MH17 Coroner Michael Barnes, Australian Lawyers in Head-On Crash With the Rules of Evidence

By John Helmer, the longest continuously serving foreign correspondent in Russia, and the only western journalist to direct his own bureau independent of single national or commercial ties. Helmer has also been a professor of political science, and an advisor to government heads in Greece, the United States, and Asia. He is the first and only member of a US presidential administration (Jimmy Carter) to establish himself in Russia. Originally published at Dances with Bears

An Australian coroner and a firm of Sydney, Australia, lawyers have taken the global lead in fabricating criminal charges and billion-dollar compensation claims for the crash of Malaysia Airlines Flight MH17 — without producing evidence. Michael Barnes (lead image), a former tabloid journalist and now coroner for the state of New South Wales, ruled last week that MH17 had been shot down in a “deliberate” act of “mass murder” by “firing a missile equipped with an exploding warhead at the jetliner”. The coroner accepted testimony from the Crown Solicitor assisting the inquest who testified that “certain persons of interest have been identified” as the murderers.

Barnes issued his ruling after he decided to keep secret testimony from Australian police and forensic experts; and after he accepted as evidence a videoclip from the Dutch Safety Board (DSB). This, the coroner ordered to be excerpted in the courtroom, removing DSB criticism of the Ukrainian Government and Malaysia Airlines. Barnes also accepted that the evidence submitted by Catherine Follent, the Crown Solicitor, was “uncontested” and “comprehensive”.

Follent issued a warning in the courtroom, telling Barnes it was “inappropriate” for the coroner to draw conclusions for which there was no evidence. Barnes overruled her.

Barnes has been followed by an American named Jerome Skinner and a Sydney law firm called Leitch Hasson & Dent ( LHD). They claim to have filed suit in the European Court of Human Rights (ECHR) in Strasbourg, charging the Russian government and President Vladimir Putin with liability for the downing of the aircraft.

Publicity for this claim in the Australian media, amplified by the Financial Times and Guardian of London, has not been substantiated by the court itself. According to a spokesman for Roderick Liddle, the ECHR registrar, there is no confirmation that the LDH claim has been received. If it is, lawyers practising at the court say, it is fifteen months past the filing deadline set in ECHR rules, and barred by the ECHR requirement that claimants make their case in national courts first. Liddle refused to confirm or deny this.

The LHD law firm for which Skinner (right) works says it specializes in aviation law, where its website claims a “99% Win Rate”. Skinner himself has advertised a record in other aviation cases in which the principal lawyers involved say Skinner played only a minor part. For more details of Skinner’s advertisements, read this.

Skinner provided a copy of his new lawsuit to the Sydney Morning Herald which reported his signature on the claim papers, and 33 claimants – 8 from Australia, 1 from New Zealand, and 24 from Malaysia. In all, 298 passengers and crew were killed on MH17, the majority of them Dutch.

The newspaper quotes Skinner as claiming the ECHR “to deter the Russian Federation from violating the sanctity of passenger flights should order the Federation to pay each applicant $10 million.” He told a Murdoch news outlet, reproduced by the BBC: “The Russians don’t have any facts for blaming Ukraine, We have facts, photographs, memorandums, tonnes of stuff.” He told selected media his claim document runs to “over 3500 pages in length”. When asked to provide the document, Skinner refuses.

A Sydney Morning Herald reporter, Tim Barlass, (right) says LHD showed him a “partial copy” of papers Skinner claims to have sent to the ECHR. Barlass said he didn’t know if the papers had been officially received at the court, and he has not checked with the ECHR in Strasbourg to verify it. According to Barlass, he was shown the papers by Skinner’s law firm on condition he showed them to noone else.

In a recent Dutch review of the legal remedies available to victims of MH17, legal experts concluded it’s “unlikely that the Court [ECHR] would accept at this stage an application from victims in the Netherlands who had not yet fully pursued domestic remedies in either Ukraine or Russia.” Despite months of advertising by Dutch law firms for MH17 cases, Amsterdam sources reported last week that not a single case has been filed in a Dutch court to date. The Dutch assessment is that there is insufficient evidence about what and who caused the downing of the aircraft.

The one case already submitted to the ECHR by the family of a Dutch victim has been attacked by Skinner and his associates because it targets the Ukraine government for culpability. The ECHR has also politicized the case, represented by Berlin lawyer Elmar Giemulla on behalf of the daughter of MH17 passenger, Willem Grootscholten. Although it has been eighteen months since Giemulla lodged the claim papers, the ECHR has so far refused to proceed. For more details, read this.The case has been assigned an ECHR application number; but today, when Registrar Liddle was asked to clarify the current status of the case before the court, he refused to say.

Skinner and Michael Highland (right), another lawyer at LHD involved in the MH17 case, were asked to say why their claim is not barred by ECHR rules. These set a 6-month deadline for filing claims after the events in cause; that deadline passed on January 17, 2015. The ECHR rules also require claimants to file first in national courts, and prohibit parallel litigation, where the same claims are proceeding in another court. For the claimants Skinner says he represents, the courts of Australia, New Zealand, and Malaysia are open to MH17 claims. Local lawyers say there is a two-year deadline for these courts, and that runs out on July 17, 2016. The Malaysian Government has also introduced measures to prevent lawsuits against the airline.

According to officials at the Supreme Court of New South Wales in Sydney, Skinner and Highland are representing Tim Lauschet in a lawsuit against Malaysia Airlines. Judge Lucy McCallum issued a first ruling in the case last August. Since then the case has been repeatedly postponed at the request of Skinner and Highland. The judge ordered them to file particulars of their claim on May 6, but court sources say they failed to do so. Another hearing in the case is scheduled on May 30. For more details, read this. Skinner and Highland were asked to explain why they believe they can proceed in the Sydney court and the ECHR at the same time. They refuse to reply to emails. A spokesman said by telephone: “we won’t comment.”

Barnes has been in his job as a Sydney coroner since 2013. He was a coroner in the northern Australian state of Queensland before that. According to his spokesman, at one time Barnes was a reporter at The Daily Mirror and Daily Sun, two Sydney sensation sheets now defunct.

The 4-page ruling on MH17 by Barnes, read out in court a week ago, can be opened here. Barnes’s inquest was shorter by a day than the Victorian state coroner’s inquest last December. For details of that proceeding, read this.

 

Left: Serge Oreshkin, father of Victor Oreshkin (right), killed on MH17, who was one of the subjects of the Barnes inquest

The Victorian inquest took courtroom testimony from the Australian Federal Police (AFP) officer commanding the Australian police in The Netherlands investigations; and from one of the pathologists in charge of the post-mortem evidence. By contrast, Barnes allowed no expert witnesses in court. He claimed in his ruling he had “consider[ed] all of the documentary evidence tendered and the submissions made by counsel assisting at the inquest.” In fact, he ordered the suppression of all evidence on which he claimed to have reached his conclusions.

 

Barnes also ignored the warning from the state lawyer, Catherine Follent. Read her statement in full here. In written testimony she told the coroner: “as to the manner of deaths then, in our submission it would be appropriate for your Honour to adopt the findings of the Dutch Safety Board as to the source and mechanics of the detonation, in addition to finding that the deaths of the New South Wales passengers were the result of the actions of another person or persons.”

Follent (right) also told the coroner, according to a SkyNews report: “It would be inappropriate for the coroner to declare the deaths were a result of ‘the action of another person or persons’, as criminal investigations are still under way.”

Coroner Barnes (below, left) was asked to explain why his claims lacked evidence and contradicted what his counsel had testifed he could judge. Follent (centre) was asked the same question. Barnes and Follent said through Angus Huntsdale (right), a press officer for the coroner: “Ms Follent did not make the remarks.” Also, according to Huntsdale, “she didn’t do an interview with Sky News or any other media.”

 

The SkyNews report of Follent’s remarks was published on May 17, the day of the Barnes inquest. Days later, on May 23, when Barnes and Follent were asked to clarify what she had said, they and Huntsdale were provided with the story link. Huntsdale did not deny the media report; in guarded comments he left open the possibility that Follent had made her warning in open court, for which no transcript has been made available. But several hours after Barnes, Follent and Huntsdale had reviewed what Follent had been quoted as saying, her warning to the coroner was removed from the SkyNews version of the story.

The coroner and his associates were unable to remove Follent’s quote entirely. This is how it appeared originally, on May 17.

 

Barnes and Follent were asked to explain why they had imposed a secrecy order on the evidence, and to identify the sources of the documents they had classified. They replied through Huntsdale: “The documentary evidence included portions of the Dutch Safety Board’s report, the reports of the deaths to the coroner by NSW Police, two statements of Australian Federal Police officers providing an update on the status of the investigations (including the Dutch Safety Board and criminal investigations) and forensic pathology reports.”

 

One of the Australian Federal Police (AFP) statements, dating from last November, had been tested in the Victorian Coroner’s Court in December. Kept secret in Sydney last week, this statement was publicly accessible in Melbourne five months earlier. At that time AFP Detective Superintendent Andrew Donoghoe (pictured above) said the evidence on what caused the downing of MH17 and the deaths of the passengers and crew was inconclusive.

Donoghoe also said: “it was also necessary that other scenarios – such as the possibility that MH17 was shot down by another type of missile, or that it was shot down from the air – must be ruled out convincingly.” Donoghoe repeated the point in an interview outside the courtroom, adding this “is a tougher standard than the DSB report.”

By gagging Donoghoe from testifying as a witness, and keeping his 2015 testimony secret, Barnes has claimed the DSB report warranted his conclusion there had been deliberate aiming of a missile at MH17 and intentional “mass murder”. Barnes and Follent refuse to identify what parts of the DSB report they relied on for this conclusion.

Instead, Barnes ordered a DSB videotape to be played in court. Watch it here.

The original DSB videoclip runs for 19:58 minutes. But according to Huntsdale, the coroner’s spokesman, “the first 15 minutes of the clip were played. It wasn’t necessary to play the remainder of the video because it went beyond the scope of the coroner’s inquiry.”

Did Coroner Barnes decide that the last 5 minutes of the tape were unnecessary, he was asked, and why. According to Huntsdale, “the NSW State Coroner made his findings on the basis of the documentary material tendered…coroners do not provide additional commentary on their cases outside of court.”

The missing five minutes of the DSB tape which Barnes suppressed contain two charges by the DSB chairman, Tjibbe Joustra.

The Dutch official blames the Ukrainian government for failure to close the airspace and for putting MH17 at risk. “Ukraine had sufficient information to close the airspace to civil aviation prior to July 17, ” Joustra said. He also criticized the operator of MH17, Malaysia Airlines, for ignoring the risks and flying through the conflict zone.

On Saturday, as Skinner was advertising his claims against Russia in the Australian papers and stalling his claims against Malaysia Airlines in the Sydney court, the Malaysian Prime Minister Najib Razak announced his own agreement on MH17 with President Putin directly.

 

Najib with Putin in Sochi, May 21, 2016

“’I understand and feel the sadness and pain experienced by the families of the victims. I lost my step-grandmother, Puan Sri Siti Amirah Prawira Kusuma in the tragedy,’ said Najib in a post on his website Saturday evening. ‘I see that we have started on positive steps towards seeking justice for the family members and victims of MH17 when the Russian President and I reached an agreement that follow-up action will be determined after the results of the investigation are presented by the Joint Investigation Team in October. I pray that the families of all the victims remain patient in facing the challenges,’ said Najib.”

According to a spokesman for the Dutch prosecutors, who are leading the Joint Investigation Team (JIT), there will be no JIT report in October.