Oral submissions of Elly's father Mr Warren with the Victoria State Coroner

Oral Submissions

able of Contents

1. Key individuals

2. Overview summary

3. Conclusion

4. Oral Submissions with Mr Cain – 11 December 2023

Key Individuals Referenced in the Transcript

1.Dr Klepp – Pathologist

Dr Klepp conducted the second autopsy in South Africa, which was completed on 16 November 2016.

2. Dr Lynch – Pathologist

Dr Lynch conducted the third autopsy in Melbourne on 22 November 2016.

He works at the Victorian Institute of Forensic Medicine (VIFM), which is located in the same building as the Victorian Coroners Court.

3.Dr O’Donnell – Radiologist

Dr O’Donnell is a radiologist at the Victorian Institute of Forensic Medicine (VIFM)

Note: Mr Scruton was a very experienced AFP Superintendent and therefore fully aware of the circumstances surrounding the matter in 2016.

Mr Gray, also from DFAT, was the first official at the crime scene on 13 November 2016.

4.Mr Noel Scruton

was the main Australian Federal Police (AFP) officer stationed at the Australian Embassy in Pretoria, South Africa. Note: Mr Scruton was a very experienced AFP Superintendent and therefore fully aware of the circumstances surrounding the matter in 2016.

5. AFP Presence in Mozambique

Mr Scruton travelled to Tofo, Mozambique, in 2016 with Stacey Walker acting as translator.

They attended meetings with local authorities and visited the crime scene together on 17 November 2016.

During this visit: Mr Scruton collected a sand sample from the crime scene, and He spoke with the first doctor who examined Elly’s body, taking notes which were recorded in his official action sheet.5.

6. Stacey Walker

was the Department of Foreign Affairs and Trade (DFAT) Senior Liaison Officer (SLO) stationed at the Australian Embassy in Pretoria, South Africa.

7. The Fisherman

A local fisherman living in Tofo discovered Elly’s body at approximately 5:00 am on 9 November 2016 and took a photograph of her body.

8. Inspector Cudzi

Inspector Cudzi was the Mozambican Chief Inspector in charge of the investigation, attending the crime scene on 9 November 2016.

9. Mr Cain (His Honour)

Mr Cain is the Victorian Coroner who presided over the inquest in Australia.

10. Mozambican Doctors

Mozambican doctors conducted the initial autopsy in Maputo on 14 November 2016.

11. Jade O’Shea

Jade O’Shea was Elly’s friend in Tofo at the time of her death and was one of the last people to see her alive, at approximately 11:30 pm on 8 November 2016.

12. Court Staff

Court staff referenced in the transcript are explained within the document.

The lawyer representing the AFP was Mr Yuile.
Ms Smith served as Coroner’s Assistant to Mr Cain.

13. Elly’s Parents

Mrs Nicole Cafarella and Mr David Cafarella are Elly’s mother and stepfather.

14. Coroner’s Assistants

Mr King Taylor was the Victorian Coroner’s Assistant from the beginning of the investigation.

He retired approximately a year ago and was replaced by Mr Ross Treverton, who has recently taken over the role.

15. Radiology Images

Please note that I cannot publish the radiology images showing 1209 HU in the upper airways and 947 HU in the lower airways, as these images form part of a medical report contained within the official brief.

16. Mr Warren

Mr Warren is myself, Elly’s father.

Overview of the Oral Submissions – 11th December 2023

The following material outlines key issues raised during oral submissions presented before the Victorian Coroner, His Honour Mr Cain, on 11th December 2023, in relation to the death of Elly Warren.

The purpose of this section is to provide readers with the necessary context to understand the evidence discussed during the inquest, including the individuals involved in the investigation, the forensic examinations conducted across multiple countries, and the factual matters raised during the proceedings.

Elly’s body was discovered on the morning of 9th November 2016 on near a toilet block in Tofo, Mozambique, by a local fisherman at approximately 5:00 am. The fisherman photographed her body before authorities arrived. The Mozambique investigation was led by Chief Inspector Cudzi, who attended the crime scene on the same day and took charge of the local police response.

Shortly after Elly’s death, Australian officials became involved. Mr Noel Scruton, an experienced Australian Federal Police (AFP) Superintendent stationed at the Australian Embassy in Pretoria, South Africa, was the primary AFP officer responsible for assisting in the matter. Mr Scruton travelled to Tofo together with Stacey Walker, the Department of Foreign Affairs and Trade (DFAT) Senior Liaison Officer stationed at the same embassy.

On 17th November 2016, Mr Scruton and Ms Walker attended meetings with Mozambican authorities and visited the crime scene together. During this visit, Mr Scruton collected a sand sample from the scene and also spoke with the first doctor who had examined Elly’s body. Notes from this conversation were recorded in Mr Scruton’s official action sheet.

Elly’s body was subsequently examined by medical specialists across three different countries. The first autopsy was conducted in Maputo, Mozambique, on 14th November 2016 by Mozambican doctors. A second autopsy was then carried out in South Africa on 16th November 2016 by forensic pathologist Dr Klepp.

After Elly’s body was returned to Australia, a third autopsy was performed in Melbourne on 22nd November 2016 by Dr Lynch, a forensic pathologist working at the Victorian Institute of Forensic Medicine (VIFM). The VIFM is located within the same building as the Victorian Coroners Court and provides forensic medical services to the court.

Further medical analysis was later undertaken by Dr O’Donnell, a radiologist at the VIFM, who conducted a CT scan and produced a radiology report in 2019.

Other individuals referenced in the transcript include Jade O’Shea, a friend of Elly who was present in Tofo at the time and was one of the last people to see her alive, at approximately 11:30 pm on 8 November 2016.

The court proceedings also involved several members of the Coroner’s staff and legal representatives. Mr Yuile appeared as legal counsel for the AFP. Ms Smith served as Coroner’s Assistant to His Honour Mr Cain. Mr King Taylor originally held the role of Coroner’s Assistant throughout much of the investigation before retiring approximately a year prior to the final stages of the proceedings. Mr Ross Treverton subsequently assumed the role.

Elly’s family were present throughout the process, including her mother, Mrs Nicole Cafarella, and stepfather, Mr David Cafarella. I, Mr Warren, am Elly’s father.

Certain medical material referenced during the proceedings cannot be reproduced publicly. In particular, the radiology images showing density measurements of 1209 HU within the upper airways and 947 HU within the lower airways form part of a medical report contained within the official brief and cannot be published here.

The transcript extracts and accompanying explanations that follow highlight key factual statements made during the inquest, including significant forensic evidence provided by medical experts, as well as matters raised concerning the handling and interpretation of evidence during the investigation.

Conclusion

The evidence presented during the inquest into Elly Warren’s death raises serious concerns regarding the adequacy of the investigation and the conclusions that were ultimately reached. Key forensic findings, investigative omissions, and inconsistencies in the handling of evidence appear to have limited the ability of the proceedings to fully examine the circumstances surrounding Elly’s death.

Of particular concern are unresolved forensic issues, including the presence of sand within Elly’s airways, the failure to collect potentially critical forensic samples at an early stage, and the apparent exclusion or minimisation of independent expert evidence that may have provided important clarification. When considered together, these issues raise fundamental questions about whether all reasonable investigative avenues were explored and whether the available medical and forensic evidence was appropriately weighed.

The investigation involved multiple jurisdictions, including Mozambique, South Africa, and Australia, and required coordination among law enforcement authorities, diplomatic officials, and forensic medical specialists. Several independent medical examinations were conducted, and the inquest transcript provides critical insights into the investigative processes and medical evidence considered by the court. Understanding the roles of those involved, the sequence of events, and the findings of forensic examinations is essential to properly evaluating the conclusions reached.

For Elly’s family, this is not about revisiting the past unnecessarily it is about ensuring that the truth is fully understood. No family should face unanswered questions about the circumstances of a loved one’s death. When critical evidence is overlooked or dismissed, justice is compromised, and the truth may never be fully known. The concerns raised in this inquest highlight the vital importance of thoroughly examining all evidence, giving full weight to independent expert analysis, and ensuring that every step of an investigation is conducted with rigor and integrity. Transparency, clarity, and accountability are essential not only to honor Elly’s memory, but to ensure that every family can have confidence that the truth will always be sought and revealed.

Oral submissions

MELBOURNE MONDAY 11th DECEMBER 2023 BEFORE JUDGE J. CAIN, STATE

CORONER UPON THE BODY OF: ELLY WARREN

MS A. SMITH appeared to assist The Coroner.

MR A. YUILE appeared on behalf of the Australian Federal Police.

MR P. WARREN was not represented by Counsel.

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HIS HONOUR: Good afternoon, Mr Warren.

MR WARREN: Good afternoon, Your Honour.

HIS HONOUR: I understand Mrs Cafarella is online and I've also got Mr Yuile online and Ms. Smith at the Bar table.

MS SMITH: Yes, Your Honour.

HIS HONOUR: By all means, take a seat, Mr Warren. Does that cover everybody? Okay.

I will start by acknowledging the traditional custodians of the land on which we meet, the Wurundjeri Boonwurrung people of the Kulin Nations and pay my respects to elders past and present and any First Nations people that might be either in court or viewing this proceeding remotely.

The purpose of today was to allow you, Mr Warren, to make oral submissions further to the written submissions that you've already made.

MR WARREN: Yes, Your Honour.

HIS HONOUR: It was, I think, when we concluded the last hearing we hadn't yet got to a point where we had decided whether we would have oral submissions, it was going to be a matter to be reflected upon once we'd had the written submissions but I do note that you were enthusiastic about, or keen to make – have the opportunity to make written submissions – sorry, oral submissions, so that's the purpose we've convened today.

MR WARREN: And I thank you for that opportunity, Your Honour.

HIS HONOUR: No, that's fine, happy to – before we get underway is there anything you want to say, Ms Smith? I don't I think there's much you want to add.

MS SMITH: I – – –

HIS HONOUR: But if there is, I'll give you this opportunity.

MS SMITH: Thank you, Your Honour, you've covered

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some of the Warren points that I was going to raise, however I did just want to mention that Mr Warren's request for oral submissions was received by the court on 11 October and there's been I guess a short delay in this submissions hearing occurring because additional information was sought from Mr Warren and his representatives with respect to the points that he wished to cover in his oral submissions today and I just wanted to note that a summary document outlining those points is provided for your consideration late in October.

After considering that request in some detail, the actual request for oral submissions was granted on 30 November and the parties were subsequently advised. For the sake of completeness,

I also wanted to note that this morning Mr Warren's representatives provided the court with an additional document which contained some images that Mr Warren wishes to refer to, as I understand it, during the course of his oral submissions and that document has been provided to the Commissioner's representatives as well.

Lastly, Your Honour, I won't be making any oral submissions today as there's nothing further that I wish to add to the written submissions of counsel assisting that were previously provided to the court. So subject to there being anything from Mr Yuile, I would hand over to Mr Warren.

HIS HONOUR: Thank you, Ms Smith. Mr Yuile, is there anything you want to say before we got underway?

MR YUILE: No, Your Honour, thank you. I – depending on what Mr Warren has to say I may ask to say something short at the end but at this point, no.

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HIS HONOUR: Yes, thank you, I assumed that was the position. Okay, Mr Warren, I'm in your hands.

MR WARREN: Your Honour, thank you for giving me the opportunity to present my oral submissions to the court. The evidence given at the inquest has clarified critical key events which demonstrates the circumstances of Elly's death which are highly suspicious and a finding that Elly was a victim of homicide would be appropriate in this matter.

This would be consistent with the determination of the Mozambique authorities that Elly's death is a murder and the conclusion of the investigating authorities should carry significant weight for this court.

Your Honour, the AFP earlier this year, as you are aware, went over to Mozambique and they spoke to the authorities over there and they found some information which stated that ah they now have concluded that Elly's death was a homicide. They also state that they had some suspects and they're looking at the perpetrators which was conveyed to the AFP.

There was also some update from that in June of this year I think it was, with the presiding judge in Mozambique. I'm just wondering if the court has any update on – further on that?

HIS HONOUR: I haven't – I'm not aware of anything and Ms Smith is shaking her head so that to me means that she has no other – no update. I think the last piece of information we have was the letter that was sent following the meeting. I can't remember the date of that.

MS SMITH: That's correct, I believe it was around 19 June.

HIS HONOUR: Yes.

MS SMITH: It's contained in the coronial brief.

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HIS HONOUR: Yes. Yes, I think that's – which concluded, if my recollection is correct, that none of the information that they held would be released until the investigator would move to the next phase.

MR WARREN: Yes.

HIS HONOUR: Away – out of where it's currently which is described as the investigation phase before the investigating judge.

MR WARREN: So I think that – from what I could gather the presiding judge was going to decide on whether – the next step of the investigation, is that correct?

HIS HONOUR: And he had three options as I understood it.

MR WARREN: Yeah.

HIS HONOUR: Yes, or he considered he had three options.

MR WARREN: Yes. With this in mind, there are five key points that I propose to address the court on today.

I'm going to start with the volume of densely packed sand found all the way down my daughter's airways, I will then discuss the evidence that supports the conclusion that Elly's body was moved after her death and when the AFP became aware of the possibility Elly's body had been moved.

I will conclude by addressing the AFP's decision not to submit a mutual assistance request and the circumstances in which the AFP obtained a clear photograph of Elly's body in situ.

My first point, Your Honour, is the abundance of sand found in

my daughter's airways.

Turning to the volume of densely packed sand found in Elly's airways, the overwhelming evidence during the inquest demonstrates that there was a significant amount of densely packed sand present throughout Elly's airways. Um, Your Honour,

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I feel that the inquest was very informative here with um - especially with Dr Klepp's evidence about the evidence that she gave about the packed sand inside of Elly's airways.

HIS HONOUR: Yes, I agree.

MR WARREN: And concurred with the Mozambique autopsy. Ah so it's interesting that they were really on the same page and then we had Dr O'Donnell's radiology report which also has clarified the high-density volumes within the airways even after the two previous autopsies, And I feel that they ah are some very key factors there that came out from the inquest.

In my submission, it is highly unlikely that this packed sand in this manner would have occurred without the involvement of a third party.

Um, Your Honour, the other possibility that was mentioned in the inquest was that Elly had just fallen over in sand for some other reason um and inhaled the abundance of sand deep down into her airways.

Now, in my reply submissions, I have mentioned in there about the Bureau of Australian Statistics. Over the last 60 years they have recorded the cause of death since - in the 1960s, so it's been about 60 years, and um they haven't or I haven't discovered any one that has just fallen over in the sand inhaled the abundance of sand that Elly has and has caused their death. Um so I consider this to be a highly unlikely factor that this has occurred considering the evidence at the inquest where Elly did not have much to drink and drugs were not involved.

What other aspect do we have? We have a lot of or

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very suspicious evidence which I will talk about further in my submissions to suggest that um there was a third party involved. While recognising the limitations of the Mozambique autopsy, it does conclude and explain at no.4 and no.5 that the abundance of sand was detected all the way down my daughter's airways. Um this is actually

referenced in the brief, volume 1, p26, 28 and we can see here - I don't know if Your Honour looks it up.

HIS HONOUR: No, look, I might - I accept that - - -

MR WARREN: You accept? Okay.

HIS HONOUR: - - - there's large volumes of sand.

MR WARREN: All right.

HIS HONOUR: And I accept the evidence that - - -

MR WARREN: Yep, yep.

HIS HONOUR: - - - it was however it's described, packed, and I have also had the opportunity to review the evidence of Dr Klepp and also of Dr O'Donnell.

MR WARREN: Yes, okay, thank you, Your Honour. Um and in this, it also states mechanical asphyxiation um and homicide as the ah cause of death but those points in the autopsy are there and they do um describe the sand that the initial autopsy had discovered. This was supported by Dr Klepp's evidence and Dr O'Donnell's radiology report which recorded very high-density levels of sand in Elly's upper and lower airways.

For example, Dr Klepp gave evidence that she was - regularly examined bodies in South Africa who had inhaled sand by being buried alive after frequently gold mines collapsing in South Africa. Now, this was um quite an evident point that she

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did raise, Your Honour, at the ah inquest and I found that this was quite interesting because she indicates that she's had a lot of experience with people that have inhaled sand and died from this um - from this so I thought that was very interesting. Against this background of Dr Klepp's experience, she gave evidence that and I quote,

“I have seen sand but I must say I have never ever, ever in 44 years seen as much sand in the oral cavity, the trachea and the bronchiole as I did in Ms Warren”.

Um I - I - I was really surprised at the inquest of that statement. I - I just - that sort of um - I find that that's pretty compelling evidence with the sand that was in Elly's ah lungs at the - and it tells true stories, you know, that um there was um - even after previous examination, she had discovered the sand was ah - was in abundance. And that's on

transcript page, Your Honour, 181, that evidence.

In supporting the evidence by Dr Klepp, subsequently she

described Elly's airways “chock-a-block”, packed with sand, and

that's on Transcript 181, 182.

Dr Klepp's observations were particularly insightful in circumstances where Elly's body had already been subjected to an initial examination in Mozambique and this volume of sand was still packed chock-a-block and able to be observed still in this state, after the initial examination.

Further, the radiology scan undertaken by Dr O'Donnell

recorded very high mass density levels of sand in my

daughter's upper and lower airways, despite being completed

after two previous autopsies examinations

HD:SB 11/12/23 Court 2 253 DISCUSSION Warren.

as I've previously said and this sand at the back of the nose, that's - Dr O'Donnell's found has a very high density level, would have to pass through the nostrils which is a very small opening, as we are aware, to end up at the back of the nose as it has. Dr O'Donnell's report records a density reading of 1290 HU at the back of my daughter's nose.

This measurement is taken with the reference to the method of the Hounsfield unit of measurement, which is also referred to as HU, in my submissions. Your Honour should have a copy of three charts titled 'Documents referred by Mr Warren' before you.

HIS HONOUR: I've looked at them, yes.

MR WARREN: Yes, this contains three charts which I have extracted from publicly available sources. If we compare the density reading at the back of Elly's nose to figure 1, we can see on this figure chart that we have pottery and cement, and a density level of between 1300 and 1500 and Elly's density level was recorded at 1290, which is an extremely high density level, Your Honour, and you know that's - that in itself also tells us that even though the cleaning from Dr Klepp, that that's the density level that was in the airways at the time.

This contains - ah sorry, this contains, yeah, three charts which I've - yeah, I've said that, sorry. Figure 1 and Figure 2. Figure 2 is the chart which shows the wood, and that comes up at 1250 HU. And Elly's reading was 1290 HU. So that's quite significant as well.

Keep that there. Um, I also have Your Honour, in reference in a brief, Figure 1 Figure 2 Figure 3

Note the foreign material comparisons with cement and pottery are above and the 1300HU line on the graph to 1500HU and Elly’s reading was 1290HU.

1290HU is at the back of the nose and 947HU is in trachea and lungs In fact the lungs were full with sand.

What is very interesting indeed is Mr. Cain has not entered these very high density reading in his findings.

This proves the sand was there in volume when the Melbourne Pathologist from the VIFM conducted his autopsy.

It must be noted that any washing from Dr. Klepp doesn’t reduce the amount of sand present here in this instance as this Radiology report proves this high density masses of sand were THERE still after her washing when the Melbourne pathologist completed his Autopsy!!!

Note;- The highest wood HU level here is OAK 1250HU there are probably high wood density’s but this is the highest on this chart and the only wood chart I could fine with HU values. Elly’s is 1290HU even higher.

This is at the back of the nose as the washing from Dr. Klepp did not remove or dislodge this mass of densely packed sand.

This is a very high indication of how dense the sand was at the initial autopsy in Mozambique from this mass of sand at the back of the nose not to dislodge from washing by Dr .Klepp.

Note:- This graph shows the density HU readings of various organs with in the body.

The range of cortical bone starts at 300 HU and ends at 1200HU. The Lungs start at -500HU. the interesting factor here is the variance as lungs start at -500HU Elly’s reading lower lungs 947HU variance is 1447HU. The trachea and both of Elly’s lung trees are completely full with white material (SAND) in the Radiology images.

Note;- I can’t publish the radiology Imagines on here 1290 HU and

947 HU as they are part of the Brief in Volume 1, pages 67, Image

of 1290HU and Page 72, image of 947HU. the above graphs are not

part of the coronial brief.

MR WARREN: (continuance) volume 1, p67, a radiology report, the image of 1290 HU and it's this image here. Um, . these clearly show with the white bright areas the masses of sand with the density readings of both 1290HU at the back of Elly’s nose and the 947HU in the lower airways trachea and both lung trees.)

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find that these images are a little bit clearer than the ones in the brief.

HIS HONOUR: Yes, Mr Yuile won't be able to see that, but we can perhaps accommodate that, but is it - I perhaps should say to you, I accept there was a significant volume of sand in Elly's lungs.

MR WARREN: Yep, yep.

HIS HONOUR: If there's a sort of point beyond that that you're leading to, it might be worth moving to that now.

MR WARREN: Yep, okay.

HIS HONOUR: Because I do accept the sand volume in the lungs was significant.

MR WARREN: Okay, if you'd just bear with me - - -

HIS HONOUR: Sure, yes.

MR WARREN: I'll pass through some of what was going to - - -

HIS HONOUR: Yes, well, I'm not trying to restrict your opportunity.

MR WARREN: Yeah.

HIS HONOUR: But I might as well give you the opportunity at least, knowing where my head is at on some of these issues.

MR WARREN: Yep, yep, okay. This probably may be significant, ah if you'd just bear with me, Your Honour. Dr Klepp gave evidence that for the sand to reach Elly's lower airways as it had, she - she would've needed to be alive, at the time the sand entered her airways. This confirms that for the sand to reach Elly's lower bronchial and her lungs, it - it has entered her airways prior to her death.

IT MUST BE NOTED:-that it is also a normal procedure at autopsy to remove all organs and place them inside plastic bags for transportation.

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In concluding the abundance of sand, it is very important Your Honour that these two very high-density readings of 1290 HU and 947 HU respectively, are placed into perspective. These levels of high density are still present in the airways, even after two autopsy examinations and the cleaning from Dr Klepp.

This is in addition of - this -sorry, this is an indication of the sheer magnitude of packed sand the Mozambique doctors were confronted with at the initial autopsy and is the key reason why they have no hesitation in concluding Elly's death was a homicide.

I really do firmly believe that that's the case in - that's in - in this - that's how they examined it and that's why they came up with that conclusion, Your Honour.

The presence of packed sand all the way down Elly's airways is the common denominator between all medical professionals and the court can be satisfied, as you are Your Honour, that the sand obstructed Elly's airways and causing her death.

That concludes the sand point that I had.

Now I'd like to move on - the next point Your Honour is

referring to the movement of the body.

I now wish to take the court to the relevant key evidence which demonstrates that Elly's body was moved after her death. On 18 November, Noel Scruton of the AFP and Stacey Walker from DFAT attended a meeting with Inspector Cudzi where he informed them that the local authorities suspected my daughter's body was moved to the location she was found after her death. Further in my affidavit dated 17 January 2023, I had deposed that I travelled to Tofo in October 2018 and I had organised to

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meet with the Chief Inspector Cudzi at the Criminal Investigation Headquarters, reference brief, volume 2, p290. And this is from my affidavit and this - in my affidavit on p290. It explains a fair bit about that meeting with Inspector Cudzi.

Chief Inspector Cudzi was the chief superintendent at the time and in charge of all criminal investigations and instruction in the - in Zimbabwe district. During this matter,

Chief Inspector Cudzi informed me that in his opinion, my daughter was murdered at the main beach and her body was moved to the toilet location after her death.

He states, and I quote, 'She was murdered, killed at the beach

and moved to the toilet location after she was killed. The sand

was a different colour in her airways, to where the body was

located'.

In addition to the opinion of the local authorities, the evidence of both myself and Jade O'Shea during the inquest also demonstrates that Elly's body was moved. I gave evidence that the sand at the toilet block where Elly was found is shallow and dark in colour. Jade O'Shea also gave evidence that the area around the toilet block is quite rocky.

The clear crime scene photo shows Elly's body laying flat on top of a firm dark sandy pathway next to the toilet block. In this photo you can see at her feet level and above her head, that the sandy path where her body is laying is firm and not very deep.

Your Honour, I do have three photographs relevant to the crime scene which I feel are extremely important under the circumstances and um if I may present these important photos to you, because - - -

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HIS HONOUR: Are they photos that are already in the brief?

MR WARREN: Yeah, but I couldn't find them in the brief, Your Honour. They must be in the tendered brief.

HIS HONOUR: Well, I've already got them, that's okay, but I'm not in a position to take photos that I haven't already seen.

MR WARREN: No, they are - they - I'm pretty sure they are in the brief, but I just - - -

HIS HONOUR: Well perhaps you could - have you got them there now?

MR WARREN: I have got them here, but they - they are extremely relevant and I probably - - -

HIS HONOUR: Could you show them to Ms Smith so we can just work out whether they're in the brief.

MR WARREN: Probably do need to talk about just a couple of the things that are in the photos, to um - that you may not be aware of, Your Honour.

HIS HONOUR: Yes certainly, I just wanted to check that they were photos from the brief.

MS SMITH: We've got them.

MR WARREN: You got them? Yes, they are.

HIS HONOUR: Yes.

MR WARREN: Do you - - -

HIS HONOUR: No, I'm happy for you to proceed to talk about them.

MR WARREN: Do you want me to - - -

HIS HONOUR: If it's helpful for me to have them while you talk about them, then - - -

MR WARREN: I think it is, Your Honour, yep.

HIS HONOUR: Will be passed up to me.

MR WARREN: This first photo was taken by Stacey Walker on 17

Note: This is not the same photo I am talking about with Mr. Cain as that photo is in the brief and I am not allow to publish the original photos. However I took photos of the same area on my trip to Tofo in 2018 this is of the same area that we are talking about in the oral submissions. I refer to a red cross with Mr. Cain well in this photo it has a blue cross where Elly’s head was. Elly was face down with her on top of the sand and her head slightly tilted to the right with her feet at this end. The surface of the pathway is firm and rocky but this is taken two years after. However there is not much difference in the area.

The second photo that Mr. Cain and I are talking about has ladies in it and one lady has a pink dress that photo was taken in November 2016. This photo above is taken in 2018 and you can just make out the same black bin to the left of picture Mr. Cain and I are talking about two years on and its the same black bin.

The fisherman put there motors in this black bin which they fill up with fresh water from the only public fresh water tap in Tofo to purge out the seawater from the motor.

In this photo you can also see the entranced to the men’s toilet so it was taken in the same area. The reason why this photo is important is this is the reason the fisherman was there at 5am that morning to clean out his motor. You can also see how firm and rocky the surface is.

This third photo shows the contrast between the two sands. This is also not the same photo with Mr Cain but it gives you a good idea how different the sand is from the main beach to the roadway.

The main beach is far left and white and the road is brown there is a major difference and the sand at the toilet block is even darker where they do all their washing.

This is a very important showing the difference between the two sands on the same photo because this is how inspector Cudzi knew Elly’s body was moved after her death when he turned up at the crime scene, as Elly had the white beach sand in her mouth not the dark brown sand from where her body was found at the toilet block.

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November, and you can see in that photo there's a red cross and that is the approximate position of my daughter's head, at the crime scene. Um, and you can also see that there's quite a lot of rocks and that the sand is soft, but it's not very deep, not deep at all in, in that area. And the sand is dirty and dark.

Um, in eh second photo it's very interesting, Your Honour. This is - you're looking at the lady in the pink dress here.

HIS HONOUR: Yes.

MR WARREN: This is the only fresh water tap in Tofo and this is where they do their washing and it's completely dirty and the sand is dark and very dirty there. And Elly's body was around the corner where the women's um entrance is. Um, and it's interesting to note where these three ladies are walking, it's very rocky. You can see how rocky and hard the surface is there around the toilet block. Now this photo was taken by Mr Gray. The other one was taken by DFAT on 17 November. This was taken by Mr Gray on 13 November, right.

Now it's interesting to also note that the fisherman that found Elly, lifts this black bin on the left hand side here. The reason why the fisherman come here early in the morning is because they perch their motors with fresh water from this bin. They put it on the side of the bin and because it corrodes their motors if they don't do that. So that's why they're there at that time in the morning. And that's how they discovered Elly's body. Um, I'm not sure whether that's relevant, but you might be interested to know that um, that's how - how come the fisherman was there at that time. Um, other

HD:SB 11/12/23 Court 2 259 DISCUSSION Warren

than that, that just gives you a pretty good overview of the area and how dirty it is there, Your Honour.

HIS HONOUR: Yes, thank you.

MR WARREN: In this other photo, this is really important because when we're talking about Inspector Cudzi and how he says about the different colours of sand, this is in the same photo. You can see the different colours, there's quite a big contrast between the sand down the beach and the sand at the roadway, and then you've got the toilet block even darker. So we're talking beach sand is - you know, the contrast is - is quite severe here and um - and this is why he was saying that Elly's body was definitely moved to the toilet block location after her death.

Given the volume of sand present in Elly's lungs, there can be no doubt my daughter's body was moved to this location after she died with her head on top of the sand lying flat on this firm sandy pathway.

Dr Klepp states in evidence:-

“I could not see Elly compromising her airways With her body

lying flat in this position in the photo on this firm surface”.

Its a point that no sand sample was not take”

This was also confirmed by - by Chief Inspector Cudzi of the observations in the meeting we had with myself, Mr Sutton, my own observations from attending the toilet block location and Jade O'Shea's evidence during the inquest which is um transcript p.27 and 156.

The fact that Elly was moved after her death is highly suspicious circumstances as it confirms the involvement of a third party.

This is supported of the finding that Elly was murdered.

HD:SB 11/12/23 Court 2 260 DISCUSSION Warren

I'd like to move on to the next point, Your Honour, and this is

the AFP's knowledge of the movement of Elly's body.

With respect to the knowledge of the - of the Australian Federal Police, the material before the court clearly shows that the AFP had knowledge of the possibility that my daughter's body had been moved post-mortem. In evidence given at the inquest, the AFP and DFAT state they had visited the crime scene on 17 November 2016 and the AFP had taken a sand sample from the toilet block area where my daughter's body was found.

As previously mentioned, on 18 November, Mr Sutton and Mrs Walker attended a meeting with the Chief Inspector, Cudzi, where he informed them that the local authorities suspected my daughter's body was moved to the location she was found after her death.

It was confirmed at a later date that the AFP were fully aware of this in 2016 as it states this in her action sheet on p15. At a second meeting with Chief Inspector Cudzi on 9 August 2017, it states in the AFP action sheet and I quote,

'Mr Cudzi indicated that they were still working on the

possibility that Warren had died elsewhere and been

transported to the position where her body had been found'.

Now, this second meeting is 10 months after the first meeting on 18 November. So Mr Scruton is indicating here in his action sheet and they're still working on the movement of Elly's body. This confirms that the AFP and DFAT were fully aware of my daughter's body having been moved after her death in 2016 and this is suspicious circumstances they should have investigated as they had the ability of the second sand sample taken inside the body at the Melbourne

HD:SB 11/12/23 Court 2 261 DISCUSSION Warren

Mortuary for comparison. The sand sample the AFP had taken at the crime scene should have been forensically examined and compared with the sand sample from my daughter's body.

As I have previously said, the radiology report prepared by Dr O'Donnell shows there was plenty of sand in Elly's body in the upper and lower airways, trachea and lungs at very high-density levels. Bearing this in mind, a second sample should have been taken from my daughter's body at the Melbourne autopsy and forensically analysed for comparison with the sand sample taken from the crime scene.

The radiology scan has - was conducted before the Melbourne autopsy clearly showing my daughter's airways and lungs full with sand as Dr O'Donnell clearly states in evidence. Your Honour, in concluding um this point, with the movement of Elly's body and sand sample, the fact that no comparison was undertaken represents a significant missed opportunity in the coroner's investigation at the time.

The family feels that this is one piece of critical evidence which has hampered the family's attempts to seek answers.

The next point, Your Honour; concerns for mutual assistance

request.

Turning to the circumstances surrounding the AFP's decision not to issue a mutual assistance request, Commander Smith gave evidence that the AFP did not classify Elly's death as a crime and that is the initial reason why the mutual assistance request was not sent to the Mozambique Attorney-General.

The letter for Mr Bruce Giles dated 17 December 2021 in his report in the brief clearly states twice at

HD:SB 11/12/23 Court 2 262 DISCUSSION Warren

no.16 and 17 that the requirements for the mutual assistance request is simple and I quote, 'Where there is reasonable cause to believe that an offence has taken place', reference brief volume 2 p545,

and he mentions that twice, Your Honour, here in this letter. Contrary to Commander Smith's evidence, the AFP were given sufficient information early in the investigation. Mozambique autopsy which notes that the reason the Mozambique police asked for an autopsy was because of the suspicious circumstances at the crime scene were Elly was found and, no., there was an official police report on 10 April 2017. This official Mozambique police report was given to the AFP on 10 April by Stacey Walker, as indicated on p13 of the AFP action sheet.

And that's reference brief volume 2, p344.

And it's interesting to note that in this, Mr Scruton's described this as a Mozambique document and suffocation, when in actual fact it is a - an official police report and it states homicide. The autopsy and police report state that homicide is the cause of Elly's death. This should have been reasonable cause for the AFP to review their decision not to issue a mutual assistance request on the grounds that there was sufficient information suggesting Elly's death was a crime.

Further, a mutual assistance request was always possible as the Mozambique Assistant Attorney-General has recently stated in an update from the AFP and I quote,

'That the only way the coronial enquiry in Australia could

officially acquire the case file would be through a mutual

assistance request once the instruction phase is completed,

HD:SB 11/12/23 Court 2 263 DISCUSSION Warren

which is what we talked about earlier.

HIS HONOUR: Are we still in the instruction phase?

MR WARREN: Yeah, yeah.

HIS HONOUR: So even if a mutual assistance request had been made at the time you refer to - -

MR WARREN: Yes.

HIS HONOUR: Are you saying that something different would've occurred?

MR WARREN: Yes, and I'll probably talk about that here.

HIS HONOUR: Well, perhaps talk about it now because it might be convenient for me to understand what you're actually saying about that.

MR WARREN: Well, the mutual assistance request is - is a - is a - I'll just hold it, I'll look on - is a request that um is available to countries, so that they can communicate and - and work together.

HIS HONOUR: I agree with that.

MR WARREN: Yep.

HIS HONOUR: But my question is more around if the Deputy Attorney-General's view is correct and I assume it is, that at any time, if a mutual assistance request had been made - - -

MR WARREN: Yes.

HIS HONOUR: - - - then the documents would only be released once the instruction phase was completed and the secrecy provisions are relaxed.

MR WARREN: Yes, that's - that's true.

HIS HONOUR: We're still not in that phase yet.

MR WARREN: No, but a mutual assistance request could've been um issued earlier on in the investigation.

HIS HONOUR: It may have been, but what I'm really coming to is

HD:SB 11/12/23 Court 2 264 DISCUSSIONWarren

what difference would it have made to the outcome of any investigation if it was made I 2017, in 2021 or 23 or for that matter, 24, unless the instruction phase is complete.

MR WARREN: Well, it does allow for another country's authorities to work with that - those authorities and as um Mr Scruton did, that the Mozambique authorities were difficult to work with, right. If the mutual assistance request had of gone through the process and gone to the Attorney-General in - the Mozambique Attorney-General, then they would've looked at that.

Now it's up to them to say yes or no. If they had of said yes, the government would have told their authorities to cooperate with the Australian authorities. Now the other major point here, Your Honour, is that before forensically testing, all right um evidence, um the Mozambique authorities didn't have the capabilities of DNA testing.

HIS HONOUR: But I think - - -

MR WARREN: And we could've - we could've helped them in that area.

HIS HONOUR: But I think, and I agree with what you're saying, but we also have evidence I think from Commander, yes, Smith and from the others, that regular offers of assistance were made, but not taken up. Now, I think what you're saying to me is that had a mutual assistance request been made, then that would've given - and I guess accepted or - no, made, then that would've given some greater weight to the support and assistance that Australian authorities might've been able to offer.

MR WARREN: Correct, Your Honour, and that's what I'm making out here.

HD:SB 11/12/23 Court 2 265 DISCUSSION Warren

HIS HONOUR: Well, I guess where I'm up to on that is - - -

MR WARREN: That's - that's an - - -

HIS HONOUR: That's in a land of speculation.

MR WARREN: But that's an official request.

HIS HONOUR: But it's an official request that they say they ignore, until they're out of the instruction phase.

MR WARREN: But the AFP only sent a personal letter.

HIS HONOUR: But again, on the information I've got, I don't say it would've made no difference, but getting access and full cooperation really involved the instruction phase being completed and we're not there yet.

MR WARREN: Well, I'd just like to mention this, Your Honour. However, it clearly states the MA - the mutual assistance request act, that a treaty is not required between the countries because the Mutual Assistance Act was implemented so all countries can work together on issues they have, opening the door for more efficient exchange of information and communication channels between the two countries concerned. The mutual assistance request also allows for collaboration between both authorities on the case, or issues they have between the countries concerned, because it's an official request. Now they may have said no, um but there's a chance that they could've said yes. Which means that I - I - surely Your Honour, this would've made a big difference in the coroner's investigation in 2016/17, if the official request had of been sent to Mozambique and the government there instructed their authorities to support and help the AFP. Now I think Your Honour that would make a difference, it would make a difference to - - -

HD:SB 11/12/23 Court 2 266 DISCUSSION Warren

HIS HONOUR: It may or may not, I'm sure Mr Yuile will have something to say about that when he has his opportunity to speak. I understand what you're saying and I've understood and followed your logic and that is that if a request had been made earlier, then it's possible that the Mozambique authorities may have asked the AFP for some assistance and done something differently, but I'm also aware that numerous offers to assist were made, albeit without the imprimatur, an informal - of a formal mutual assistance request.

MR WARREN: But what I'm saying here, I think, is that through that request, because it's official, their government then instructs their authorities to cooperate. Now, you - you mentioned just then that there - there was problems with them cooperating but if - if they - - -

HIS HONOUR: No, I didn't say that. I said they made offers to assist - - -

MR WARREN: Offers to assist and - - -

HIS HONOUR: - - - and they weren't taken up.

MR WARREN: - - - they weren't taken up.

HIS HONOUR: I don't take it any further than that.

MR WARREN: Yep. So if that mutual assistance request had been granted and the government had responded and said, 'We want you, Mr Cudzi', to help with the AFP, allow them to help you with the investigation and also with DNA testing because they just did not have that capability, um surely that would make a difference to the coroner's investigation.

HIS HONOUR: It's speculation. I don't know but I understand what you've submitted.

MR WARREN: Okay. Well, the court has actually heard evidence

HD:SB 11/12/23 Court 2 267 DISCUSSION Warren

from Stacey Walker and from her statement about the poor level of resourcing available to the Mozambique police and the standards for forensic testing in Mozambique. That's in her statement and it's

referenced on p135.

I'm quite sure that the AFP with our sophisticates levels - standards would have made a big difference in the coroner's investigation. The AFP were fully aware of the - we might have covered some of this so if you just bear with me, Your Honour - - -

HIS HONOUR: Sure.

MR WARREN: I'll just read through it. Just I don't want to repeat myself. Yeah, well, I'm just going to conclude on the mutual assistance request on how I feel about it, Your Honour, and the mutual assistance request, this should have been sent early on in the investigation through the official channels set out in the Mutual Assistance Act. The family was never informed of the AFP's review process if there was a reasonable cause to suspect a crime of an Australian citizen in a foreign country.

This represents another missed opportunity I feel, Your Honour, um the case and family feels that this deprived us of justice.

Your Honour, the next point and the final which is concerning

the crime scene photo.

I wish to draw the court's attention to the circumstances in which the clear photo of Elly's body in - in - in situ was not disclosed to the court in 2016-17. The conduct of the AFP in relation to acquiring the clear version of the photo and not providing it to the honourable court but giving it to the Mozambique police.

HD:SB 11/12/23 Court 2 268 DISCUSSION Warren

The non-return of Elly's possessions and the Victorian Institute of Forensic Medicine requires examination.

HIS HONOUR: Sorry, what was the reference to the Victorian Institute of Forensic Medicine?

MR WARREN: Well, they were given the clear crime scene photo. I have a little bit further down in my submission about that, Your Honour.

HIS HONOUR: All right. I'll let you continue.

MR WARREN: In the most recent correspondence from the Australian Government Solicitor to the court on 16 June 2023, the AFP has indicated they acquired the clear version of the crime scene photo which was originally from a fisherman via DFAT on 25 November 2016 and that's

referenced in the brief volume 2, p555

and that goes on to indicate that they received the blurred photo - the blurred photo first and then at a later date, they received the clear photo and they also sent the photo to the Victorian Institute of Forensic Medicine. This photo was then handed to the Mozambique police by the AFP SLO which is Mr Scruton who was the AFP representative at the Australian Embassy in Pretoria, South Africa. It is also stated in the letter from Clare McCormish, the Assistant Secretary of DFAT on 22 March 2019 that DFAT received the unblurred version of the crime scene photo and had given it to the AFP which in turn passed it onto the Mozambique police in 2016 and I quote,

'The photo was passed to the Mozambique police by the AFP SLO on 8 December 2016', and that is in Clare McCormish letter dated 22 March 2019 and that's referenced in the brief at volume 3, p59 and that's on

HD:SB 11/12/23 Court 2 269 DISCUSSION Warren

the second page of her letter and it states under, 'Photos and other items', Your Honour. The handing over the clear crime scene photo to the Mozambique police on 8 December by the AFP was overlooked in this latest letter from the AFP's legal representative. As previously stated in evidence, the family's consent for the photo which explicitly shows our daughter's naked body which was disclosed to the Mozambique authorities was not sought and the family is very disappointed and hurt by this.

The AFP did not classify Elly's death as a crime yet they sent an explicit photo of my daughter to a foreign country without the permission or knowledge of the coroner or the family;

reference volume 2, p270, 274.

This is actually in my affidavit, and it explains this in quite um detail and it's all facts, Your Honour, as it's in my affidavit. Um I - I - I personally find this is unacceptable um and to the best of my knowledge, the - the coroner was ah - was not informed of the circumstances in 2016.

This photo is critical evidence entered into evidence at the inquest as it is the only crime scene photo evidence showing the crime scene and a damage to Elly's clothing. The photo tells the truth and depicts Elly's top is ripped apart completely destroying her top and strongly indicates some form of physical struggle had occurred before her death.

Jade O'Shea gave evidence that when she last saw Elly, she did not recall any damage to Elly's clothing. As a result, the struggle which ripped Elly's top must have occurred shortly before or at the time of her death.

HD:SB 11/12/23 Court 2 270 DISCUSSION Warren

Now, Your Honour, it clearly states in the summary of the brief for the AFP and I quote,

The blurred photo was the only available photo of Elly's body

in situ, a blurred photo of a local fisherman's mobile phone

screen'. In this summary,

which is on the second page of the summary entered in the brief, reference brief volume 1, p16,

at the top of the page here, it clearly states that they didn't have a clear version of the photo in 2016. However, this is a clear contradiction to the recent letter sent to the court from the Australian lawyer dated 16 June 2023. The AFP did not carry out their duty as the policing agency as they were responsible for reporting on and informing the coroner of all critical evidence given to them in 2016 for the coroner's investigation.

Mr Sutton has overlooked in his statement even receiving the critical evidence of the clear version of the crime scene photo and handing it over to the Mozambique police.

Mr Sutton has however entered the blurred photo into evidence in his statement which was obtained from DFAT in Tofo just after Elly's death in November as stated by Stacey Walker in her statement;

reference page volume 2, p133,

and in Stacey Walker's statement, she says that the grainy image was given to Mr Sutton and um this blurred grainy photo as Stacey Walker states was given to Mr Sutton by DFAT which was some time before 18 November 2016. Mr Sutton handed this blurred grainy photo over to the Mozambique police on 18 November as stated on p555 of the brief from the AFP lawyer representative in the letter that was dated 16 June 2023. So in effect they're

HD:SB 11/12/23 Court 2 271 DISCUSSION Warren

explaining that Mr Sutton had received the blurred photo before 18 November and he had handed it over to Inspector Cudzi, he then received the clear photo in - on 25 November and he then handed it over to Mr Cudzi again, the clear version on 8 December. I find these circumstances upsetting, Your Honour, and very disappointing and um - and it - it's just - just disappointing.

HIS HONOUR: Just so that I'm clear about that, Mr Warren, your concern about this aspect is that you're disappointed or feel let down that the AFP didn't communicate with you about that?

MR WARREN: Yes, and the coroner as well.

HIS HONOUR: Yes, yes.

MR WARREN: Yep. And - and - - -

HIS HONOUR: But there's no suggestion that had they communicated with you or the court in relation to that and I can't recall - I didn't have carriage of the matter at that time but are you saying that that impacted in any way on the investigation?

MR WARREN: Yes, 'cause I think the coroner having that clear - - -

HIS HONOUR: No, leave me out. How did it impact on you?

MR WARREN: Well, they - they gave the explicit photo of Elly over to the Mozambique police on the 8th and they didn't think that this was a crime at the time.

HIS HONOUR: Yes. But in terms of the - - -

MR WARREN: And I - - -

HIS HONOUR: And I understand that's upsetting to you but in terms of - - -

MR WARREN: I think that's very - - -

HD:SB 11/12/23 Court 2 272 DISCUSSION Warren

HIS HONOUR: Yes. But I can't deal - like, that may be a matter that you deal with directly with the AFP by way of complaint about their conduct. And I'm not unsympathetic to you if that's - I mean your feelings on that but I'm looking at the investigation process.

MR WARREN: Yeah.

HIS HONOUR: And I'm just trying to understand whether you're suggesting that in some way something happened that meant that the investigation didn't go down a particular path or wasn't as thorough or something.

MR WARREN: Yes. So I - I do actually um think that because I - I think this is important critical evidence.

HIS HONOUR: Sure it is but how would it had made any difference if it'd been handed to the coroner back then because - and our ability to investigate it I think is what you're suggesting.

MR WARREN: Well, we might not be sitting here today, Your Honour.

MS SMITH: Sorry to interrupt, Your Honour. I just want to clarify. The AFP did provide us with some clarification on this point earlier this year and there is a letter in the brief which confirms that that photo was actually provided to the police coronial support unit that assisted the court back on November 2016 - - -

HIS HONOUR: Yes.

MS SMITH: - - - which was then subsequently provided to the Victorian Institute of Medicine as well. So the photo has been - - -

HIS HONOUR: In play with us, yes.

MS SMITH: Yes.

HIS HONOUR: Thank you.

HD:SB 11/12/23 Court 2 273 DISCUSSION Warren

MS SMITH: On the court file since that time.

MR WARREN: - excuse me, Your Honour. My understanding is that DFAT gave that photo. Is the AFP claiming that they handed that photo over?

MS SMITH: My reference is from a letter to the court dated 16 June this year in which the AFP just provided some clarification on that point and I can just read it if that would assist.

HIS HONOUR: Yes, perhaps if you read it, that will make it clear.

MS SMITH: So the relevant paragraph is that the AFP were instructed that DFAT also directly emailed the image to the Victorian police coronial support unit on 25 November 2016. It then shared the image with the Victorian Institute of Forensic Medicine as well.

HIS HONOUR: Yes.

MS SMITH: Yes.

HIS HONOUR: Thank you. So it appears from that that it was provided to the police training a support unit, which is part of - or the police unit that assists our investigations and also provided to the Victorian Institute of Forensic Medicine.

MR WARREN: Well, I'm sort at a bit of a loss, but - with that and I will explain, but first of all I'd like to say that as previously stated, the AFP also required the clear version of the crime scene photo in 2016 from DFAT. And in their action sheet, it also states that the AFP subsequently analysed this clear version of the photograph in 2018 and this is on p21 of the AFP action sheet. There was still no um, ah mention of Elly's ripped apart top until I informed Mr Kim Taylor of that

HD:SB 11/12/23 Court 2 274 DISCUSSION Warren

in mid-2019. Now talking about Mr Kim Taylor, the coroner's assistant, informed me that the coroner was not aware of any clear photo or ripped apart top in 2016/17.

Also in a meeting I had with Dr Lynch on 7 September 2017, where three AFP officers and Mr Taylor was in attendance, there was no mention of any clear crime scene photo or ripped apart top.

Dr Lynch states at this meeting, which was recorded and consent, and I quote,

'That he only had a blurred grainy photo and could not see

much from this poor quality photo'.

HIS HONOUR: But, Mr Warren, I'm just not sure where this is taking us. I'm not sure how that would've altered the outcome of the investigation or what you suggest might've been different, had - whether it did or didn't occur, I suspect there'll be different ways. I'm just trying to work out where that takes out.

MR WARREN: Well - well I think the clear photo clearly shows Elly's top ripped apart.

HIS HONOUR: Very well, but - - -

MR WARREN: And I think that that is an indication that there's- there's some sort of you know - - -

HIS HONOUR: That's not in dispute that the top was ripped.

MR WARREN: Yep, yep, but the coroner - - -

HIS HONOUR: The only question - - -

MR WARREN: - - - would've known about that in 2016.

HIS HONOUR: But it wouldn't have made - well, I'm not sure when it came to me.

MR WARREN: Yep.

HIS HONOUR: Because I'm the coroner investigating this now.

MR WARREN: Yeah.

HIS HONOUR: I'm the person that's running the inquest.

HD:SB 11/12/23 Court 2 275 DISCUSSION Warren

MR WARREN: Yep.

HIS HONOUR: I knew the top was ripped.

MR WARREN: Yep.

HIS HONOUR: So are you suggesting I should draw some other conclusion from that?

MR WARREN: Well, this has gone on for seven years.

HIS HONOUR: Leave that aside. I know it's a long time.

MR WARREN: Yep.

HIS HONOUR: And I'm trying to bring this to a conclusion, so if you've got a view that I should draw some other conclusion from it, you need to be really clear about it.

MR WARREN: Okay, well can I put this to you, if you were the coroner in 2016 - - -

HIS HONOUR: I'm not speculating about things like that.

MR WARREN: - - - and you were given that clear photo - - -

HIS HONOUR: I can tell you I'm not speculating about things like that. I'm the coroner that's conducted this inquest. I picked it up last year, I've reviewed it all and in hearing it, we've heard that evidence and I'm aware that the top was ripped. I've had the benefit of seeing the grainy photo and the clear photo.

MR WARREN: Yes.

HIS HONOUR: So if you're getting to the point where you want to tell me that I ought to draw a particular conclusion from that in addition to the ones you've already stated, it'd be helpful if you did that.

MR WARREN: Okay, well if you'll just bear with me, because I don't want to repeat myself again.

HIS HONOUR: Sure.

MR WARREN: I will just read over some of this before - um, yes, the um - well I don't really have much more to say

HD:SB 11/12/23 Court 2 276 DISCUSSION Warren

about that, other than to say um that um the clear photo wasn't available.

HIS HONOUR: And look, I understand your disappointment, regret, whatever the right description is, that a photo of Elly was handed to the Mozambique authorities without you knowing, I understand that, but I'm really trying to work out what you're saying I should do - what else I should do with that.

MR WARREN: Well, I - I don't know, but there's just one thing, if I could ask you, Your Honour. Do you think the coroner should've given permission for that photo to be passed on, even - because the AFP didn't classify this as a crime at the time?

HIS HONOUR: I don't think so.

MR WARREN: No? In respect of the family?

HIS HONOUR: Look, it would've been preferable if they'd spoken to you.

MR WARREN: Yep.

HIS HONOUR: But we can't on the one hand say, 'We want the authorities to cooperate', and to be able to provide them with assistance, and then on the other hand say, 'Well, look, we've got a really good photo here that's probably going to be helpful, but we're not going to provide it to you'. Now I say - I don't say they shouldn't have spoken to you - - -

MR WARREN: Yeah, I - I um - well the family's very disappointed about that.

HIS HONOUR: I get that and that's a matter - by all means, take up directly with the AFP, but it's not within the scope of a coronial investigation.

MR WARREN: Okay.

HD:SB 11/12/23 Court 2 277 DISCUSSION Warren

HIS HONOUR: Mr Warren, just so that I'm clear - well, is there other matters you wanted to deal with, because that seems to be the end of your five points or is there others?

MR WARREN: No, there's, there's - there's a little bit more, Your Honour - - -

HIS HONOUR: Very well. Well, I'll let you - - -

MR WARREN: - - - that I find - that I find relevant. Um, and just bear with me cause I - I don't want - as I said, I don't - we've sort of jumped ahead here a little bit on what I was going to say. This is um - I feel this is important.

With respect to my daughter's possessions, which included her ripped apart top and underwear at her knees, that she was wearing, these were not placed into evidence by the Mozambique police.

The only trace evidence entered into evidence is stated in an official Mozambique police report, dated 11 August 2020. And the items that were placed into evidence were one Manica brand beer bottle, one Coca Cola can and one pack of Pall Mall cigarettes, and that's

referenced in p502, 505.

In fact, the clothes my daughter was wearing were eventually incinerated by the Mozambique authorities. This evidence was obtained by Nicole and David Cafarella in their investigation.

As my daughter's clothes were not placed in the evidence, this could have enabled the AFP to retrieve the clothes, in 2016, my daughter was wearing at the time of her death. The Mozambique police did not have the facilities for any DNA testing on clothing. The Australian authorities were fully aware of these circumstances in 2016 as set out in Stacey Walker's statement, and Stacey Walker's mentioned that, you know,

HD:SB 11/12/23 Court 2 278 DISCUSSION Warren

they haven't got the resources and ah – and when I was over there I had to do a statement for Mr Cudzi and, Your Honour, I had to get it photocopied and they didn't even have that so their resources are very limited.

These clothes are my daughter's possessions and the AFP in their police training would have been fully aware of how vital the clothes are from the body, especially the way the body was discovered with the suspicious circumstances of the damaged top, in the clear version of the crime scene photo, and with her underwear down around her knees. These are highly suspicious circumstances.

The Coroner had asked for all of Elly's possessions to be returned and the AFP had taken the responsibility for retrieving all of Elly's possessions.

The AFP requested the return of Elly's belongings from the Chief Inspector Cudzi during the two meetings the AFP and DFAT had with the inspector. The clothes on my daughter at the time of her death are still her possessions and it states in the action sheet, 'Arrangements were made for the AFP to collect all Warren's possessions at the meeting with Inspector Cudzi, p9 and 15 of the AFP action sheet', and that's

referenced on p340 to 346

and it's there on their action sheet. However, the clothes she was wearing at the time of her death were not returned with her possessions. It states in the Mozambique autopsy the clothes travelled with the body from Inhambane to Maputo for her autopsy on 14 November 2016.

This is also a missed opportunity for DNA testing as cold cases are solved today with the advancement of DNA testing on clothing. This possibly could have helped the Mozambique

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police with identifying the recent perpetrators they had questioned or suspected, therefore this is also extremely disappointing for the family.

and this is the part about the Victorian Institute of Medicine, Your Honour. The Victorian Institute of Forensic Medicine was also given the clear photo in 2016. This is also stated in a letter from the Australian Government Solicitor on the – to the court on 16 June 2023. The reason you sent it to the laboratory in the first instance is for it to be examined. The VIFM was given the clear photo clearly showing my daughter's ripped apart top which was critical evidence and a report was not given to the laboratory – from the laboratory to the coroner or Dr Lynch in 2016 because Dr Lynch wasn't aware of it and that's when he states that in his um – the meeting I had with him.

Elly's family is critical of the AFP's handling of out daughter's case due to the fact the AFP had key pieces of evidence in and since 2016 and yet did not make these available to the court.

This critical evidence however passed onto the Mozambique Chief Inspector Cudzi without knowledge and consent of the family. This demonstrates that the AFP were aware of the significance of the photo, and it ought to have been provided to the Coroner at an early stage with the Coroner's ongoing investigation in 2016.

Now as we have discussed and this is where I'm probably going over it a bit here again, that the – the clear photo was given to somebody – – –

HIS HONOUR: It was given to the Police Coronial Support Unit

MR WARREN: Yes, yes.

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HIS HONOUR: Clear.

MR WARREN: Yes. Your Honour, there should be greater support for Australian families when faced with the suspicious death of a loved one overseas, especially in a third world country which is under–resourced and would likely face difficulties conducting a formal criminal investigation of this magnitude. There needs to be far greater transparency between all authorities and towards the family concerned who are in desperate need to be able to trust that their own authorities are fully committed in supporting all Australians

and in concluding, Your Honour, in summary,

I am asking of the court on the solid evidence presented to the court to deliver a finding that Elly was a victim of homicide. The presence of densely packed sand in Elly's airways combined with the evidence of damage to Elly's clothing and the movement of Elly's body after her death are highly suspicious circumstances and should persuade the court that Elly was a victim of homicide.

I am also asking the court to consider the process the AFP have followed in this matter and the family's experience with them. There needs to be greater transparency for the families of Australians who die suspiciously overseas and changes should be made to ensure that in future Australian families are not left feeling that their loved one has been denied justice or that more could have been done.

Thank you, Your Honour, for giving me the opportunity today to present my submissions and that concludes my submissions.

HIS HONOUR: Thank you, Mr Warren. Just so that I'm – the

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conclusions you're suggesting that I should come to are that the circumstances of Elly's death are a homicide?

MR WARREN: Yes.

HIS HONOUR: The second one was that wherever she might have been murdered or the homicide or the death occurred, I'll say death occurred, it's not the place where she was found.

MR WARREN: Correct, Your Honour.

HIS HONOUR: So she was moved there.

MR WARREN: Yes.

HIS HONOUR: That – and that other evidence of some violence or poor treatment is the T–shirt that is ripped.

MR WARREN: Yes, Your Honour.

HIS HONOUR: That's relevant, that you think that a mutual assistance request should have been made earlier.

MR WARREN: Yes.

HIS HONOUR: But I think you accept that that may not have involved a different outcome because we're still in the instruction phase other than an offer of help which the Mozambique authorities may have taken up or may not.

MR WARREN: If I can just clarify that point, Your Honour. The - they're talking about that they're not going to hand over their case file with the instruction phase still in operation. It doesn't refer to the AFP through the mutual assistance request helping with assistance.

HIS HONOUR: Yes, but the - no, I shouldn't - you will have something to say about this but I suspect he will - or they will say, 'Well, look, we made multiple offers of assistance and they weren't taken up'. Now, I don't know whether that's - well, I'll leave it to him to say but I suspect that's what he'll say and

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that's not - that's undisputed that they did make multiple requests. They just hadn't made a mutual assistance request at that time and I'm sure there'll be some explanation for that.

MR WARREN: Do you agree that the AFP had enough information to state that this was a crime at the time?

HIS HONOUR: Probably not.

MR WARREN: Well, they had the police report.

HIS HONOUR: But they had information that came from another jurisdiction. They hadn't conducted their own criminal investigation. They don't have jurisdiction over there. The problem I've got with that - the difficulty I see is that it's not for the AFP to go into some other country and conduct their own - whether offering assistance or some other way, to run their own criminal investigation. We wouldn't allow another country to come in here and run a criminal investigation.

MR WARREN: No, no.

HIS HONOUR: And - - -

MR WARREN: But if another country sent us a mutual assistance - - -

HIS HONOUR: And Mozambique would not do so either.

MR WARREN: Yeah.

HIS HONOUR: And if another country sent us a mutual assistance request, then we would probably deal with it in a similar way where we'd finish what we were doing, we'd then get to it. So I think you've got to accept that just because where an Australian - an Australian authority goes into another country that the other country is going to - in relation to one of its citizens, the other country is going to say, 'Well, look, please help us, we need your

HD:SB 11/12/23 Court 2 283 DISCUSSION Warren

assistance'. It might happen but there's no guarantee that it will.

MR WARREN: Well - well, I - I was under the assumption that that's what the mutual assistance request was - was in place for.

HIS HONOUR: Well, I think that's not a correct assumption.

MR WARREN: It's not?

HIS HONOUR: No.

MR WARREN: Oh okay.

HIS HONOUR: But I'm sure Mr Yuile had something to say.

MR WARREN: Reading the Act though, I - I look at it that way and it actually does state that countries can help with um - some countries are not advanced in DNA testing - - -

HIS HONOUR: It's a voluntary - - -

MR WARREN: - - - and they consent um items over for to be tested.

HIS HONOUR: But it's only if the agree. Only if they agree. But look, thank you, Mr Warren. That's been helpful. I now need to give Mr Yuile an opportunity to respond to any of those matters he wishes to respond to.

MR WARREN: I'd just like to say though we say only if they agree.

We never gave them the opportunity to agree.

HIS HONOUR: We'll hear from Mr Yuile.

MR WARREN: Thank you, Your Honour.

HIS HONOUR: Thank you, Mr Warren. Mr Yuile, are you ready to address some of these issues?

MR YUILE: Yes, Your Honour.

HIS HONOUR: Thank you.

MR YUILE: Thank you, Your Honour. I think I can be relatively brief in respect of most of them and if there's anything Your Honour wishes to clarify, please let me know.

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Just running through the matters in which - in the order in which Your Honour raised, Mr Warren mentioned some entries in the action sheet which suggest that the AFP knew of the possibility of Ms Warren's body being moved. The only point I make about that is that at each point, the reference is to an understanding of possibilities, for possibilities!! not foreclosed by the investigating authorities in Mozambique and that really leads into the heart of what Your Honour has been grappling with, with Mr Warren about the state of the investigation, what was known to the AFP and what processes that the Mozambique authorities were continuing to conduct and which meant that the AFP was not in a position to understand the full scope of an investigation or to make their own conclusions about the cause of death of Ms Warren!!

So to restate, it was at all points a possibility and our submissions accepted that much that that was something that the Mozambique authorities were leaving open. As a matter of clarify, Mr Warren referred to and in the action sheet as well an official police report from 10 April 2017. I think it's from p13 of the police report which his attached to his affidavit. I simply wish to point out that that action sheet refers to an autopsy report rather than to an official police document!!

That does make a difference!! and it's a matter that was discussed by the AFP in its submissions to you that that was a factor but a document authored by a person, a doctor in Mozambique rather than any official police channel!!

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That remains as the AFP submitted !!- it was not until the more recent visit that Commander Smith made that a formal - or between-authorities statement of homicide was made and now we're in the position of waiting for the Mozambique judge to make a decision about what that investigation will do.

Your Honour, the second point - the third point I should say and the most significant one I think is in respect of the MAR and Your Honour has captured fairly well what I would seek to say about that.

I don't need to repeat what the AFP has said in its submissions but there are really two things. The first is that on many, many occasions, the AFP offered assistance in all possible forms from the very beginning onwards. Mr Scruton made that clear in his oral evidence as well as in his evidence and so did Commander Smith. It was also offered in a more formal way although not through an MAR!! - but there was a formal offer!! or request to make a joint investigation in our submissions, my submissions at paragraph 26 talk about that when it was - sorry, apologies it's not that paragraph, but there was a formal offer made when it was mentioned by Mozambique authorities in 2021 I think and no - nothing ever came of that. So the point is, on many occasions, formally and informally!! of assistance at all times was offered and never was it taken up, except on the very limited occasion through the Interpol channels and the AFP ports complied or assisted as best it could with that request. So there's simply no evidence at all to suggest that if an MAR had been made, it would've resulted in

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anything other than silence as had the previous offers. So it wouldn't have made no difference in my submission!!

The last point, Your Honour, that I wish to say something about is in respect of the photo. The letter from the AGF to which Mr Warren referred to, which is also the letter that counsel assisting referred to, does state fairly plainly that AGF were instructed, that DFAT had provided that letter to the Police Coronial Support Unit in November of 2016!! So whenever else - it may or may not have made its way to forensic pathologists!! or - I can't say anything about that, but certainly the photo itself, the clear version of it was made available to the coroner from the earliest possible stage, I think within a day or two of DFAT receiving it. Beyond that, Mr Warren criticised that AFP was not classifying this event as a crime but was happy to send the photo through to the investigating authorities and a point really to be made is that AFP was trying, from the very beginning of this whole affair, to assist as best it could. Now that included making the offers I've referred to already to assist with whatever means the AFP had available to it through testing and analysis!! and so on. But also, where important material was available, they were keen to make it available to the investigating authorities, and it would be - it's in some ways a strange thing to criticise by Mr Warren. I understand there's a point about consent and I don't have any information about what or wasn't said or asked of the family. So I can't speak to the consent aspect of it. But certainly, it would be curious if Mr Warren was to say that it shouldn't have been sent through, which

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obviously can't be right and Your Honour sort of asked that question. So from the AFP's point of view, it was always part of the AFP's assistance to the investigators in Mozambique to provide them with any that they could and any evidentiary material that was collected by the AFP was shared with the investigators in Mozambique to try and assist them with their investigation.

So it's certainly consistent with the idea that the AFP wasn't sure if this was a homicide or not, to provide a photo of the crime scene which might've assisted investigators to make that finding and it's certainly also, in my submission, consistent with the AFP's role to try and assist, including by providing photos of that kind where it could, including to the coroner and to investigating authorities in Mozambique. And as I say, I'm not sure, and there's no evidence in the brief one way or the other about precisely the circumstances in which happened, that let out this - or that photo was provided. If Your Honour would be assisted by a short timeline of what was provided to who and when and what was said, I'm more than happy to go away and provide that, otherwise I've said all I really think needs to be said about that and I'm content otherwise to rely on the written submissions that we've made on the other points.

HIS HONOUR: Yes, thank you, Mr Yuile. I don't think the timeline will assist. I think there is already information about the sequence of those various steps, so I'm not sure that that will assist me. One of the points that Mr Warren makes is around (indistinct) the broader

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communication with him and the family and perhaps misalignment of expectations about what the role of the AFP is or might have been - - -

MR YUILE: Yes.

HIS HONOUR: - - - and his expectations. Do you have any comment to make about that?

MR YUILE: Your Honour, the only point I'd make about that is that there was not placed into evidence, in any formal way, the records of the extensive interactions between the AFP and the Warrens and the Cafarellas, mostly because it was not seen by - as being relevant to Your Honour's task of determining a cause of death and the circumstances of the death, but it shouldn't be thought that the interactions were anything less than extensive!! My submission would be that from the very beginning of the information coming to light of Ms Warren's death, through to - even up until the coronial inquest itself. The family liaison officers that were assigned to this case were interacting with Mr Warren!! and the Cafarellas very regularly through email, through messages, WhatsApp, through meetings in person.

The subject lines are a simple title of any particular meeting, not going into any substance about that meeting. If a record of those was produced, it would run to many, many pages over the years. There has been constant contact, constant updates!! and for it to be suggested that there has been a lack of contact, or a lack of transparency, in my submission, it is simply not made good on any of the evidence that could be placed before the court, or that the court has!! It's been a very long period, with a very sustained contact with, I might add,

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the same two family liaison officers who, as I understand it, continue to have, at least with Mr and Mrs Cafarella, quite a good rapport. So, this was raised in submissions as an issue. It wasn't the subject of extensive evidence from the AFP, because, as I say, it wasn't seen as relevant to Your Honour's tasks, but the evidence, or the records of that contact are voluminous and there was extensive contact. So, I'd simply wish to say that in my submission, the AFP's interaction with the family has been extensive and commendable!!

HIS HONOUR: Yes, thank you, Mr Yuile. Again, it's not within the scope of this inquest for me to run a review of the interactions that might or might not have occurred between the Cafarella family, Mr Warren and the AFP. I guess what I'd say about that is, if Mr Warren, you have and you clearly have concerns about that, it's not a matter I'm going to be able to assist you with, I'm afraid.

MR WARREN: No, I understand that, Your Honour. I was just more concerned about these circumstances that may occur for other Australian families.

HIS HONOUR: I understand that and there's - - -

MR WARREN: I would like to know that the AFP would support - - -

HIS HONOUR: Sorry, I - - -

MR WARREN: And I'd like to know that the AFP would support other families.

HIS HONOUR: Yes, yes, and you've made that point.

MR WARREN: Yep.

HIS HONOUR: Mr Yuile, is there anything else you wanted to say Warren at this point?

HD:SB 11/12/23 Court 2 290 DISCUSSION Warren

MR YUILE: Your Honour, just to finalise that point, I'm instructed, if the AFP was to put on that evidence of all of the interactions with the families, it would run to thousands of pages!!

HIS HONOUR: Yes.

MR YUILE: I know that's evidence from the Bar table, but that's the instruction that I have, to make it abundantly clear.

HIS HONOUR: Yes.

MR YUILE: That's all I have to say, Your Honour.

HIS HONOUR: Yes, thank you, Mr Yuile. Now, Mr Warren, sorry.

MR WARREN: I'd just like to say that some of that evidence wasn't really supported, I'd say and there was – wasn't a lot of evidence that I obtained from the AFP and a lot of emails. I did get some, but there hasn't been a lot. I do understand that Nicole has had better recall for the AFP

- - - HIS HONOUR: Yes, I'm - - -

MR WARREN: - - - and that she's received a lot more correspondence. There's just one issue - - -

HIS HONOUR: Just on that point, before you leave it. If you are concerned about that, then I think that is a matter you need to take up directly, because it's not in the scope of this inquest.

MR WARREN: Yes. It's not in the scope.

HIS HONOUR: No - yes - no, as long as that's clear. I don't want you to - -

MR WARREN: And this is where I've got to know the system, Your Honour.

HIS HONOUR: Yes.

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MR WARREN: And I understand where you're coming from.

HIS HONOUR: Yes, thank you.

MR WARREN: There was just one issue there that Mr Yuile mentioned, that he said this was the Mozambique document in the action sheet on p13, but actually the – the Mozambique document (AUTOPSY REPORT) the AFP received this on 2 February of 2017 and the page previous to this in no.12 in the action sheet, Your Honour, was the overdose report by the police, official overdose report from the police and then when they found out about there own autopsy report, this is on 10 April 2017, was a police report and it was the revised police report that was sent from Stacey Walker to the AFP.

So, if you look at p12, you'll see that the – a police report was sent on 6 April. Then, four days later, on 10 April, was the revised police report and that's

in the brief, Your Honour, on p492 and 493.

HIS HONOUR: And is that – and I may be confused about this and it may be described as the police report, but is that the autopsy report that is referred to? It's a separate police report.

MR WARREN: No, this is the police report. I'm – I'm – I'm saying to Your Honour that I believe that this is a police report on 10 April.

HIS HONOUR: Yes, all right, thank you.

MR WARREN: Yep.

HIS HONOUR: Yes. Ms Smith, do you want to add anything?

MS SMITH: No, Your Honour, I don't.

HIS HONOUR: No, thank you. Well, look, that concludes the submissions hearing today, and can I thank you, Mr Warren, for the efforts you have gone to, to prepare the material and assist me in coming to – or being able .

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to understand the issues that are particularly pertinent to you and also to have your understanding, or interpretation of the evidence, so that I may consider it in my findings.

MR WARREN: Thank you, Your Honour, for – for giving me this opportunity and I hope that I have assisted you and I have given you some more insight into – into the evidence that's been submitted to the court.

HIS HONOUR: Yes, yes. No, I appreciate that and can I also thank you, Mr Yuile, for your assistance here today. I've now got, as you may appreciate, I was well down the track in the writing of this finding. I am now, based on what other information I've got today, there are some tweaks that I will make to it. My intention was to try and be in a position to deliver this finding on Friday of this week. Now, whether I make Friday or not will depend on my other commitments during the course of the week, but that's what I'll be aiming to do, so that I can deliver a finding on Friday.

MR WARREN: Oh I didn't - I haven't been informed of that and that's good news that we can

- - - HIS HONOUR: That's probably because I don't think it's been generally indicated.

MR WARREN: Yes.

HIS HONOUR: Because I wasn't sure whether the outcome of today was going to be something that I hadn't fully anticipated. There're some things there that I haven't necessarily anticipated but there's - it's certainly within the realms of possibility that I will get to complete it this week and be in a position to deliver the finding on Friday morning.

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MR WARREN: Thank you, Your Honour. I really appreciate it.

HIS HONOUR: Ms Smith will be able to confirm that perhaps not till Thursday, but I just foreshadow that now and if it's not on Friday, then unfortunately it will roll to the new year. Now, I don't want to do that to anybody because I think - - -

MR WARREN: No, we don't want to continue on with - - -

HIS HONOUR: We're seven years on.

MR WARREN: We're seven years on and - - -

HIS HONOUR: And we need to bring this to a conclusion.

MR WARREN: And we need to bring it to a closure.

HIS HONOUR: Yes. So I will do my best in that second last week before Christmas. We've got lots of other things on but I will endeavour to try and conclude the matter this week.

MR WARREN: Thank you, Your Honour, and the family appreciates that, that you are ah bringing your finding to ah - ah to us before the um - before the ah new year.

HIS HONOUR: Yes. So I don't think there's anything else to say other than thank you for your assistance and I understand that it's been a very difficult last seven years for you, Mr Warren, and the Cafarella family and everybody else involved and that's why I think it's important that if we can bring this to a close this year, we should endeavour to do so.

MR WARREN: Well, I hope that I have been of more assistance to you today, Your Honour.

HIS HONOUR: Yes. No, thank you, Mr Warren. We'll adjourn the court.

HD:SB 11/12/23 Court 2 294 DISCUSSION Warren

Below is the reference source for all three graphs in the transcript:-

Case No : COR 2016/5474 In the Coroner’s Court of Victoria IN THE MATTER OF THE CORONIAL INQUEST INTO THE DEATH OF ELLY ROSE WARREN Documents Referred to by Mr Warren.

Figure 1 Source: http://onlinelibrary.wiley.com/doi/abs/10.1111/j.1556-4029.2009.01100.x

Figure 2 Source: https://www.dentaleconomics.com/science-tech/diagnostic-imaging-andcbct/art icle/16387498/cone-beam-technology-a-brief-technical-overview

Figure 3 Source: https://www.sciencedirect.com/topics/medicine-and-dentistry/hounsfield-scale.