i don’t think there would be a doctor in Australian

except for Dr Lynch that would not agree with Dr Klepp and

Dr Collins here above!! there is very strong strength of

evidence which proves Elly’s body was moved after her death

which Mr cain was fully aware of!!!

149. In March 2021, Coroner Bracken requested that the AFP make a formal application to the Mozambique authorities to engage in a joint investigation into Elly’s death. The AFP sent correspondence to SERNIC on 8 April 2021 making that request. On 10 April 2021, SERNIC acknowledged receipt of the letter and some months later advised that the letter was with their legal department. The AFP made many attempts to follow up with SERNIC, but to date, the AFP has not received any response beyond an acknowledgement of receipt.108

I can’t believe what Mr Cain had left out here!!!!!

Some of this is also explained in my oral Submissions, My affidavit and above at No 30.

However the most important evidence left out here is why has

Mr Bracken asked the AFP after 5 years to Suddenly request

the AFP to make a formal Application here in 2021.

Now I will start with the fact Mr Cain was fully aware of what I am about to tell you its all in emails and correspondence sent to the court which is in the brief.

The AFP had sent submissions to Mr Bracken 2020/21 and at No 40 in these submissions it clearly states that A Mozambique government official has stated:-

“it was always possible for a “joint operation” with the AFP”.

Because of this above statement in the AFP submissions Mr Bracken, coroner at the time, at the direction of the family had requested the AFP to send an official formal request at a hearing in February 2021.

150. To date, the AFP and the Court have not been provided with a copy of or been given access to any material held by SERNIC pertaining to Elly’s case. During the course of the investigation, the AFP and DFAT have made numerous enquiries with SERNIC to ascertain if a copy of the investigation brief could be provided, however to date nothing has been forthcoming.

This tells me Mr Cain does not understand the protocols or system.

This is a Australian government process from our attorney general to their attorney general. The AFP they don't want to get involved and have only been involved because they have been asked by the coroners court each time. Mr Cain was given a letter on the 19th June informing him that the deputy Mozambique attorney general will only except the official Mutual request (MAR) from our government for their investigation brief. The court needed to ask our Australian attorney General to send the MAR for this investigation brief. I did try and inform Mr Cain at my oral submissions that we have never sent the official MAR to the Mozambique government. The AFP had only sent a personnel letter and the deputy Mozambique attorney general is informing us that this official process is what their country will only accept!!!

The main point here is we have never sent any offer using the

official process of a MAR. They are trying to tell us this this is

the only official process they will accept!!!!

The AFP are fully aware of the correct process with the MAR as they can also inform our attorney general to send the MAR but they never wanted to because they don’t want to get involved as I have said the only reason the AFP have been involved at times is because the court has instructed them to do so!!!!

151. On the date of the last directions hearing on 20 February 2023, I asked the AFP to obtain an update on the status of the Mozambique investigation prior to the date of the inquest.

152. In response to my request, the AFP with the assistance of Commonwealth Attorney General Mark Dreyfus MP KC arranged to meet with the Mozambique Deputy Attorney General and the SERNIC Director from Inhambane. This meeting took place in Mozambique on 23 May 2023.

Again it’s the court that has to ask the AFP. The family had been asking over 7 years for the AFP to go over official and become involved. This time the AFP finally sent a commander who had an official meeting with their Attorney General. The Mozambique Attorney General told the AFP what Elly’s family have been telling the AFP and Australian govenment for 7 years that they will only except the official Mutual assistant request between our two countries!!!!!!!!!

Mr Cain was fully aware of these circumstances and I further challenged this at my oral submissions with Mr Cain!!!! All he could say was ;- “What difference would it have made if we had sent the MAR in 2016/17”!!! I said we will never know as the Mozambique Government has never been given any choice to say No or Yes to the MAR because we have never sent it!!!

.153. On 19 June 2023, I was provided with a summary of the outcomes of that meeting by letter from the AFP, as follows: ‘During [the meeting], the Mozambique representatives provided advice not previously shared with the AFP, including the following:

• They have determined Elly Warren was a victim of homicide, but Mozambican authorities have been unable to determine the perpetrator(s); the criminal process remains on hold until the perpetrator(s) is/are established, and the process can be re-opened if new material is identified;

• The matter is now with the Instructing Judge to make a determination of the future course of the matter and the three options available to the Instructing Judge are; to agree with SERNIC and the Attorney-General's Office and close the matter, instruct further investigations to be conducted, or to initiate a prosecution;

• The Instructing Judge's view on sufficiency of evidence will determine whether the matter moves from its current status to the next phase;

• No timeframes were provided; it is entirely up to the Instructing Judge;

• As the matter is still in the 'instruction phase', under the Mozambican legal framework no part of the file can be provided or published. The only permitted access to the investigation file is by the Attorney General's Office, SERNIC, the Instructing Judge & the appointed NOK Advocate (on representation);

• The Deputy Attorney-General advised that the only way that the Coronial Inquiry in Australia could officially acquire the file would be through a Mutual Assistance Request once the instruction phase is completed and the secrecy provisions are relaxed;

• Dr Gracio Abdula, as the appointed [next of kin] Advocate has a right to review the investigation file and an opportunity to make representations to the Instructing Judge. The instructing Judge will then make a decision on future conduct.’109

This is incorrect when Mr Cain States this information has not been previously shared with the AFP!!! He was fully aware of these circumstances below as I explained this to Mr Cain in my oral submissions!!! The AFP received a Mozambique police report on the 10th April 2017 clearly stating Ms Warren’s death is a homicide!!! This report states this in the First paragraph and conclusion of the police report with a case file number 775/2016 of Homicide!!!!

Therefore they had already determined it was a homicide in April 2017 not May 2023. The AFP were fully aware of this official police report in April 2017!!!

The Mozambique police have suspects but not enough evidence to charge anyone!!!

The is where Mr Roos a private investigator had more information to inform Mr Cain of as this letter states that Mr Roos has an update on the investigation from his last report to give to the court at the inquest. However Mr Roos was not called to give evidence at the inquest!!!!

Note; The Mozambique Deputy Attorney general informs the AFP that they will only except the official Mutual Assistants Request between our to countries!!!CONCLUSIONS

REGARDING CIRCUMSTANCES AND MEDICAL CAUSE OF DEATH

157. Having reviewed all the available evidence, including the coronial brief and the evidence at

the inquest as well as having reviewed the submissions for the interested parties and Counsel

Assisting, I have reached the following conclusions in relation to the circumstances of Elly’s

death:

a) Elly may have consumed 2 or 3 alcoholic drinks (one or two beers and a cocktail)

over a number of hours on the evening of 8 November 2016, but was unlikely to

have been intoxicated.

b) The toxicology reports showed no indication of Elly having consumed prescription

medication or illicit substances on that evening.

c) Elly aspirated a significant amount of sand that was the cause of her death.

d) The available evidence does not enable me to determine the precise circumstances

that led to Elly aspirating the sand that led to her death.

e) On the available evidence, I am unable to determine whether Elly aspirated the sand

at the location adjacent to the toilet block near the marketplace in Tofo beach, where

she was found on the morning of 9 November 2016, or whether she aspirated the

sand at some other location and was moved post-mortem.

f) On the available evidence, I cannot determine whether Elly was sexually assaulted,

but the possibility cannot be excluded.

g) On the available evidence, it is possible that a person or persons unknown caused or contributed to Elly’s death.

Elly aspirated a large amount of sand,

This sand was packed chockablock as Dr klepp states and further states she has never seen sand this packed in the airways before in all her 44 years as a pathologist. This proves that Elly could not possibility pack her airways to such a degree as Dr Kleep has described naturally or on her own accord. There is no drugs or alcohol involved leaving us with no other possibly reason than her head was held down at the time she aspirated the large volume of sand obstructing her airways causing death. Elly’s body was also found laying flat on a firm sandy rocky pathway running around the toilet building with her head and chin resting on top of the ground. Dr Klepp states in evidence that with Elly laying in this position on this firm packed surface that that she could see in the photo that it was not possibility to compromised her airways at this location with the packed chockablock sand she had found in her oral cavity and airways. There can be no question that her body was moved to the toilet block location after her death. The Mozambique chief inspector Cudzi on video which was placed into evidence by Mr Bracken coroner, has stated the body was moved to the toilet block after Elly’s death due to the fact the sand found in her mouth was not the sand where the body was found!! Now you add the ripped apart top not even mentioned here. In the accucal crime scene photo you can clearly see that Ellys top is destroyed ripped from her right shoulder and all the way down her right side. It’s not possible for Elly to do this amount of damage to her top on her own. All these above facts were mentioned in my oral submissions with Mr Cain. I submitted to Mr Cain at my oral submissions that all this above compelling evidence is beyond reasonable doubt that my daughter’s death is a homicide!

Note:- The coroner’s court is not bound by the rules of evidence therefore this is why coroner Bracken had entered all my videos from my trip to Mozambique in 2018 into the coroner’s brief as evidence. I had informed Mr Cain of The chief Mozambique inspector evidence on video which is in the brief by coroner Bracken at my oral submissions. My Lawyer after viewing the video evidence of the Mozambique chief inspector had also given Mr Cain a letter informing Mr Cain about this video evidence before my oral submissions. This vital evidence was placed into evidence by Mr Bracken!

161. In an affidavit to the Court dated 30 June 2023, Commander Smith stated that: ‘…there is a very limited role for the AFP in circumstances where Australian citizens are victims of crime overseas. The AFP does not have jurisdiction in overseas countries and therefore cannot enter into a foreign country to investigate crimes against Australian citizens overseas without an express formal authority from the foreign country. This accords the other country the same respect and authority that Australia would expect of any foreign State if a citizen of theirs was a victim of crime in Australia’.111

162. Commander Smith also stated that where an Australian citizen is the victim of a crime overseas the starting point is that the DFAT leads diplomatic and consular responsibilities. Commander Smith noted that very often, the AFP will not be informed and will play no role in responding to harm caused to Australians overseas.112

I am amazed with this comment above by Commander Smith;-

The AFP will not be informed and will play no role in

responding to harm caused to Australians overseas.

The AFP don’t want to get involved even if it’s a serious crime of Murder. Why have the AFP if they are not going to support Australian families overseas. I am sure it’s in there sworn duty to support and help Australians families in such diabolical circumstances where a loved one has been murdered overseas. It’s totally unacceptable that the family has to investigate there own loved ones murder overseas.

163. In the 30 June 2023 affidavit, Commander Smith stated that only a very small percentage of Australian deaths overseas will be referred to the AFP. However, in most cases, where an Australian is a victim of crime or is harmed overseas, the AFP does not become aware of the incident. Commander Smith noted that if the AFP does become aware of an incident (including a death) overseas and a competent authority is investigating, the AFP may offer assistance but will generally rely on the investigating authority in that country.113

164. Commander Smith also stated that in cases where the AFP does play a role of some kind in responding to an incident, a senior officer is usually deployed early on in the investigation to assist with a variety of roles including but not limited to, supporting DFAT and AFP decision making with respect to the case, providing or offering investigative assistance to the local authority or in providing oversight of the case to the AFP in Australia.114 I note that in Elly’s case, DS Scruton was deployed to Mozambique shortly after Australian authorities were informed of Elly’s death.

165. The role of the AFP also varies depending on which country in which the incident occurred with lines of communication varying from informal police-to-police relationships, to more formal but non-binding memorandum of understanding or formal requests such as Mutual Assistance Requests (MAR). In his affidavit, Commander Smith stated that: ‘….regardless of the country involved, the AFP would not seek to enter and investigate crimes without the consent or invitation of a foreign law enforcement agency. The AFP does not have the authority to do this. This limitation does not change depending on the country’.115

166. The AFP also provided written submissions addressing the issues raised by Elly’s family. I have included an extract from the written submissions below:

a) The AFP play only a limited role overseas where Australians are victims of crime, because the AFP cannot enter foreign countries to investigate crimes without formal authority from the other country – in other words, without that country’s consent and cooperation.

b) In this case, AFP officers have only ever travelled to Mozambique or acted in Mozambique as officers seeking to assist Mozambique authorities. As Mr Scruton said, he had ‘no legal authority in any of the 45 countries that [he] looked after whilst [he] was in Africa’.

c) It is highly unusual for the AFP to directly investigate a crime in another country, which is a position adopted by most if not all overseas law enforcement.

d) The AFP have, however, developed relationships with law enforcement authorities overseas that can allow the AFP to assist in investigations formally (for example, through treaties) and informally (for example, through developed professional relationships). That assistance can take many different forms.

e) The extent and manner of assistance will depend on many different factors in each case. The AFP’s Better Practice Guide to dealing with Harming Australians Offshore legislation provides guidance to officers dealing with cases where the AFP might have a role.

f) It is extremely difficult where the country where the incident occurred does not work

to the same standards as does the AFP. But that does not provide a basis for the AFP to conduct a direct investigation or to exercise coercive powers without the cooperation and consent of the other country. All that can be done in such situation is to offer assistance.

g) There are also potential dangers of conducting investigations when not formally sanctioned.

h) Where an Australian is the victim of crime overseas, it is usually DFAT that take the lead, because support is usually diplomatic or consular in nature.

i) The AFP otherwise protects Australian interests and cooperates with international partners in a wide range of ways, generally at a higher level but also assisting other nations where it is invited into particular situations.116

PUBLICLY AVAILABLE INFORMATION ABOUT THE ROLE OF THE AFP IN OVERSEAS INVESTIGATIONS

167. As outlined above, in his affidavit to the Court dated 30 June 2023, Commander Smith confirmed that DFAT are the lead agency in matters where Australian citizens are victims of crime overseas. In this regard, he stated that the AFP website refers members of the public to the DFAT website and provides general information about the role of the AFP, including that:

• the AFP has no authority to carry out inquiries in foreign countries without local approval,

• the AFP does not liaise with foreign law enforcement agencies on behalf of members of the Australian public, and

• in some circumstances the AFP may be asked to assist a foreign country with investigations (including if offences have extraterritorial application) and that in those circumstances the investigation of offences by the AFP requires the cooperation and invitation of the foreign country concerned.117

What happened in Elly’s case is a complete contradiction to what is stated in DS Scruton evidence given at the inquest as he had gone in on the ground in TOFO and had been given permission from the local authorities. DC Scrutons states in evidence that the Mozambique authorities were being very difficult with poor cooperation. However this is not the case recorded in his action sheet as the chief Inspector Cudzi seemed very helpful giving him possession to enter Tofo and had Elly’s suitcase clothes ready for them to pick up on their return from Tofo the next day. DS Scruton was also allow to engaged in meetings where he took detailed notes from the crime scene doctor and these notes are entered into his action, These are critical investigation details DS Scruton has taken and recorded in his action sheet. What was really surprising was DS Scruton was directly involved in acquiring Elly’s clothes and other possessions not DFAT. This is all recorded in his AFP action sheet.

What’s interesting to note here is the Chief Inspector at this time was not aware of his own police cover- up at the crime scene so he was very obliging at this time with our authorities in November 2016. However DC Scruton on the 8th December had sent the Mozambique chief inspector the clear crime scene photograph and this changed everything, realising the top was ripped apart in the photo but not at the crime scene when he was there making the chief Inspector aware of his own police cover up at the time. Therefore two phones were damaged with the crime scene photos and all cooperation obviously would have ceased at this time after giving the chief inspector the clear crime scene photograph!!!

The point here is the Mozambique chief Inspector was very obliging in November before he was given the clear crime scene photo from DS SCURTON!!!

• the AFP has no authority to carry out inquiries in foreign

countries without local approval,

Therefore they had local approval to enter Tofo taking a evidence sample and taking detailed notes from Dr Delgardo the crime scene doctor which is in DC Scrutons action sheet.

This above proves the AFP were carrying out Inquiries with Elly’s investigation doing some investigating work and Elly’s clothes she was wearing at the time of her death was on exception as these were critical evidence and should of been given to priority by DS Scruton but he was aware of the Mozambique cover-up at this time!!!! There is on mention of the clothes Elly was wearing at the time of her death in his action sheet not even a hint!!!!

This was critical at the time as DS Scruton obtained all of Elly’s main clothes but not her clothes that she was wearing at the time of her death. I realise the AFP are not Homicide detectives but surely it was common sense to ask about Elly’s clothes she was wearing at the time of her death. The action sheet fully explains that DS Scruton asked the chief Inspector for approval to go on to Tofo which was granted straight away. DS Scruton obviously did some investigating in Tofo taking pictures of the crime scene and acquiring some physical evidence and taking critical detailed notes at meetings at these meetings. DC Scruton asked the Chief Inspector for Ellys clothes when they first met in Inhambane on the 17th November 2016 and the chief inspector told DS Scruton after there visit to Tofo they will be ready for pick up on their return the next day the 18th November. This was very obliging behaviour from Chief Inspector Cudzi in charge of Elly’s investigation. Still On mention of Elly’s clothes she was wearing at the time of her death in the action at all. Her body was just at the Maputo central hospital around this time where the Mozambique inspector who accompanied her body had left her clothes at the hospital as they don’t have the technology to test the clothing.

DC SCRUTON HAD EVERY OPPORTUNITY TO ASK FOR AND RETRIEVE THESE CLOTHES ELLY WAS WEARING AT THE TIME OF HER DEATH IN NOVEMBER 2016!!!!! THE DIRECTOR AT THE HOSPITAL HAS STATED TO THE FAMILY AS NO ONE CAME TO PICK UP THE CLOTHES THEY WERE EVENTUALLY DESTROYED AFTER TIME!!!!! THERE CAN BE NO QUESTION AND I AM SURE ANY HOMICIDE DETECTIVE WOULD AGREE THAT THE CLOTHES ELLY WAS WEARING AT THE TIME OF HER DEATH SHOULD HAVE BEEN GIVE “TOP PRIORITY” OVER HER OTHER SUITCASE CLOTHES BY AFP DS SCRUTON.

The AFP will tell everyone they asked for these clothes Elly was wearing at the time of her death however there is no “evidence whatsoever” that they had even mentioned these clothes in there action sheet. Only her suitcase clothes are mentioned, but not the clothes Elly was wearing at the time of her death!!!! The chief Mozambique inspector was very helpful at this time in November and he had no use for these clothes because they were left at the Maupto hospital by one of his own Inspectors therefore they were never entered in as evidence by the Mozambique authorities!!!!

169. Commander Smith also commented that the AFP do not generally have a role as an intermediary between family members and overseas authorities in an overseas investigation. In relation to Elly’s case, which is unusual, Commander Smith stated that although the AFP made numerous attempts to assist the Mozambique authorities, the AFP did not act as an intermediary, but rather as the coroner’s investigator and assisted in conveying information between the various parties, including Victoria Police, the coroner, and Elly’s family.119

The AFP did not do this at all for me personally in fact the first letter from the AFP I was given was after two years, they were telling me off because I was so frustrated with the AFP I sent cc copy corresponded to other people as I had no choice because they were not responding to my emails. The communication with the AFP was non-existent and not on good terms for me at all and I did tell Mr Cain this in My oral submissions. The bottom line is they never wanted to become involved with another’s countries corrupt police force and that’s it really in a nutshell.

The AFP were fully aware that to ask for assistance it needed to be through the Mutual Assistance Request (MAR) not verbally or police to police which is all they have done in the above paragraph. It needed to be official through the correct official channels with a MAR from our Attorney General to their Attorney general!!!

I can tell you if the AFP given you any Information at all it’s only “half truths” know way will they give you the full picture they twist and turn all there Corresponded so they just tell you enough without giving too much away!!! The one thing I have learnt over the years is the AFP are very astute and cunning in the way they hide all the facts that they don’t want you to be aware of!!!! Therefore if you find yourself in the same circumstances as Elly’s family take it from me you can’t trust the AFP!!

MUTUAL ASSISTANCE REQUESTS

170. In an international context, the AFP operates within an extensive international law enforcement network which recognises the importance of collaboration and cooperation between Australia and other countries. The AFP has developed more formal understandings with other countries which outline the expectations of the AFP and the law enforcement agency in the other country.120

171. Where no formal bilateral agreement exists between Australia and another country, as is the case with Mozambique, the AFP relies on police-led-diplomacy. In such cases, cooperation relies on the development of relationships between law enforcement agencies and even individual police officers in different countries. In other cases, Australia has agreed formal treaties to allow for the provision of information in prosecutions. For example, formal legal agreements such as a MAR.

172. A MAR in criminal matters concerns the provision of formal assistance to, and the obtaining of formal assistance from, other countries for the purpose of:a) the investigation and prosecution of a crime; and b) the restraint and confiscation of the proceeds of crime.121

173. In this case, the AFP sought advice from the Australian Government Attorney General’s Department, International Crime Cooperation Central Authority (AGD) in relation to the requirements for seeking assistance from the Mozambique authorities though a formal MAR. The AGD advised the AFP, MAR arrangements between Commonwealth countries (such as Australia and Mozambique) are generally conducted in accordance with the Scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth (the Scheme). The Scheme states at subparagraph 2(2) that: ‘a criminal matter arises in a country if the Central Authority of that country certifies that criminal or forfeiture proceedings have been instituted in a court exercising jurisdiction in that country or that there is reasonable cause to believe that an offence has been committed in respect of which such proceedings could be so instituted.’ 122

174. In this regard, the advice from the AGD to the AFP was that the MAR process was not available to the AFP with respect to obtaining material from the Mozambique authorities in support of Elly’s investigation.

This above is incorrect advice from our Attorney general the MAR was introduced for all countries so they can work our issues and to give these countries the opportunity to be transparent and work together to solve serious issues.

Looking at No 153 in these coroners findings it states :-

• The Deputy Attorney-General advised that the only way that the Coronial Inquiry in Australia could officially acquire the file would be through a Mutual Assistance Request once the instruction phase is completed and the secrecy provisions are relaxed;

What is our Attorney advising here as the Mozambique Attorney General has stated this is the only official process they will except which is the MAR for the realise of there casefile or brief. I don’t think our Attorney understands the MAR process that it is for all countries to use the Mozambique officials understands this process but obviously we don’t. This is no where good enough by our Australian Government.

175. In addition, Part 5.4 of Division 115 of the Schedule to the Criminal Code provides for offences relating to harming Australian residents or citizens outside of Australia. In a letter to the Court from Assistant Commissioner Giles, he confirmed that the AGD advised the AFP that these provisions are unlikely to be relevant in Elly’s matter123 as the AFP are not in possession of the Mozambique investigation file and as such, do not have sufficient material which discloses an offence under Division 115.124

The AFP have camouflage the revised Mozambique police report on the 10th April 2017 for this reason above in No 175 This revised police report which clearly states Homicide from their top criminal authority SERNIC!!!! There motive is they don’t want to get involved with a corrupt police force or with major matters of this magnitude!!!

176. At inquest, Commander Smith was asked questions about why a MAR request was not made in Elly’s matter and the reasons for why the AFP chose not to open an investigation into Elly’s death.

177. Elly’s family suggested that if MAR had been made and granted it would have resulted in the release of the Mozambique investigation file and may have opened further lines of enquiry and enabled the AFP to make available its resources to assist the Mozambique investigators.

This is not totally correct By Mr Cain and i will explain.

If The MAR was issued early in 2016/17 before the Mozambique had become aware of their own police cover-up this may of helped as it was always up to the Mozambique Attorney general (MAG) to say yes you can help us or no thank you we don’t need any help. However we never sent the MAR to give the MAG a chance to say YES or NO.

There was big advantages with a MAR in place between our two countries and the one essential aspect is testing the trace evidence as we had advanced technology to extract DNA from clothing and other areas with the evidence to Forensic analysing. The AFP had the a new state of the art Forensic Laboratory at their convenience in October 2016.

This becomes very “critical” when it involves a third world country like Mozambique as these countries don’t have the capacity to carry out a proper Homicide investigation because they don’t have the advanced resources for Forensic testing such as DNA. In Elly’s case the Inspector who accompanied Elly’s body to Maputo Hospital had left her clothes there because this was not evidence that they can do anything with therefore these clothes were never placed into evidence!!! This was such a “missed opportunity” for Elly’s family. If only the AFP did there due diligences in making this there top priority to retrieve the clothes Elly was wearing at the time of her Death as they were fully aware the Mozambique police did not have the Technical resources for any DNA analysis.

In 2021 in AFP submissions in clearly states that a Mozambique Government official has stated;- “it was always possible for a joint operation with the AFP”. In 2025 after what I now know, what really goes on I would never trust the AFP anyway to help another country with a murder investigation.

With regards with the release of the Mozambique casefile they have told our AFP, coroners court and govenment by letter that they will only except the Official MAR between our to countries if we wish to retrieve their case investigation file. During the inquest the Moz-judge had not closed the case but in 2024 the Mozambique Judge informed the AFP the case in now closed due to insufficient evidence to charge anyone. Now that the case is closed it should now be possible to retrieve their casefile as there instruction phase is completed and the secrecy provisions should be relaxed now the judge has closed the case!!! I have recently sent letters and had a meeting with my local gov- MP Jodie Belyea and she contacted the Attorney general and they informed me by email/ letters they can’t do anything to help Elly’s family with the issue of retrieving the Moz-Casefile!!!

178. In his evidence at inquest, Commander Smith stated that a MAR cannot be utilised for a coronial process and that for a MAR to be made, there has to be an active criminal investigation being conducted by the AFP. 125 In this regard, Commander Smith confirmed that the AFP did not open an investigation into Elly’s death and that the AFP was only involved in this investigation to assist the coroner. Commander Smith noted that he was not involved in and was unable to shed any light on the initial decision by the AFP not to commence an investigation into Elly’s death.

However there was always an “Active homicide” investigation going on since the 10th April 2017 by the top Mozambique criminal law enforcement agency SERNIC as the AFP had camouflaged this information from the coroner. Not only has the AFP lawyer not told Mr Cain the truth in my oral submissions he has also not told the truth in his submissions to the court.

Note: It must be noted the revised Mozambique police report is in the evidence brief and I did explain this to Mr Cain in my oral submissions but he said this was an autopsy report because the AFP Lawyer told Mr Cain this and that is what the AFP had lead Mr Cain to Believe. in the very first paragraph in the SERNIC report it states they are treating Ms Warrens case as a homicide with a case file No 775/2016 on the 10th April 2017.

This is where the AFP are “very cunning” as well here choosing Commander Smith to represent the AFP as he was not in a position to answer any questions about the early case!!! Unfortunately this worked in favour of the AFP as Mr Cain in a hearing in February 2023 stated he only wanted one AFP representative and he did not stipulate, preferably someone who had early involvement with Elly’s case. This also placed the family at a disadvantage not having a top AFP official who was involved with making the decisions in 2016/17.

This evidence below of the clear photograph is so critical yet it’s not mentioned at all, with any weight in Mr Cains conclusion or findings!!!!

My re-enactment photo of the clear crime scene photograph above of the position of Elly’s body showing the top ripped from the shoulder and down the right side. The left side of her t-shirt is intact as it should be with the t-shirt covering the shoulder and down her arm.

Mr Charlie Bezzina a retired Melbourne homicide detective has viewed the actual clear crime scene photograph and my re-enactment photo. Mr Bezzina told me that the damage to the top is a very good indication of the extent of damage shown in the re-enactment photo, however you are not going to have it exact. The body position also gives you a close idea of the lay of the body in the actual photo but again it will not be an exact match. In the actual photo the underwear is around the knees.

If you were a Detective or Doctor and you were standing over this body at a crime scene would you put the ripped apart T-Shirt in your report!!!!!!  In fact this critical factual evidence showing the top is ripped apart totally destroyed is not mentioned in “any police report ” not even in the coroner’s conclusion Why?!! It exposes the Mozambique police!!!

The Below letter sent on the 9th August 2023 to Mr Cain

explaining the vital importance of Dr. O'Donnell, (Radiologist)

as a witness by my lawyer.

 2 Proposed witness list

2.1 We have had an opportunity to consider the proposed witness list provided to our office on 3 August 2023. We are instructed to request that the Court reconsider its decision not to call Dr Christopher O’Donnell as a witness at the inquest in this matter.

2.2 Mr Warren is concerned that the absence of Dr O’Donnell as a witness in this matter may lead to the questions of whether sand was present in Ms Warren’s lungs, trachea and larynx, the volume of sand present and the likely impact of that sand on Ms Warren’s cause of death, being underdeveloped at the inquest. The radiology report prepared by Dr O’Donnell is complex and we consider the Court would be assisted by Dr O’Donnell being able to fully explain and clarify the matters contained within his report.

2.3 Mr Warren considers the presence of hypertense foreign material in areas of Ms Warren’s lungs, larynx and trachea as identified in the radiology report as critical evidence relating to Ms Warren’s cause of death. We understand that the bright white areas in the images produced in Dr O’Donnell’s report are of very high density. On this basis it appears that the sand identified in Ms Warren’s lungs, trachea and larynx is denser than some of Ms Warren’s bones in the surrounding areas. In our view, this suggests that there may have been a significant blockage to Ms Warren’s airways. This is relevant to determining Ms Warren’s cause of death.

2.4 Further, we understand that the density of the material identified on the scans, may be quantified using the Hounsfield system of measurement. For example, in his report, Dr O’Donnell has allocated a density of 1290 HU to the material located in Ms Warren’s larynx. The ability to quantify the density of the material identified in Ms Warren’s airways may have significant bearing on determining Ms Warren’s cause of death. The Hounsfield system of measurement is not explained in Dr O’Donnell’s report and accordingly there is no material presently before the Court which explains what conclusions can be drawn from the density values Dr O’Donnell has ascribed in his report.

2.5 Finally, Mr Warren feels that Dr O’Donnell is the most appropriate person to speak to the contents of his report and opine on the likely density of the material identified in the images contained within that report. This belief is supported by the fact Dr Lynch in his report dated 5 July 2017 was only able to identify some residual sand in Ms Warren’s trachea and bronchi. Further, Dr Lynch’s supplementary report dated 19 September 2019 states that ‘it is not possible to quantify the amount of sand identifiable on the CT images.’ Accordingly, any clarification regarding the likely quantity of sand found in Ms Warren’s airways will require Dr O’Donnell’s evidence as to the Hounsfield system of measuring density and the meaning of the density values attributed to the material found in his report.

2.6 In these circumstances, we are instructed to request Dr O’Donnell’s inclusion as a witness for the inquest. We are grateful to His Honour Judge Cain for his consideration of Mr Warren’s request.

2