An Australian coroner's report blaming Russia was deeply flawed and not based on first hand evidence, according to details from the Dutch Safety Board

This article originally appeared at Dances With Bears

Eponymously, much of the Netherlands is close to or below sea level. So it’s susceptible to inundation by sea storms and heavy rains. So long as the man-made dykes hold the water back, the country can be saved.

According to a well-known Dutch history lesson from the 19th century, it took a little boy’s alertness to the dyke leak he spotted on his way to school, to sound the alarm; prevent the dyke from being breached; and save fortunes and lives.

Russians, whose familiarity with Dutch dykes and little boys began with Tsar Peter the Great in 1697, regard this story as a harmless national fantasy. Actually, the story of the Little Dutch Boy, his finger and the dyke was invented by an American novelist in 1865.

But the Dutch are so fond of the fiction, they have erected statues of the Boy and his Finger around their country. These provide opportunities for American tourists to leave coins beside them.

A group of Dutch boys recently spotted a dyke leak of a not so harmless sort. They have called for help to the North Atlantic Treaty Organization (NATO), and to a group of bloggers paid by US corporations.

The leak is coming through cracks in the story of the Dutch Safety Board (DSB) that it was a Russian-made BUK ground-to-air missile, fired by Russian-supported criminals, in territory of eastern Ukraine invaded by Russian soldiers, who shot down Malaysian Airlines Flight MH17 in July of 2014, killing 298 people on board.

The cracks in this story became visible, threatening a flood if the Dutch dyke fails to hold, during the first international courtroom test of what caused the deaths of the MH17 victims.

This was the inquest last week of the Coroners Court of Victoria, an Australian state, into the deaths of those MH17 passengers who were residents of the state. The presiding coroner, Iain West, took evidence from two expert witnesses in court for less than 60 minutes. On the following day he read out his findings for 40 minutes.

The details can be read here and here.

No Dutch reporter or government official attended the proceeding. There were more Australian police and intelligence agents in the courtroom than there were members of the victims’ families. The Australian press reported courtroom statements by representatives of the families; they ignored the details of the witness testimony and the technical reports.

One of the reports – “Environmental Impact and Physiological Strain on Passengers and Crew of Flight MH17” by Andrew Hunt (left), a consultant to the Australian military -- was reported in court as “published”. In fact, it was classified secret. The unclassified cover sheet to Hunt’s report says it “sets out the evidence that I would be prepared, if necessary, to give in court as a witness.”

But Hunt was not called to testify; his report was accepted by the coroner instead, though no mention was made of it in the proceedings, or in the Coroner’s statement of finding. A verbatim transcript of the proceedings was released, but Coroner West will not allow this to be published in full.

The leak the Dutch boys have spotted is that none of the evidence testified to or tested on oath in the Australian court substantiated the BUK missile conclusion published by the Dutch government agency in October. For the full DSB text, read; for the DSB’s particulars on the BUK missile, click. For the public interpretation of Russian state culpability by the DSB chairman, Tjibbe Joustra, read this.

On the contrary, the senior Australian policeman in charge of the ongoing investigation testified in court last week that “conclusive” evidence for the BUK missile is missing.

According to the court record, “the Dutch Prosecution Service made it clear [to the Australian Federal Police] that in order to obtain conclusive criminal evidence 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.”

This means they haven’t been. That is quite a leak. It takes a lot of little Dutch and NATO boys to put their fingers in it.

Australian lawyers say West acted unlawfully when he accepted conclusions from the DSB report without receiving and testing the evidence. West was asked to say what evidence he had received and considered outside the inquest, including this presentation of evidence to which he has signed his name.

West replied through a spokesman: “The investigation is now closed and the Deputy State Coroner has met the statutory obligations under the Coroners Act 2008. As such, neither His Honour nor the Court will be commenting further. The appropriate mechanism for review of a Coroner's finding is by appeal to the Supreme Court of Victoria.”

The Coroners Act says “a coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit.” The statute also prohibits the coroner from pointing a finger of blame. “A coroner must not include in a finding or comment any statement that a person is, or may be, guilty of an offence.”

A higher court may overrule a coroner, or the Coroners Court may decide for itself to reopen an inquest if “(a) there are new facts and circumstances; and (b) it is appropriate to re-open the investigation.”

“West is not entitled to rely upon the DSB”, says an Australian lawyer working on the grounds for a judicial review, “unless that was evidence given to the Inquest. He is required to make his findings on the basis of evidence admitted at the Inquest. He cannot take judicial notice of some other report.

My quick reading of his findings suggest that he did rely upon them, and from a legal point of view that is generally not possible without that evidence being presented to the hearing.”