Introduction
Deaths of Australians Overseas
Australian Coronial Jurisdiction
The Case of Mr Ben Maresh
Background
Police Investigation in Kupang
Action taken by the Embassy, Jakarta and
the Department of Foreign Affairs and Trade
The Victorian Coronial Inquiry
The Australian Federal Police
Matters raised by the Maresh family in
relation to the death of Mr Ben Maresh
Investigations into the death of Ben Maresh
Role of Australian Government
Agency co-ordination
Assistance with the return of deceased
Missing Persons
The Case of Mr David Lindner
Search and Rescue
8.1 In this chapter, the Committee considers the issues of
(i) deaths of Australians overseas and of (ii) Australians missing overseas.
The terms of reference of the Committee's inquiry required it to look
at the issues and problems in dealing with difficult and complex cases
including the deaths of Australians in criminal and possibly criminal
circumstances, such as the cases of Mr David Wilson, Ms Kellie Wilkinson
and Mr Ben Maresh. The cases of Mr Wilson and Ms Wilkinson are discussed
in Chapter 7. This chapter deals with matters arising from the death of
Mr Ben Maresh and other individuals who have died overseas.
8.2 DFAT submitted that the fundamental objectives of the consular function
in relation to deaths abroad are:
- to provide guidance and support to the families or others involved;
- to ensure the proper and respectful disposal of the remains.
8.3 During 1994-95, an estimated 2,000 Australians died overseas. DFAT
provided assistance in 643 cases. Most of these cases were deaths in non-exceptional
circumstances with DFAT providing assistance to the next of kin to either
return the remains to Australia or to arrange for their cremation or burial
overseas.
8.4 DFAT submitted that when the death of an Australian overseas comes
to the notice of a post, it contacts DFAT in Canberra. The Department
then seeks to establish the next of kin. This may take some time as the
provisions of the Privacy Act sometimes prevents other government agencies
from disclosing information that would enable the quick identification
of next of kin. Once this has been established, the Consular Operations
Section will ask State police to visit the next of kin and advise them
of the death. The police will also be asked to pass on the telephone number
of the Consular Operations Section and invite the next of kin to make
contact with the Section.
8.5 The Consular Operations Section will not only advise families on
the return of the remains, but will also provide assistance with the return
of personal possessions, obtain and forward death certificates and police
autopsy reports.
8.6 DFAT stated that once a body had been returned to Australia or disposed
of in accordance with the wishes of the family and relevant documentation
provided to the next of kin, the direct consular role ceased. However,
there remained a role for the Government to try to ensure that the circumstances
of the death are investigated and/or any offenders brought to trial.[1]
8.7 DFAT outlined the Government's policy concerning overseas investigations
and action that may be taken by the Australian Government. Although DFAT
stated that it tried to adopt a 'fair and reasonable' approach in cases
involving the death of an Australian overseas, the Government is often
constrained by international practice as to the action it can take.
8.8 Mr Robert Hamilton, Assistant Secretary, Consular Branch, stated
that while a murder case remains unresolved, consular officers keep in
touch with local authorities, either formally or informally, depending
on the circumstances of the case, about the status of the investigation.
Further, 'where the case is of a particularly high profile, we even elevate
that to ambassadorial level and formal representations are made about
our concern that the investigation is slow moving and we urge them to
try to resolve the matter as quickly as possible and put additional resources
to it if appropriate.'[2]
8.9 If the Government believed that the circumstances of a death required
further investigation then:
There would be a number of channels available for pressing for such
an investigation. One would be the diplomatic channel where we could
ask. We could start at a junior level and work our way right up to the
Prime Minister if we wished to do that, with their respective counterparts
in the other country asking that a further investigation, or an investigation
if none had been conducted, be conducted, or that certain aspects of
any investigation be looked at again, whatever. We could clearly not
force that to be done, we could merely ask repeatedly if we wished to
do so. I would expect that through police channels, certain approaches
could also be made. The nature of those approaches would depend very
much on the relationship, I would dare to suggest, between the AFP and
the relevant foreign police force and clearly that would vary from country
to country and region to region.[3]
8.10 DFAT gave an example of a case in one of the southern African states
where the Department was trying to persuade the government of that country
to continue an investigation. However, on some occasions the Department's
efforts were not welcomed by the other government, which did not consider
it appropriate for the Australian Government to continue to push for further
investigations.[4] Mr Thompson,
Director, Consular Operations, also cited the case of an Australian national
killed while incarcerated in a British gaol. Despite requests by DFAT,
the British Government has refused to have an open hearing on the matter.[5]
8.11 In deciding which cases to pursue with a foreign government, Mr
Hamilton stated that there were no specific criteria and that the cases
to be pursued were largely determined within the Department, having regard
to natural justice principles and what the Department thought was 'fair
and reasonable'.[6] Mr Hamilton
went on to say that what the Department might consider to be fair and
reasonable may not be viewed as so by another person and that 'there is
always going to be a tension between what somebody would like and what
we are prepared to do'.[7] However,
he did say that:
I think ... we err on the side of generosity in all of this. Again,
I take your point that not everybody who requests us to do something
would necessarily think that we did err in that way. But I think that
our definition of fair and reasonable is a pretty generous one and there
are many cases where we have taken issues up without them being in the
public domain at all. It has got really very little to do with public
pressure. When a case is in the public domain, clearly we have to respond
in perhaps a slightly different way. We do things then perhaps that
we might not have done otherwise. But the general principles remain
pretty much the same: there are certain things that we regard as fair
and reasonable and will do and there are areas where we simply do not
see there being a consular role. That is the result of a body of international
practice and domestic consular practice.
8.12 The Maresh family recommended that, following the confirmation of
suspicious circumstances surrounding the death of an Australian citizen
in a foreign country, DFAT be required to initiate further investigations
and formally request that foreign governments reopen investigations. The
proposition that the Australian Government conduct its own investigations
in the light of perceived inadequacy in investigations carried out in
foreign jurisdictions or because a suspicious death had occurred was also
raised in other submissions.
8.13 Two suggestions were put forward on the conduct of such an investigation:
that Australian police agencies conduct investigations overseas or that
DFAT employ a legal representative to undertake the investigation. With
regard to the use of Australian police agencies in overseas investigations,
the Australian Federal Police (AFP) stated:
It should be stressed that the AFP has neither the authority nor the
jurisdiction to conduct investigations outside of Australia. Apart from
providing technical advice, the extent of AFP assistance is normally
limited to liaison with the relevant host country law enforcement agency.
Generally, this is restricted to attempting to influence the agency
to conduct an investigation in a manner which meets Australia's interests.[8]
8.14 DFAT drew attention to the role played by AFP liaison officers.
By using official or personal relationships established with local authorities,
liaison officers have often managed to keep an investigation going or
to elevate the importance of one. Mr Hamilton referred to the role of
the AFP officer in Nicosia in the case of the disappearance of Mr David
Lindner in Iran:
... that officer from Nicosia did have quite a substantial liaison
role, I think they would probably call it, in Iran. I am sure that his
presence and his liaison encouraged Iranians in their endeavours, and
kept that case going when otherwise it might well have ceased to be
in the in tray. But that was not a formal investigation on his part,
it was more that his relationship, which was a formal relationship,
gave him the opportunity to continue to keep the local authorities engaged
with the case.[9]
8.15 The Maresh family suggested a range of avenues which should be examined
by the Australian Government, in particular,
The Government should initiate negotiations for an international agreement
securing mechanisms for a reciprocal, cooperative interaction between
law enforcement bodies and government agencies ... in circumstances
where a death occurs on foreign soil.[10]
8.16 DFAT advised that co-operative arrangements do exist between police
forces through the auspices of Interpol.[11]
Sometimes, foreign experts are invited to assist a particularly difficult
police inquiry in another country. However, just as Australia does not
invite other countries to conduct inquiries on Australian territory nor
does any other country invite interference in their judicial processes.
The Committee understands that there is no possibility of an international
agreement being reached in which police authorities of one country are
allowed to conduct investigations in another country.
8.17 In all the States and Territories, with the possible exception of
Queensland, the Coroner's jurisdiction extends to the investigation of
deaths overseas. The Coroners have the power to investigate deaths in
certain circumstances including the death of a person ordinarily resident
in or connected with the State or, in the case of South Australia, if
a body is returned to the State. Most State Coroners, however, will not
investigate a death if a thorough investigation has been carried out in
the country in which the person died.
8.18 Most deaths of Australians that occur overseas are investigated
by local authorities, including the carrying out of autopsies and post
mortems. In some countries there is no equivalent to our coronial inquest
and sometimes autopsies are not carried out or are carried out in only
a rudimentary fashion. In one case before the Committee, that of Mr Peter
Dewes who died in Japan in 1993, the prefecture where the body was found
did not require an autopsy to be conducted unless the person had died
as a result of a crime. There is also no Japanese equivalent of a coronial
inquest and DFAT stated that examination by a police doctor and a police
investigation report is the accepted standard. Mr Dewes' mother believes
that her son met his death by foul play and the lack of an autopsy has
left her with many unanswered questions.
8.19 In a few cases, the bodies are returned to Australia for an autopsy
by the State Coroner. Although DFAT does not advise the next of kin about
coronial processes as a matter of course, they do refer the next of kin
to his or her legal adviser should the family wish to pursue legal matters.
However, where a death occurs in suspicious circumstances and DFAT is
not confident that local authorities have fully investigated the circumstances
surrounding the death, DFAT should draw the attention of the next of kin
to a possible role for the State Coroner or suggest that the next of kin
seek legal advice about involving State authorities in the matter.
8.20 Mr Sam Maresh raised the need for autopsies to be carried out where
a suspicious death has occurred. He made the following recommendations
in relation to autopsies:
- that DFAT be required by law to offer an autopsy to be performed on
Australians who have died overseas and whose remains have been returned
to Australia;
- that an autopsy be carried out when circumstances of the death are
unknown;
- that DFAT maintain a qualified forensic pathologist who may be called
upon to gather evidence in circumstances of suspicious death or where
the family requests such services;
- that DFAT negotiate agreements with other countries to allow for
the free access of pathologists to the body of deceased Australians.[12]
8.21 The coronial system is within the jurisdiction of State and Territory
Governments and not the Commonwealth Government. The decision to conduct
an autopsy is made by State and not Commonwealth authorities. DFAT, as
a Commonwealth department, would therefore not be in a position to offer
an autopsy to be performed on an Australian who had died overseas. Similarly,
State/Territory Governments employ or contract forensic pathologists to
assist in their law enforcement processes. There is no role for such a
person within DFAT.
8.22 The Committee notes that the State coronial system not only investigates
deaths but is also structured to deal with grieving families. Coronial
services either offer grief counselling or are associated with grief counsellors
(Queensland only provides counselling where a post mortem has been carried
out). The need to address the special requirements of grieving families
was raised by DFAT. The next of kin who gave evidence to the Committee
also pointed to the need for counselling services where a death in unusual
circumstances had occurred. (This is discussed further in Chapter 5.)
The Committee believes that there are benefits to be gained by referring
next of kin, where appropriate, to coronial services for advice and counselling.
8.23 On 8 April, 1994, Benjamin Robert Maresh was burned to death in
a fire in the Morning Sun Hotel in Kupang, West Timor, Indonesia. Ben
was staying with his father, Robert Maresh, who was resident in Kupang
on business. On 4 April, Ben had moved into the Morning Sun Hotel and
on 6 April he had rung his mother in order to make arrangements to return
to Australia.
8.24 The evidence of witnesses suggests that Ben spent the evening of
7 April drinking in the bar, talking with friends and playing his guitar.[13]
At around 12.30 am, he ordered food which was delivered to him in his
room by a staff member. At approximately 1.10 am, the hotel manager, Mrs
Bowes, was woken by hotel staff who had seen smoke emerging from Ben's
room. Mrs Bowes stated that on the way to Ben's room she passed three
Indonesian defence personnel who were not resident in the hotel.[14]
She found Ben's door locked and on not receiving any reply to her calls
she obtained a second key and opened the door. The fire and smoke prevented
entry into the room and there was no answer from Benjamin. The fire brigade
was called and, subsequently, Ben's body was found in his room. He was
the only victim of the fire.
8.25 The interpretation of events is influenced largely by different
perceptions of events which surround the fire, in particular the fight
which Ben was involved in on the 30 March 1994 and suspicions regarding
the financial state of the hotel and its owners.
8.26 Ben's father, Mr Robert Maresh, told the Committee that he was a
Darwin architect who designed prefabricated houses suitable for Indonesian
conditions. In 1992, he negotiated an agreement with the provincial government
of Nusa Tenggara Timur (NTT - West Timor). Three prototypes were constructed
and sent by barge from Darwin to Kupang. While they were in transit, the
NTT Government withdrew from the arrangement.
8.27 Mr Maresh said that in 1993, he met Mr Danny Rafiqi, a naturalised
Australian, who claimed to own beach front land at Nonsui, outside Kupang.
He inspected the land and was introduced to a local Chinese businessman
who was to be the financier for a new project, a small tourist resort.
In late 1993, an agreement was signed and he relocated to Kupang. In February
1994, following the completion of his schooling in Melbourne, Ben Maresh
and his brother Sam joined him in Kupang. Sam shortly afterwards returned
to Australia. When he discovered that Mr Rafiqi had no title to the land
intended for the resort, the project had to be abandoned. At this time
he and Ben were living in a bungalow on the intended building site at
Nonsui Beach.
8.28 Mr Maresh told the Committee that in Kupang, they met Mrs Ruth Bowes,
an Australian citizen and part owner and manager of the Morning Sun Hotel.
He said Mrs Bowes was in financial difficulties and asked for a loan of
$50,000. He also stated that Mrs Bowes suggested to him that Ben work
for her, approaching incoming tourists at the airport for the Morning
Sun Hotel. He rejected both suggestions.
8.29 Mr Maresh said that on 30 March 1994, Ben and a local person had
a disagreement at Kupang Airport, where Ben had met four friends arriving
from Darwin. As he was returning to Kupang by motor cycle, he was struck
with a bamboo pole by the pillion passenger on a passing motor cycle.
Ben followed the motor cycle to the Eden Hotel where he was assaulted
by a number of local youths, apparently employed by the Eden Hotel, which
operated in competition with the Morning Sun Hotel. Mr Maresh stated that
Ben was badly bruised and his arms scratched in the attack but his head
was protected from injury by his helmet.
8.30 Mr Maresh said that Ben was initially persuaded by Mrs Bowes and
a British national staying at the Morning Sun Hotel not to report the
assault to the local police as it might prompt reprisals. However, Ben
reported the incident. Mr Robert Maresh alleged that the Kupang police
were not interested in pursuing the attackers, so he approached the Kodim,
Army Commandant in Kupang, who intervened on behalf of the Maresh family.[15]
Two days after the attack they were told that three people had been arrested.
According to Mr Maresh, Ben was to identify the rest of the assailants
the following week.
8.31 Following the assault, Ben became increasingly anxious about staying
at Nonsui, which had no electricity or telephone. On Monday, 4 April,
he had a disagreement with his father and moved to the Morning Sun Hotel.
Two days later he telephoned his mother, Mrs Denise Maresh, in Melbourne,
telling her of the assault and saying that he wanted to return to Melbourne.
Later the same day he rang again, 'very disturbed, frightened and anxious
to leave Kupang'.[16] Mrs Maresh
told Ben that he had been booked on a flight on Saturday, 9 April. The
fire occurred in the early hours of 8 April.
8.32 The day after Ben's death, Mr Robert Maresh and a friend, Veronica
Cooper, transported Ben's remains to Melbourne, via Darwin. At this stage,
no assistance had been sought from the Australian Embassy in Jakarta,
although the Embassy had learnt of the fire and the death of an Australian
citizen through a press report and its own subsequent inquiries.
8.33 The Kupang Police report is in two parts. The first part gives details
of the police investigation. The second part gives a chronology of events
and two diagrams of the hotel layout. The Maresh family point out that
neither report includes reference to the fight in which Ben was involved
prior to the fire.[17]
8.34 The police interviewed hotel staff and the report states that during
the evening Ben had been drinking and at approximately 1.30 am the fire
was reported to the Hotel Manager, ( a different time is given by Mrs
Bowes, see paragraph 8.24). The Kupang police report made the following
findings:
- the fire is assumed to be caused by a burning cigarette/burning gas
lighter;
- it is assumed that the fire burnt the mattress which was made of rubber
and then spread to the ceiling; and
- the victim was in a heavily drunken state.
The report stated that the Kupang police requested an autopsy. It was
subsequently discovered that this was not carried out due, it was said,
to the state of the body.
8.35 On 8 April, the Australian Embassy in Jakarta advised DFAT that
they had been unofficially informed of a fire in Kupang which had destroyed
a hotel.[18] On the day of Ben's
death the Embassy staff contacted:
- the neighbour adjacent to the hotel, as official sources were unavailable
immediately, the neighbour confirmed the fire;
- the Umum hospital which confirmed that the body of an Australian man
who had died in the fire at the hotel was in the hospital; and
- the Kupang police who confirmed the death and that two more Australians
were also living in the hotel at the time of the fire.[19]
8.36 On the day of Ben's death, Sam Maresh contacted DFAT in Canberra
and spoke to consular officer, Mr Paul Ryan. He stated that he was told
'as the death occurred in a foreign country Foreign Affairs could be of
no assistance'. Sam also stated that Mr Ryan informed him that the Department
could assist in bringing Ben's body back to Australia and that Mr Ryan
then rang Sam later to say that 'the body can't come back to Australia,
that it would be far easier to be taken to Jakarta for cremation and that
if it arrives in Australia it would be placed in quarantine for a number
of months'.[20]
8.37 On the same day DFAT in Canberra advised the Embassy in Jakarta
that Mr Maresh, on advice from Mrs Maresh and Sam Maresh, would be arranging
cremation in Jakarta. The Embassy was advised that Mr Maresh would be
in touch and contact details were provided for Mr Maresh.[21]
8.38 On 9 April, the Embassy contacted a person at Mr Maresh's residence
who advised them that Mr Maresh had taken his son's body back to Australia
that same day. Confirmation of this was then obtained from the hospital
and from Mrs Maresh. The two Australians who had lost their passports
in the fire were offered assistance.[22]
8.39 An autopsy was carried out by the Victorian Institute of Forensic
Pathology on 13 April, 1994.
8.40 On 19 April, Mrs Maresh contacted Mr David Rutter, the Assistant
Secretary, Consular and Passports Branch, DFAT, who explained the consular
role to her.[23] Mrs Maresh stated
that she was then rung by Mr Paul Ryan who said that 'As the body was
taken by the family from foreign soil, the Department of Foreign Affairs
and Trade cannot be involved'.[24]
Mrs Maresh also stated that she was given the same information from Senator
Evans's office. DFAT advised her to contact the AFP in Melbourne.[25]
Mrs Maresh states that when she contacted the AFP she was referred back
to DFAT.[26]
8.41 On 19 April, DFAT informed the consular offices in Bali and Jakarta
of the Sunday Territorian article which reported that Ben may have
been murdered and that Mrs Bowes was under police guard.[27]
No source was given for the news report.
8.42 An AFP liaison officer in Jakarta travelled to Kupang on 20 April.
He 'reported that his own observations did not give any grounds for concern
about the conduct of the Kupang investigation'.[28]
The visit by the AFP was later described as 'informal investigative work'.[29]
8.43 Mrs Maresh contacted Senator Evans's office for information on 27
April. As a result, the Kupang police were again contacted to find out
what stage their inquiry had reached.
8.44 On 29 April, Embassy staff contacted the Chief Officer, Kupang Police,
to obtain a copy of the police report. They were informed that the report
had been sent to Police Regional Headquarters in Denpasar, Bali. The Chief
Officer also stated that in his view it was unlikely that an autopsy was
carried out due to the condition of the body. Embassy staff then contacted
the Director of Police in Denpasar and were told he had not received the
report but would follow up the matter. On 13 May, the Embassy in Jakarta
informed DFAT that it was attempting to obtain the autopsy report requested
by the Kupang police. The Embassy indicated that it had been told unofficially
that the autopsy had not been carried out.
8.45 On the 25 May, Mr Paul Ryan made available to Mrs Maresh the following
papers:[30]
- originals and translations of the Kupang police report;
- a chronology of actions taken by the Australian Embassy in Jakarta;
and
- copies of various documents showing the action taken by the Embassy.
8.46 Mr Andrew Peacock, MP; the Minister for Foreign Affairs, Senator
Evans; and the AFP were all given documents by Mrs Maresh relating to
the fight Ben was involved in prior to his death and copies of papers
which accompanied Ben's body.
8.47 One of the papers was from the Quarantine and Inspection Branch,
Northern Territory, which made the statement, 'Person Assaulted and Building
burnt down around him'. The officer has since stated that 'the unfortunate
comment' was intended to qualify quarantine status.[31]
8.48 On 22 June, DFAT requested the Embassy to pass on the autopsy results
to the Indonesian Police Authorities requesting that the contents be given
close consideration in any further investigation.[32]
8.49 Mr Maresh contacted the National Crime Authority (NCA) on 11 August
and an internal minute was drawn up from that meeting which recommended
that the issue be taken up with the Indonesian authorities.[33]
8.50 On 1 September, the Embassy was informed by Indonesian Police that
their investigation had concluded and that there were no malicious circumstances
surrounding Ben Maresh's death. The Indonesian police stated that emphasis
had been placed on the Victorian forensic report and that appropriate
resources had been allocated to the case.[34]
On 28 September the NCA advised DFAT that there was no role for them and
that Mrs Maresh had been referred to the AFP.
8.51 On 27 September the Embassy was advised that the Indonesian Police
were prepared to reopen the investigations should any new evidence come
to hand.[35]
8.52 In late 1994 and 1995, Mr Maresh wrote to the Prime Minister, the
Minister for Foreign Affairs, the Indonesian Foreign Minister, the Indonesian
Ambassador, the Indonesian consuls and the Governor, Kupang. Mrs Maresh
wrote to Senators and House of Representative Members of the Australian
Parliament.[36] Early in 1995,
Mr Maresh had a Kupang solicitor deliver a letter to the Kupang police
with new evidence collected on his own visits to Kupang.[37]
8.53 Mrs Maresh also made a Freedom of Information (FOI) request to DFAT
on 3 February 1995 regarding 'all documents/papers/comments and any other
data that was used by the Minister for Foreign Affairs upon which he based
his decision to not hold any official investigation'.[38]
Mrs Maresh was advised by DFAT that no such decision was taken by the
Minister. Mrs Maresh was further advised that she could request information
under the provisions of the Freedom of Information Act and was asked to
be specific with respect to the information she required.[39]
On 28 April 1995, Mrs Maresh met the Executive Officer, Consular Operations
and examined the consular file on Ben's death. Mrs Maresh was 'provided
with a copy of most of the files requested'.[40]
Mrs Maresh then withdrew her FOI request.
8.54 When Mr Maresh and a friend arrived in Darwin with Ben's body on
9 April 1994, they were interviewed by the AFP. They then proceeded to
Melbourne to arrange for a cremation. Following contact with the State
Coroner's Office, the family was informed on 11 April that an autopsy
was required.
8.55 An autopsy was conducted on 13 April 1994 by Dr Shelley Robertson.
The report found 'no signs of injury other than that attributable to fire
apparent'.[41] The Toxicological
Report conducted at the same time states that a blood alcohol level of
0.10g was a contributing factor. Dr Robertson concluded that Benjamin
Maresh's death occurred as a result of fire and a contributing factor
may have been alcohol. The autopsy showed the presence of certain chemicals
in the blood indicating that Ben had not died prior to the fire.[42]
An interview with the family was conducted at the Coroner's Court on 14
April by Sergeant David Dimsey.
8.56 A hearing was conducted by the Coroner in Melbourne on 15 May 1995.
The Maresh family requested that the Coroner make recommendations in his
findings that the Australian Government request the Indonesian authorities
to reopen the investigations. The Coroner handed down an open finding
and made no recommendations concerning a reinvestigation. The Coroner
found that:
Although there is evidence to suggest the fire cause (sic) as being
as a result of smoking in bed as I am unable to totally exclude other
possible factors or circumstances surrounding the fire I am not able
to finally determine cause and contribution.[43]
8.57 At the Coronial hearing Dr Thatcher, Assistant Director (Chemistry),
State Forensic Science Laboratories gave evidence which pointed out inconsistencies
with a finding that the fire was caused by the victim smoking a cigarette.
8.58 On 20 April 1994, Mrs Maresh contacted the AFP regarding newspaper
allegations that her son had been murdered and requested details of any
investigations.[44] On 27 April,
AFP advised Mrs Maresh that they could not conduct an inquiry on foreign
soil and she was directed to contact DFAT, a step which she had already
taken.[45] On 27 April, the AFP
in Jakarta advised Mrs Maresh that the Kupang report was inconclusive
and had found nothing suspicious. Mrs Maresh was sent the Kupang police
report by DFAT on 25 May 1994.
8.59 On 2 June 1995, the Maresh family met the Minister for Foreign Affairs
in Melbourne. Mrs Maresh alleged that the Minister declined to contact
the Indonesian Foreign Minister to ask him to support the reopening of
the investigation in Kupang. It was stated that the Minister had not seen
the NCA minute recommending a reinvestigation until that day.[46]
The Minister agreed to approach the Minister for Justice to review the
new evidence presented by the Mareshes.
8.60 Senator Evans informed the Mareshes that the AFP had been appointed
to conduct a Review of the new evidence (the Mareshes had requested that
the reinvestigation be carried out by the NCA). The AFP interviewed Mr
and Mrs Maresh on 19 July.
8.61 On 30 June, a review of all the material involved in the Maresh
case was requested of the AFP by Senator Evans. The Review was conducted
by Detective Superintendent Guest, Officer in Charge, International Division.
The AFP Review examined all information available on Benjamin Maresh's
death. The investigation also made its own inquiries in relation to the
four theories relating to the charge of foul play. These were that the
hotel was in financial difficulties and was burnt down as an insurance
claim; that one of the co-owners was in financial difficulties and burning
down the hotel would solve his financial problems; that a local manager
sacked by Mrs Bowes lit the fire; and that finally a competitor, the hotel
whose employees allegedly fought with Ben and who were blamed for incidents
of harassment against the hotel prior to the fire, was responsible for
the fire. Doubts about these theories were raised in the investigation
as well as doubts about the finding that the fire was accidental. These
theories were investigated by examining available material and interviewing
additional witnesses to the fire as well as an interview with an Australian
journalist with the 'Kupang Post' newspaper.[47]
8.62 The Review found that there was no evidence of foul play and while
there were areas which could be pursued further this would require the
co-operation of the Indonesian Government. Detective Superintendent Guest
did not recommend this course of action as the Review had raised no new
evidence.[48] The Review found
that:
I too, like the Victorian Coroner, am unable to totally exclude other
possible factors or circumstances surrounding the fire and am not therefore
able to determine cause and connection.
8.63 The reviewing officer concluded that 'on balance I am of the view
that Benjamin's death was probably accidental'.[49]
The report recommended that the Maresh family be advised of the outcome
of the Review.
8.64 The Maresh family highlighted a number of concerns about the information
contained in the various reports of investigations into Ben's death. These
include the following:
- Mrs Maresh stated that insufficient account had been taken of the
significance of the fight which Ben was involved in prior to the fire,
given that when Ben rang home he was in fear for his safety.
- The family disputed the Kupang police report that Ben's drinking had
contributed to his death. This they believe is supported by scientific
and police evidence that the effects of drink can vary from individual
to individual.
- The family are of the view that if Ben had been conscious at the time
of the fire it would seem likely that he would have got out of the room
or dropped to the ground from his room on the first floor.
- The Maresh family have alleged that although the door was locked the
key was not found in the room.[50]
This is contrary to the Kupang police report which stated that the key
was found in the room. The evidence that the key was absent came from
evidence given to Mr Robert Maresh who conducted his own inquiries in
Kupang.
- The family have disputed that the fire could have been started
by a cigarette as this would have resulted in a fire which smouldered
for some time. Dr. Thatcher, a forensic scientist, did not contradict
the finding of the Coroner but did indicate that 'the damage to
the skull was significant' and this may have indicated a rapid fire
spread inconsistent with a smouldering fire. He concluded, however,
that he was unable 'to determine from what little information was
available whether the fire was or was not suspicious.[51]
8.65 These matters form the basis of the family's concerns regarding
the adequacy of the investigations into Ben's death and their conviction
that Ben's death was not an accident. Although not strictly within the
Committee's terms of reference to address specifically these matters,
the Committee did receive evidence on the nature of the various investigations
carried out.
8.66 The investigations into the death of Ben Maresh proceeded in two
stages. The first included the investigation by the Kupang police; the
AFP liaison officer's unofficial comments to the Embassy in Jakarta and
the autopsy, the results of which were forwarded to the Indonesian authorities.
The second stage included the Coroner's hearing and the AFP Review of
the investigations.
8.67 The AFP liaison officer travelled to Kupang on 20 April. The officer's
role was an informal one with the AFP advising DFAT that the officer 'visited
Kupang during the investigation to ensure that the interest of the Australian
Government was registered'.[52]
8.68 Mr David Schramm, Director International, AFP, said that the role
of the AFP is limited, as it has neither the authority nor the jurisdiction
to conduct investigations outside Australia. The role is one therefore
'restricted to attempting to influence the agency to conduct an investigation
in a manner which meets Australia's interests'.[53]
8.69 The Kupang Police report was made available to the Australian Embassy
in Jakarta on 13 May. The report found that there was no evidence of foul
play. The Maresh family contend that this report 'is discredited, is a
fabrication and is not an investigation'.[54]
8.70 The AFP were further involved in the second stage of the investigation
when they undertook a review of the investigation of Ben Maresh's death.
Mr Schramm outlined the background to this review:
the death in the hotel fire of Ben Maresh gave rise to obvious concerns
by the family in that they had certain suspicions about the circumstances
of the death and that they were not satisfied that the death was by
accident. They had raised these concerns in a range of areas, including
with the Minister. There had been some discussion between the department
and the AFP over the issue, as to how we might be able to best assist
in trying to reach the truth. It was as a result of this that we said
that we would be happy to use our experience to try and do an assessment
of the investigation so that a better judgement could be made as to
whether any diplomatic approaches should be made with a view to having
the Indonesian authorities conduct further inquiries. As a result of
that, the then Minister for Foreign Affairs and Trade wrote to the then
Minister for Justice who requested that the AFP undertake a review to
examine whether, in our view, there were matters that were capable of
investigation, which had not been investigated, but which would give
grounds for the government to consider making an official request for
the Indonesian authorities to open the case.[55]
8.71 The AFP investigating officer stated in that report:
However, because of the doubts highlighted in my report, I too, like
the Victorian Coroner, am unable to totally exclude other possible factors
or circumstances surrounding the fire and am not therefore able to determine
cause and contribution. Though there are several avenues of inquiry
which could be pursued they are beyond the jurisdiction of Australia,
so diplomatic channels would need to be used if it were decided to pursue
these matters. You will note however, that I have not recommended that
course of action. In the absence of any specific evidence of a positive
nature that there was foul play, then it is extremely doubtful that
we would stimulate sufficient interest for the Indonesians to pursue
those matters mentioned. I have to say that at this time there is no
such specific evidence available. While every effort has been made to
establish the facts, on balance I am of the view that Benjamin's death
was probably accidental. I fear that my review will not serve to dispel
the strongly held doubts of the Maresh family.[56]
8.72 In commenting on these findings, Mr Schramm told the Committee that
there was not the evidence to indicate the cause of Ben's death and he
noted that if the incident had occurred in Australia 'it most probably
would have been available, and I speak here particularly of forensic evidence'.[57]
Further, that while the family had suspicions about the motives for murder,
and there was 'considerable innuendo and discussion around these sorts
of issues, there was no evidence'.[58]
8.73 The Maresh family raised concerns about the conduct of the AFP's
Review, including that several crucial witnesses were not interviewed
and that the reviewer carried out no interviews in Indonesia.[59]
The AFP responded that some witnesses were not interviewed because they
resided in Indonesia and the AFP could not interview them because they
were outside its jurisdiction. Nevertheless, the AFP was satisfied that
these people would not, in all likelihood, have been able to provide any
new evidence. Mr Schramm concluded that:
The others were possible areas for follow up but none of them could
be regarded as crucial and the central issue being that none of these
would assist in determining the circumstances by which the death occurred.
There was always innuendo, and there may have been scope for pursuing
the issue of motivation, if there was any, but the crucial issue related
to the circumstances under which the fire occurred. None of the witnesses
we were able to find would have had any information in relation to it.[60]
8.74 Mr Robert Maresh also stated that he had conducted his own investigation
in Indonesia, including tape recordings of eye witnesses, and this was
ignored by the AFP. He alleged that the eye witnesses had information
on a secondary fire, the key to Ben's room and a secret insurance policy
on the hotel.[61]
8.75 A further matter raised by the Maresh family was the 'report' of
the National Crime Authority (NCA) and its recommendation that a further
inquiry take place. The document arose from a visit by Mr Robert Maresh
to the NCA in August 1994. DFAT said that this 'was not a report as such',
the investigating officer listened to Mr Maresh, recorded his concerns
and allegations and put that record to a more senior officer. A copy of
this internal document was passed onto DFAT some six weeks later. DFAT
submitted that it was not a report, rather an internal minute. Further,
it did not contain a recommendation from the NCA to DFAT, rather from
an investigating officer to a senior investigating officer and the NCA
took the matter no further.
8.76 The final paragraphs of this document state:
Although I only have a limited knowledge of the circumstances surrounding
the death of Benjamin MARESH and the calibre of resulting investigation,
there does appear to be a number of questions which this far have been
left unanswered. It is in this light that I request that a report be
forwarded to the Minister for Foreign Affairs with a recommendation
that a representative from that office fully debrief Robert MARESH about
this matter. If it is the case that only a limited investigation has
been conducted into the death of Benjamin MARESH, a formal approach
should be made to the Indonesian authorities. This should be in the
form of a request for them to reopen the matter and thoroughly investigate
it to a standard where Robert MARESH can at least get some satisfaction
knowing that a genuine attempt has been made by the authorities to get
to the bottom of his son's death.[62]
8.77 In evidence, Mr Robert Maresh disputed DFAT's interpretation of
the meaning of the minute. He put the view that the request contained
in the record was clear: that the Minister should be informed. He also
suggested that the NCA should have undertaken the reinvestigation as he
had requested and not the AFP. The NCA in his view already knew about
the case and he inferred that DFAT officers did not wish the NCA to undertake
the Review as the result would have been the NCA recommendation that the
Indonesians reopen the case.[63]
8.78 After examining the NCA document and the evidence taken on this
matter, the Committee is satisfied that the NCA document is an internal
minute recording a conversation between Mr Maresh and an investigator
and not a report. The NCA as an organisation did not have a view on this
matter. It is clear that the recommendation of the investigator to his
superior for the matter to be referred to the Minister for Foreign Affairs
was on the basis of Mr Maresh's comments that only a limited police report
had been conducted and not on any wider examination of the facts of the
case. The evidence shows that the supervisor decided not to act on the
recommendation. A copy of the minute was passed to DFAT informally for
information about six weeks later. It was not referred to DFAT for action.
8.79 Mr Maresh objected to the AFP conducting the Review of the case
rather than the NCA. However, Mr Thompson, DFAT, told the Committee that
from his notes of a discussion with Mr Bob McAllan, Deputy Director of
Investigations, NCA, Mr McAllan told him that he saw no role for the NCA
in this matter. The Committee agrees that the appropriate Commonwealth
body to conduct the Review was the AFP.
8.80 The Maresh family made a number of statements regarding the role
of the Australian Government in relation to the investigations of the
death of Ben and the assistance the family received from the Department
of Foreign Affairs. In relation to assistance, they stated that DFAT offered
no assistance when requested to act on behalf of the family in approaching
the Indonesian authorities; and that 'DFAT failed to offer any assistance
to the inquest in determining the true circumstances surrounding Ben's
death'.[64] Further, Mrs Maresh
stated in evidence to the Committee that she 'kept getting this blank
wall where no-one wanted to be responsible, no-one wanted to help. That
is basically how it has been all the way along the line'.[65]
Sam Maresh said that DFAT 'appeared to be apathetic in playing any role
in helping the family to determine events surrounding my brother's death,
despite being the only government agency with a skill and capacity to
do so'.[66]
8.81 Sam Maresh also said that the family's 'simple request has been
for the Indonesian authorities to re-open the investigation and for it
to be conducted with some form of professionalism and competence'.[67]
8.82 The Maresh family stated that it did recognise the difficulties
of dealing with another sovereign power. Sam Maresh stated:
From the time of Ben's death, we have been totally aware that Indonesia
is a foreign country, that it has got sovereign powers and that Australia
is limited in what it can do, but we wanted the question asked. We realise
the Australian government cannot force the Indonesian government to
do anything, but at least it can make representations. It has not made
representations as yet. We want it to make some.[68]
8.83 Mrs Maresh also acknowledged that the Australian Government cannot
force the Indonesian Government to do anything but she argued that it
could 'stand up' and say, 'Please, we protest; this young man was murdered.
The conditions were ... suspicious and we would like the matter investigated.'[69]
8.84 Several assertions concerning the foreign policy and trade implications
of the investigation into Ben's death were made. Mr Robert Maresh stated
that 'false and ridiculous reports from the Indonesian Police' were accepted
'to try to cover the real truth in an effort to protect "friendly"
foreign policy towards Indonesia'.[70]
Mrs Maresh further stated:
I consider that from day one to this day, Ben's death has been ignored
because of the delicate, sensitive nature of the relationship between
the Australian government and Indonesia. Indonesia is the second largest
recipient of Australian aid. This, apart from anything else, should
make Indonesia accountable and answerable for the welfare of all Australian
citizens. The Australian government and its agencies could have helped
us to find out why Ben was killed, how he died and who was responsible
for his murder.[71]
8.85 Mr Sam Maresh went so far as to take the view that the trade function
should be separated from the foreign affairs function stating that from
his experience, he believed there was a conflict of interest between trade
and consular assistance.[72]
8.86 With regard to foreign policy considerations in pursuing the death
of an Australian overseas, Mr Hamilton reported that the Minister for
Foreign Affairs, Senator Evans, stated:
... absolutely and categorically would he not ever interfere with the
process of an investigation, or diminish the process of the investigation,
into the death of an Australian overseas for trade or political or any
other reason.[73]
8.87 The Committee believes that there is no evidence that foreign affairs
or trade considerations played any part in the Minister's decision not
to ask the Indonesian Government to re-open the investigation into Ben's
death.
8.88 The Government's reason for not asking the Indonesian Government
to re-open the case was that there was no basis on which to take such
action. There were stages in the case when the Government left open the
option of further investigations. In a letter to Mrs Maresh of 20 May
1994, the Minister stated that the autopsy results might provide a basis
for the Embassy to request the Indonesian Police to increase their efforts
and expedite the provision of a report into the circumstances of Ben's
death.[74] However, the autopsy
concluded that the cause of death was due to the effects of fire, with
no other injuries apparent.
8.89 On 27 September 1994, the Australian Embassy was advised that the
Indonesian Police were prepared to re-open the investigations should any
new evidence come to hand.[75]
However, the Victorian Coroner found that although there was evidence
to suggest that the fire was caused by a cigarette, he was unable to exclude
other possible factors or circumstances surrounding the fire and therefore
was not able to finally determine cause and contribution of the death.[76]
8.90 The Review undertaken by AFP officer, Superintendent Brian Guest,
in September 1995, substantially concurred with the Coroner's finding.
He concluded that 'on balance' Ben's death was 'probably accidental'.
As to recommending that the Indonesian authorities pursue the matter further,
Superintendent Guest stated:
In the absence of any specific evidence of a positive nature that there
was foul play, then it is extremely doubtful that we would stimulate
sufficient interest for the Indonesians to pursue those matters mentioned.
I have to say that at this time there is no such specific evidence available.[77]
8.91 The Government's position on requesting the Indonesian authorities
was forwarded in a letter from the Minister for Foreign Affairs to Mrs
Maresh on 13 November 1995:
I have considered the contents of this report [AFP Review] most carefully,
bearing in mind the intense concern I know you and your family continue
to have about the circumstances of Ben's death. With the greatest reluctance,
I have come to the conclusion that there is no basis on which I can
reasonably request the Indonesian authorities to reopen the investigation.[78]
8.92 The Maresh family believe that there is sufficient new evidence
to make a representation to the Indonesian Government. They believe that
the Kupang Police report was fatally flawed and that the investigation
was not properly conducted. In response, Mr Hamilton stated that:
On 1 September we received confirmation from our embassy in Jakarta
that they had been told informally that the publicity surrounding the
death had led the Indonesian national police headquarters to ensure
that sufficient resources were used to produce a thorough investigation
of the case. So, from that source, we were satisfied at the time the
Indonesians had treated it seriously and had done the investigation
properly.[79]
8.93 The Maresh family brought to the Committee's attention the further
investigations carried out by Mr Maresh both in Australian and Indonesia
and the significant inconsistencies in the reports arising from Ben's
death. Mr Hamilton stated that although there were inconsistencies 'I
would not suggest they lead to the conclusion that there were was a murder'[80]
and further:
It was not that it did not meet some sort of established criteria,
it was just that there was what I regard as a reasonable feeling that
you have to have some basis other than the concern of a family asking
a government to re-open a case. It is not asking a trivial thing of
a government to re-open a murder case.[81]
8.94 The Maresh family also relied on the NCA minute. In response Mr
Hamilton pointed out that this was an internal minute and that in fact
its recommendation was 'fairly heavily qualified':
If it is the case that only a limited investigation has been conducted
into the death of Ben Maresh, a formal approach should be made to the
Indonesian authorities.[82]
8.95 In his correspondence with Mrs Maresh, the Minister maintained the
view that should new evidence arise he would be willing to ask the Indonesian
government to re-open the inquiry. After the Coroner's hearing and the
AFP had reached an open verdict, the Senator stated,
I can only reiterate my mind is not closed on this matter and, if substantive
evidence ever emerges to suggest Ben's death was other than by accident,
I will do my utmost to ensure the Indonesian authorities reopen the
case.[83]
8.96 It was on the basis of information available and the steps taken
that the Minister reached the view that, 'With the greatest reluctance
I have come to the conclusion that there is no basis on which I can reasonably
request the Indonesian authorities to reopen the case'.[84]
8.97 The nub of this case for the Committee is whether the then Minister
for Foreign Affairs and his Department made the right decision in not
seeking the co-operation of Indonesian authorities in re-opening the investigation
into the death of Ben Maresh. The then Minister and the Department have
claimed that they did not have new evidence to put before the Indonesian
authorities to justify seeking a re-opening of the case. That claim is
based on a Review of the investigations into this case by the Australian
Federal Police, which came to a similar conclusion to that arrived at
earlier by the Victorian Coroner.
8.98 Both the Victorian Coroner and the AFP Review returned open findings
although they leaned towards accidental death. There is no doubt, however,
that there are loose ends and inconsistent evidence in this case. The
Maresh family has focussed attention on these factors. They also claim
that information obtained by Mr Robert Maresh in his own investigations
in Kupang have been disregarded by Australian and Indonesian authorities.
Do these factors, however, constitute a basis for seeking a re-opening
of the case?
8.99 Senator Evans claimed that he could not ask his counterpart in Indonesia
to re-open a case of a suspicious death unless he had a sound basis for
making such a request. The Committee understands that without substantial
new evidence, a request for re-opening the case could be regarded as a
reflection on the investigation conducted by the Kupang police as well
as the Indonesian National Police Headquarters, which had taken a close
interest in the case as a result of the publicity which it had generated.
As the Indonesian authorities had a copy of the Coroner's report, Senator
Evans would have had to explain why he was raising this matter in the
light of the Coroner's findings.
8.100 All of the Australian authorities which had reviewed the case came
to the conclusion that there was no new evidence that would warrant seeking
a re-opening of the police investigation. The Minister would need to rely
to a large degree on the advice of Government authorities, especially
in such a detailed and technical area. The Committee believes it is understandable
and acceptable in the circumstances that the Minister would be reluctant
to approach his Indonesian counterpart when the relevant Australian authorities
had not supported such an approach.
8.101 There is, of course, a 'Catch 22' situation inherent in this case.
Both the Australian and Indonesian Governments have said they would respond
positively to substantial new information but probably such information
would not be forthcoming without a re-opening of the inquiry. However,
even with a re-opening of the inquiry, there is no guarantee that significant
new information would surface that would show clearly what happened on
the night Ben died.
8.102 As already mentioned, the Maresh family experienced some difficulties
in early dealings with Australian authorities. The lack of co-ordination
between Departments gave rise to the Maresh recommendation that:
Mechanisms should be developed for co-operation between Australian
government agencies so that proper investigation of deaths or disappearances
of Australian citizens whilst overseas can be carried out.[85]
8.103 DFAT submitted that when Mrs Maresh suggested that there might
have been foul play, she was advised to contact the Australian Federal
Police in Melbourne so that Interpol might become involved. When the AFP
referred her back to DFAT, which was the AFP's standard response in those
circumstances, she was again referred back to the AFP.
8.104 The Committee believes that it is intolerable for someone in these
circumstances to be referred back and forwards between two Commonwealth
agencies. If DFAT considers that the AFP should be involved in a consular
case, it should initiate contact with the AFP and, if necessary, make
arrangements for a family member to talk to the appropriate AFP officer.
8.105 Mr Sam Maresh alleged that Mr Paul Ryan, an experienced DFAT consular
officer, tried to dissuade the family from bringing Ben's body back, saying
that the body would be kept in quarantine for a number of months and,
that as the family had brought the body back to Australia, there was nothing
DFAT could do.[86]
8.106 In response to this charge, Mr Ryan denied he had suggested that
the body not be brought back from Indonesia or that it would be placed
in quarantine. He stated 'our responsibility is to get any body of an
Australian citizen that dies overseas back to Australia as expeditiously
and discreetly as possible and then hand the body over to the family'.[87]
He went onto state that he gave the family the option of having Ben's
body returned to Australia or arranging a cremation in Jakarta, but 'before
we could make any movement at all, or any decision had been made by the
family, the father had arranged for it to be privately brought back'.[88]
He also explained that bodies are not placed in quarantine as the Department
arranges with the Department of Health for them to be passed through quarantine
in Australia.
8.107 DFAT also responded on this matter and submitted that Mr. Paul
Ryan was an experienced officer who had been with the Department for 25
years. He was very familiar with such requests for information and assistance.
Further, about 600 cases occur each year[89]
and the standard practice is to give telephone approval to quarantine
to arrange the return of the remains.
The Department provides assistance on matters such as the arrangements
for the disposal of remains, including quarantine clearances, the return
of personal possessions, as well as obtaining and forwarding death certificates
and police autopsy reports.[90]
Mr Hamilton also stated:
However, I could understand perhaps why he [Sam] might use that as
a summary of what he was told. I suspect, given the circumstances, that
what he would have been told, quite rightly, was that there was very
little that we could do in the circumstances, given that Ben was already
dead and that his remains had returned to Australia. The role for Department
of Foreign Affairs and Trade at that point had become extremely limited.
Our normal consular role in such cases is to assist with the return
of remains to Australia, which clearly had already been accomplished
by Bob Maresh himself, and to follow up to some degree with the local
authorities, which we actually did. Mr Maresh may well have felt that
that was us saying that we could provide no assistance, and while it
may not be an absolutely thorough and fair summary, it would not have
been completely wide of the mark. I can see why he might think that
that was said to him. But I do not think, for one second, that it would
have been put in quite such blunt terms. I think it would have been
his summary of a much longer conversation than that.[91]
8.108 Given the practice of the Department and the experience of the
officer who spoke to the Maresh family, the Committee believes that Mr
Ryan's comments were misunderstood by a family member who would have been
in a state of shock and grief. The Committee finds it difficult to believe
that an experienced consular officer would give wrong information about
standard departmental practices. It is important that departmental officers,
while required to give careful attention to technical instructions, also
bear in mind they are talking to people who may be in a highly distressed
and emotional state. It is also important that, in these circumstances,
a personal approach is made to the next of kin or family, wherever possible.
8.109 The Maresh family understandably have many unanswered questions
as to how their son, Ben died and it is tragic that the events themselves
still remain unclear. The Committee is not in a position to change this
situation, however the report does address many of the specific and general
concerns raised by the family.
8.110 DFAT submitted that during 1993-94 the Consular and Passports Branch
received almost 1000 enquiries from next of kin concerned that they could
not contact a family member travelling overseas. Most of these cases were
resolved. Departmental figures indicate that there is only a small percentage
of cases where the family member is actually missing.[92]
Many of these enquiries are made because there has been a `temporary lack
of contact' with a family member overseas. This can be the result of poor
or failed communication facilities within a country, or a person who normally
keeps in regular contact has forgotten to do so. Sometimes it is just
a case of a person not wanting family members to know their whereabouts.[93]
8.111 As a result of the large number of enquiries received, DFAT will
not normally act on cases based solely on a lack of contact or where the
next of kin is seeking to establish a persons whereabouts.[94]
The Department, as a general rule, will only become involved in cases
`based on a well-founded concern for the welfare of an Australian overseas
and a belief that the person concerned needs consular protection or assistance'.[95]
8.112 Departmental procedures in dealing with `welfare and whereabouts
inquiries' are set out in the Consular Instructions. Once the Department
has decided to pursue an enquiry, there are three different approaches
it may choose to follow. The priority of the case determines what approach
the Department will instruct a post to use in order to locate the missing
Australian. DFAT reported that in the majority of cases one of these approaches
will locate the person concerned or he/she will independently make contact
with their family. The approaches used are:
Please locate and contact: to be used in life and death situations
such as the death of a family member. In such cases the Department expects
posts to take all reasonable measures to find the missing person, including
seeking the cooperation of police and arranging for broadcast messages
on radio or television: Please check whereabouts: to be used
in cases where there is concern for a traveller's welfare. In such cases
the Department expects posts to check their registers, contact immigration
authorities, check with police, major hotels, youth hostels, and hospitals
and other likely sources of information; Please advise if subject
comes to notice: to be used in situations such as missing deadlines
or failing to arrive. The Department expects the posts to check their
registers and consular records and check with any contacts given with
the inquiry.[96]
8.113 Before contacting the Department with a whereabouts inquiry, it
is expected that family and friends have used all available channels to
locate the person concerned, such as tracing mail, credit card transactions,
telephone calls and so on. DFAT reported that it has found that as a result
of these routine inquiries many cases are satisfactorily resolved. However,
once all possible avenues have been exhausted, the Department will then
contact the relevant post and begin inquiries into a persons whereabouts.
If a person is located, the Department, bound by the provisions of the
Privacy Act, cannot disclose a persons whereabouts without his/her consent.[97]
8.114 Enquiries into the whereabouts of Australians overseas are handled
by the local authorities. DFAT submitted that it does not have the skill,
the necessary resources, the detailed local knowledge or the 'police'
expertise to conduct extensive investigations. DFAT also stated that 'the
Department's experience is that seeking an overt role for itself or other
Australian agencies in overseas whereabouts enquiries is often viewed
with suspicion and can sometimes prove counterproductive'.[98]
Consular officers, however, do play an active role in ensuring that, as
far as possible, all efforts are being made by local authorities to find
the missing Australian and that the immediate family is kept informed
of the situation.[99]
8.115 DFAT submitted that leaving whereabouts enquiries to local authorities
can pose its own problems, particularly where the authorities operate
in a different manner from those in Australia or when they do not regard
a case as a high priority. A consular official will make representations
to higher authorities if local authorities have proved unco-operative.
8.116 Further problems may also arise when consular staff are seeking
information on cases in some countries. For instance, countries with privacy
laws similar to Australia, can restrict and/or delay the process of an
inquiry as the information requested may be considered privileged. In
other countries, such as India, Pakistan and Iran, not having centralised
database systems results in consular officers having to search for information
at border posts, again delaying the operation.[100]
8.117 The case of Mr David Lindner highlights the difficulties of missing
persons cases. Mr Lindner, an architect from Sydney, departed Australia
on 8 August 1993 for a holiday in Europe, Turkey, Iran and India. He was
due to return to Australia on 8 December 1993. On 11 December 1993 his
mother, Mrs Lindner, contacted the Consular Operations Section in Canberra
to advise that her son had not returned to Australia on that day. The
last contact the family or friends had with David was from Tehran on 8
November 1993. It was established from information supplied by the family
and the Embassy in Tehran that David had not left Iran and that his airline
ticket from New Delhi to Sydney had been cancelled. Enquiries through
Iranian authorities, Interpol and an extensive media campaign failed to
trace the whereabouts of Mr Lindner. Added pressure applied by the Embassy
in Tehran on the local authorities led to further investigations, but
still without result.[101] Mr
Lindner is still missing.
8.118 High level representations were made in this case with Prime Minister
Keating writing to President Rafsanjani seeking continued co-operation
from the Iranian Government. The then Minister for Foreign Affairs, Senator
Evans, discussed the issue with the Iranian Minister for Agriculture,
the Iranian Ambassador and a Parliamentary Delegation from Iran. Senior
departmental officials have also raised the issue with the Iranian Embassy
and Senator Evans sent an Australian Federal Police officer on two occasions
to liaise with local Iranian authorities on the case.[102]
8.119 Although the Lindner family were generally satisfied with the consular
support provided, including during their visit to Iran in February 1994,
they did make a number of recommendations that could improve the current
system which deals with missing persons including that:
- a better system for identifying genuine cases of missing persons needs
to be established;
- once an investigation has begun, the Department should inform the
family on exactly what role it can play so there are no misunderstandings;
- the communication lines between Interpol, the Australian Federal Police
and DFAT need to be improved; it is not the role of the family involved
to keep these departments updated on what the respective departments
are doing;
- and greater efforts by the Department should be made to encourage
Australians travelling abroad to register at either their Embassy or
High Commission when visiting that country, although this is ultimately
at the discretion of the person travelling.[103]
-
8.120 In response to these recommendations, DFAT admitted that referral
of the family to Interpol could have been handled better. The Lindner
family had pointed to the difficulties in contacting Interpol as it is
not listed in the telephone directory and even local police were unsure
how to make contact.[104] DFAT
indicated that more assistance would be given in the future to assist
with the initial contact.
8.121 A further matter raised by DFAT in its submission was search and
rescue missions mounted for Australians missing overseas. DFAT noted that
Australia has in place a comprehensive and free search and rescue system.
While all countries have obligations under various international conventions
to provide search and rescue they may not be to the standard provided
in Australia and they may only be available to those who make a commitment
to pay. DFAT submitted that resource limitations did not enable it to
give a commitment to fund search and rescue services. If payment was required,
the Government 'will do what it can to persuade other governments to provide
the level of assistance that their experts see as appropriate to the circumstances'.[105]
Further, DFAT has neither the resources to control and direct a search
nor can it 'usurp the powers of the local authorities'.[106]
Footnotes:
[1] Committee Hansard, p.
401.
[2] Committee Hansard, p.
401.
[3] Committee Hansard, pp
401-02.
[4] Committee Hansard, p.
404.
[5] Committee Hansard, p.
405.
[6] Committee Hansard, p.
405.
[7] Committee Hansard, p.
405.
[8] Committee Hansard, p.
427.
[9] Committee Hansard, pp
403-04.
[10] Mrs Maresh submission, p.
8.
[11] Committee Hansard,
p. 40.
[12] Mr S Maresh submission,
p. 2.
[13] Translated Kupang Police
Report, p. 1; AFP Review, 7 September, 1995.
[14] Mrs R Bowes submission to
Coroner's hearing, p. 7.
[15] Mr R Maresh submission,
p. 3.
[16] Mrs D Maresh submission,
p. 4.
[17] Maresh paper, Coroner's
hearing, 15 May 1996.
[18] Cable, Australian Embassy
to DFAT, Canberra, 8 April 1994.
[19] Minute, Australian Embassy,
Jakarta to the Vice Consul, 8 April 1994.
[20] Mr S Maresh submission,
p. 1.
[21] Cable from DFAT, Canberra
to Embassy, Jakarta, 8 April 1994.
[22] Minute to DFAT, Canberra
from Embassy, Jakarta, 9 April 1994.
[23] Chronology of events, attachment
to letter from Senator Evans to Mrs Maresh, 20 May 1994.
[24] Mrs D Maresh,submission,
p.11.
[25] DFAT submission, Annex 13.
[26] Committee Hansard,
p. 507.
[27] Chronology of events, Attachment
to letter from Senator Evans to Mrs Maresh, 20 May 1994.
[28] DFAT submission, p. 28.
[29] Committee Hansard, p.
387.
[30] Facsimile from DFAT to Mrs
Maresh, 25 May 1994.
[31] Mr GM Kew submission, Coroner's
hearing, p. 33.
[32] DFAT submission, Annex 13.
[33] NCA Minute, 19 September
1994.
[34] DFAT submission, Annexe
13, p. 5.
[35] DFAT submission, Annexe
13, p. 5.
[36] Mrs D Maresh,submission,
p. 14.
[37] Mrs D Maresh submission,
p. 14.
[38] Letter to DFAT from Mrs
Maresh, 3 February 1995.
[39] Letter from DFAT to Mrs
Maresh, 17 February 1995.
[40] DFAT submission, Annexe
13.
[41] Victorian Institute of Forensic
Pathology, 13 April 1994, Autopsy report p. 3.
[42] Victorian Institute of Forensic
Pathology, 13 April 1994, Toxicology report p. 4.
[43] Coroner's Report, State
Coroner, Victoria, 15 May 1995.
[44] Letter from Mrs D Maresh
to Mr Bob Taylor, Northern Territory Branch, AFP, 20 April 1997.
[45] Letter from AFP to Mrs D
Maresh, 27 April 1994.
[46] Mrs D Maresh submission,
p. 7.
[47] AFP Review, 7 September
1995, p. 3.
[48] AFP Review, 7 September
1995, p. 20.
[49] Letter, AFP Review, 20 September
1995, p. 2.
[50] Committee Hansard,
p. 184.
[51] Dr PJ Thatcher submission,
Coroner's Inquiry, p. 28.
[52] DFAT submission, Annex 12,
p. 1.
[53] Committee Hansard,
p. 427.
[54] Committee Hansard,
p. 517.
[55] Committee Hansard,
p. 428.
[56] Minute from Det Supt BD
Guest, 20 September 1995, p. 2.
[57] Committee Hansard,
p. 429.
[58] Committee Hansard,
p. 429.
[59] Mrs D Maresh submission,
p. 5.
[60] Committee Hansard,
p. 429.
[61] Committee Hansard,
p. 512.
[62] NCA Minute
[63] Committee Hansard,
p. 511.
[64] Mr S Maresh, submission,
p. 3.
[65] Committee Hansard,
p. 157.
[66] Committee Hansard,
p. 165.
[67] Committee Hansard,
p. 165.
[68] Committee Hansard,
p. 518.
[69] Committee Hansard,
p. 176.
[70] Mr R Maresh submission,
p. 6
[71] Committee Hansard,
p. 508.
[72] Committee Hansard,
p. 516
[73] Committee Hansard,
p. 407.
[74] Letter to Mrs D Maresh from
Senator Evans, 20 May 1994.
[75] DFAT submission, Annex 13.
[76] Coroner's Report, 15 May
1995.
[77] Committee Hansard,
p. 388.
[78] Committee Hansard,
p. 388.
[79] Committee Hansard,
p. 398.
[80] Committee Hansard,
p. 400.
[81] Committee Hansard,
p. 406.
[82] Committee Hansard,
p. 396.
[83] Letter to Mrs Maresh from
Senator Evans, 8 December 1995.
[84] Letter to Mrs Maresh from
Senator Evans, 13 November 1995.
[85] Mrs D Maresh, submission,
p. 8.
[86] Mr S Maresh submission,
p. 1.
[87] Committee Hansard,
p. 454.
[88] Committee Hansard,
p. 454.
[89] Committee Hansard,
p. 391
[90] DFAT submission, p. 22.
[91] Committee Hansard,
p. 390.
[92] DFAT submission, p. 63.
[93] DFAT submission, p. 64
[94] DFAT submission, p. 63.
[95] DFAT submission, p. 63.
[96] DFAT submission, p. 64
[97] DFAT submission, p. 64.
[98] DFAT submission, p. 64.
[99] DFAT submission, p. 65.
[100] Committee Hansard,
p. 498.
[101] DFAT submission, p. 65.
[102] DFAT submission, pp 65-66.
[103] Lindner Family submission.
[104] Committee Hansard,
p. 227.
[105] DFAT submission, p. 66.
[106] DFAT submission, p. 66.