. My report on the coroner’s findings
Note; This report is still work in progress 98 completed of 191.
My report on the coroner’s findings is in systematic order. Theses are the relevant points of reference from the Coroner’s findings in more detail and clarity insuring all the relevant facts are mentioned which were overlooked or not explained fully in the coroners findings.
This report will mention the corresponding number refenced in the actual coroners findings which has been copied in and followed by my exploration 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 bases 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
of proof should operate in civil proceedings.
The case in question was that Mr. Briginshaw accused Mrs. Briginshaw of adultery because she had been seen attending dances with another individual, and had been driven home and kissed by this same individual. The co-respondent to Mrs. Briginshaw was the individual she had attended the dance with, who denied that adultery had occurred.
The main point being 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 of beyond reasonable doubt, and at that standard has found insufficient evidence to support 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 and clarty systematically :-
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 “second hand still” after her examination of Elly’s body on the 16th November 2016 with her evidence given at the inquest in August 2023.
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 sort by the family and he totally agrees with Dr Klepp’s 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 the 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 physical 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 of alcohol as there was 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 surly the
weight of evidence is beyond reasonable doubt Elly was
murdered!!!!
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
in 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. Providing a good reason for our Australian authorities and Coroner with these solid facts to act firmly which added weight to highly susphious 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 form the start. The family would have also been informed of some vital circumstances which we did not know about as the family and coroner did not know the clear photo until October 2018! Transcript Pgs. 267-277
The AFP were given this clear photo in November 2016, “No report” to the coroner on this critical crime scene photograph from the AFP who are “responsible” for this crime evidence as the governing police body for overseas!!!!!!! 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 told 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.
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 along with the clear crime scene photo 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 attempt 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!!! Mr Cain has touched on some of the factual evidence spreading it over pages of findings making it confusing and therefore difficulty to follow and piece together, not even mentioning critical pieces of evidence in the conclusion to his main findings just saying its all mentioned above basically.
Mr Cains 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 of 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”
However the evidence is all over the place and the critical evidence is not clearly clarified or given weight to 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 he clearly states in my oral submissions below;- . T 274-275
“Thats 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 theses 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 revised police report. T 284,290-291. I am sure you will find all of my oral submissions very interesting indeed and its 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 wrong doing. 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 discretions 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 insuring these unjust circumstance by all authorities concerned do not accrue to other Australian families!!
After reading all the factual evidence above do you think its 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 and the exposure of the Mozambique police cover up at the crime scene!!!
Mr re-enactment of the clear crime scene photo taken by the fisherman at 5am is attached below. Note, for obvious reasons I can’t show the actual clear photograph of Elly or the South African autopsy photographs clearly showing the the marks and bruising around her 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 except 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 gov to gov 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 obviously our Australian authorities/government does 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 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 try’s 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!!! It 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 send the MAR at this time. The AFP have always maintained and stated their is a active ongoing investigation by the Mozambique authorities!! However the family disagreed at this point with these two police reports as their first report was on the 6th April 2017 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 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 of 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 of sent the MAR in 2016/17 there was every chance they would have excepted our support at this time. Transcript pgs. 263 Line No 31 and Page 264.
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 however everyone had realised by this time of the Mozambique cover-up!!! Of course they would not agree later and the AFP did really not want get involved with a corrupt police force this is why they only sent a personnel letter later on 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!!!
This section above on the MAR is really “very important” and
could have made a difference in the very early stages of our
daughters 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 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 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 here that the coroner Mr Cain did not Initially want to call a very important relevant witness in Dr O’Donnell, radiogoloist who submitted his report to the court in No 39 of Mr Cain’s findings.
What was “very disappointing” was Mr Cains 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. However the 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!! which Mr Cain was obviously very concerned about having to maintain credibility as he states in a hearing on February 2023 that the VIFM is the states top forensic department!!!
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 an 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 thought a “vital” witness given the circumstances as he was the only one who could give the coroner a “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 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 the packed sand compromising her airways chockablock with her body in the position it was found and at that location on this firm surface. This concurred with Dr Klepp’s evidence given 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 and was rejected by Mr Cain. He had also submitted a report/Statement to the court. Mr Bezzina also had some updated facts on the case with his experience from a homicide detective perspective. These witness were all mentioned at a hearing on 20th February 2023 with Mr Cain as my barrister informed Mr Cain and told him 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. Mr Bracken knew who Dr Collins was and how important he was and asked for 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 which 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 matter.
I could not understand and neither could my legal team at all why Mr Cain did not want “Dr O’Donnell initially as a witness” (Letter from my Lawyer attached below).
I could not also understand why Mr Cain did not want all the vital relevant witness at the inquest. Surly with Elly’s case surrounding so much “mystery with the gaps in evidence” as mentioned by Mr Cain at the hearing in February 2023, This then surly required to cover all the bases and angles here with the matter by having all of the relevant witnesses called.
The only thing I can think of is that 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 by “his” VIFM doctor and AFP!!!! I definitely got these vibes from my legal team and they were aware but they did not directly inform me of these circumstances. My Barrister said, when our request was rejected to cross examine the doctors separately 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 strength of evidence proves 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 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 summitted 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 full 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 she was murdered”. I reiterate Dr Klepp also in evidence at the inquest and Dr Collings before the inquest also state it was impossible for Elly to pack her airways in such manner with the body laying flat on this firm surface with her head on top of the sand 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 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 states it was always possible for a joint operation with the AFP but they had not received any such request.
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 in 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 Cains findings here about his VIFM having the clear photo and not reporting on it to the coroner exposing the VIFM. 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 Cains findings with any real weight or Clarity as it’s difficult to ascertain the strength of evidence which is lost in the volume of pages in his findings. It’s not even mentioned in his conclusion with any real conviction, weight or clarity.
No 52 coroners 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 and the first point at No 1 on their conclusion it clearly states it was a “Violent death” This is vital evidence not mentioned here at No 52 in the coroner’s findings when describing the Mozambique autopsy . The “ABUNDANCE” of sand is very important factual piece of evidence as it concurs with Dr Klepp’s 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. This would add weight to the vital evidence of the “packed chockablock sand” here in Mr Cain’s findings which is also clearly the cause of death in 2016!!!!! Some of this evidence is mentioned in other areas of his findings spread over the pages!!!
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
Dr Lynch notes a small residue of sand in the trachea and bronchi in his report. 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. He supports this again in his latest updated Supplementary report dated the 5th June 2023 to Mr Cain where he clearly states;-
“NO sand was identified on Ms Warrens body”
However in evidence given at the inquest By Dr O’Donnell the radiologist he 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 Bone density in the trachea 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 full 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.
No 63 corner’s findings. 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!! 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 full with sand!!! This is not even mentioned in Dr Lynch’s Supplementary report or autopsy report!!! The sand has filled both lungs 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 in August 2023”!! The one thing Dr Collings did say about the radiology report/imagery was, “The radiology imagine proves the sand is there in the areas shown”.
No 67 corner’s findings. 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
Dr Klepp in evidence at the inquest states she removed the tampon and placed it in a plastic bag inside the body with the organs for repatriation to Melbourne. In 2019 when I asked the court what has happened to my daughters tampon the court could not give me an answer!! The coroner’s assistant at the time had then rung Dr Klepp and she also stated at this time she had placed it inside the body for repatriation to Melbourne in 2019. However Dr Lynch in his first Supplementary report dated the 19th September 2019 states:-
given The coroner’s assistents conversation with Dr Klepp it is possible “that the tampon was overlooked by me, can’t be excluded”.
This is not in Mr Cains findings.
No 69 Corner’s findings. 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:
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 below. which is:-
“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 a 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 her top is destroyed and that she could not possible do this amount of damage to her own top by herself!!!
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 resent then it could have been sustained during an assault”.
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.
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 full with sand to the lower levels at the time of the Melbourne autopsy.
This was solid factual 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 he 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. Dr Collins states he can't really moment on the radiology report as it Dr O’Donnell’s report but what he could say is the report dose indicate the sand is definitely present.
Dr Lynch was also asked that is it possible with Ms Warrens body position laying flat with her head on top of a firm sandy surface able to inhale sufficient sand to block her trachea and both lung trees with sand. Dr Lynch’s answer 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 need then to say here again 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 is 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 Klepp’s findings that cause of death is asperation of sand giving no weight to how packed chockablock it was in Mr Cains findings or conclusions because Dr Lynch had found no sand as stated in this report.
I reiterate “No sand was identified on Ms Warren’s body” Dr Lynch states.
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: dose 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 “violet death” Mr Cain has also not stated this at all in his findings!!!! However it is fact as it is all mentioned in the Mozambique autopsy report!!!
70. In the June 2023 report, Dr Lynch made the following observations:
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 Cains findings from Dr Lynch’s Supplementary report!!!
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
What Dr Lynch has stated in this Supplementary report about this clear photo is fully explained with clarity at No 69 above. This is not explained here in Mr Cains findings and I consider this to be Vital evidence as it not only proves that this damage to the top in this manner is impossible for Elly to do no her own.
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.
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.
What’s also very interesting is 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!!
72. Dr Lynch also made a number of additional comments, including but not limited to: 30
• a tampon was not identified in situ or otherwise at the examination of Elly in Melbourne on 22 November 2016, noting that a tampon was noted as in situ during the autopsy conducted by Dr Klepp in South Africa;
73. Dr Lynch did not alter his initial opinion as to the cause of death.
This above was in his supplementary report sent to Mr Cain before the inquest.
However the coroner had changed Dr Lynch finding as 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 was the cause of death in 2016!!!!
Mr Cain had no choice with the compelling evidence given at the inquest by Dr Klepp to change Dr Lynch’s undetermined cause of death to sand blocking the airways by aspirating a large amount of sand.
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.52
In Mr Cains findings from No 88 to 103 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 could we have each doctor give evidence separately but Mr Cain refused our request. Mr Cain has not reported on each doctors 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 these circumstances!!!!
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”. “The gold minds in South Africa collapse 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 ask 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 Klepp’s reply was:- “It is an “absolutely accurate description” her mouth was absolutely “chockablock” as was her trachea”.
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 breath. I am not as strongly in for a compromised airways from positional point of view but her airways was compromised by mechanical obstruction by sand.
However Elly 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 on “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 Cains 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 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 after Elly’s death by a third party!!!
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.5
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 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!!!
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 Cains 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 the circumstances of Elly’s death!!! This concurs with Dr Klepp’s evidence that the oral cavity (Mouth) was 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 grater than or equal to bone”.
There was another density reading in the trachea of 947HU however this may of been comprised with the washing by Dr Klepp as its 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!!
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 is 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 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’.61
The “Abundant” sand found the the Mozambique autopsy is mentioned here Briefly but not in Mr Cains conclusion.
He states Dr Klepp’s cause of death but has given on 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 determined 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 had contributed to the death!
I am up to this point No 91/92 with my new report 22/07/2025.
still looking at some previous points to possibly add to just below.
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 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!!
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!!
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:-
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!!
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!
This is not good enough by a qualified pathologist at the VIFM!!
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. “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.
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 with all autopsy examinations!!!
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.
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 what ever reason!! I am sure this is just not logical or practical to say this given these circumstances as the factual evidence proves its 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.!!! Surly these critical factors all together are highly susphious circumstances adding weight that it’s beyond reasonable doubt Elly was murdered!!
I also reiterate Dr Klepp states it up to the judge to determined the manner of death taking into account all the circumstances associated with the death.
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.
It also clear states here that it is homicide in the conclusion.
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, Elly’s face had bruising and abrasions very prominent around her mouth and lips indicating its 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.
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.
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.
This is a critical time as it was the last time her friends saw Elly alive.
Therefore its 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 Cains 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 Cains 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!!!!
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 damaged 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.