Inquest into the disappearance and suspected death of Theo Jean Hayez

Case Number: 2019/00281850

Date of Findings: 4 November 2022

Magistrate: Deputy State Coroner, Magistrate Erin Kennedy

Catchwords: CORONIAL LAW -Missing persons, Mutual Legal Assistance Treaty (MLAT), telecommunications data, “the cloud”, land searches, LANDSAR, CCTV, Byron Bay

Responses

Recommendations

To the NSW Law Reform Commission and the Australian Law Reform Commission:

1. That the NSW Law Reform Commission and the Australian Law Reform Commission conduct a joint reference into the available legislative powers (and absence thereof) in the investigation of missing persons cases and make any appropriate recommendation. Without limiting the scope of the inquiry, the reference should include examination of:
   (a) powers available to coronial investigators under the Coroners Act 2009 (NSW) including but not limited to:
       (i) the applicability and availability of existing coronial powers to obtain information from modern technology such as smart phones, computers, tablets and laptops, tele-communications data and information contained on the “The Cloud”; and
       (ii) the absence of available powers under the Coroners Act where there is little or no evidence to suggest that a missing person is deceased.
   (b) powers available to NSW Police where there is little or no evidence that a person is missing due to the commission of a crime, or a serious crime, including the availability or otherwise of powers to:
       (i) enter property without consent;
       (ii) search persons or property without consent;
       (iii) access computer or social media data of the missing person;
       (iv) compel the assistance of telecommunications carriers including accessing and interpreting telecommunications data, preserving phone numbers and conducting number re-allocation inquiries;
       (v) compel a service provider to alert authorities when a person uses a service, for example a bank account, phone or SIM card; and
       (vi) seize or compel the production of information, documents or things including password protected phone and computer data and CCTV footage.
   (c) the difficulties encountered by missing persons investigators (in criminal and coronial investigations) with the Mutual Legal Assistance Treaty (MLAT) process when seeking to:
       (i) promptly obtain relevant information from multi-national companies such Google, Uber, Facebook and Apple (including personal data, location data and “geofence” information); and
       (ii) promptly obtain investigative product from investigative agencies and police forces outside Australia.

To the Commissioner of the NSW Police Force:

1. The NSW Police Force develop a pilot “CCTV Register” in the Byron Bay region (the boundary to be determined by the Crime Manager) which identifies on a map the location of all known private and public CCTV cameras and has recorded:
   (a) the contact details of the owners of the CCTV footage;
   (b) the period after which footage is stored or overwritten; and
   (c) software details and any relevant details about how to easily download the footage or issues which may be encountered. The purpose of the Register is to enable Police to identify relevant cameras and quickly obtain footage for review. The Register should be updated on a regular basis, and at least annually. 
2. NSW Police continue to investigate mechanisms, including commercial software platforms, to facilitate efficient downloading and effective viewing of CCTV footage across a variety of software and formats. 
3. NSW Police consider developing a single point of contact service available on a 24-hour, 7 days a week basis to facilitate requests for data and information from multi-national technology corporations, such as Google and Facebook, to assist missing persons investigations. 
4. That NSW Police give close and active consideration to the further development and appropriate resourcing of in-house technical expertise within the NSW Police Force so that missing persons investigations can adapt promptly to developments in modern technology. 
5. That the investigative review component of the Missing Persons Registry (“MPR”) be supported with adequate resourcing to continue their current review into the disappearance of Théo Jean Hayez and otherwise allow the MPR to continue providing their current level of assistance to the coronial system. 
6. The following amendments be considered in the next revision to the Missing Persons Standard Operating Procedures:
   (a) That the first missing person report (9.1, p23 and Annexure A, p92) include questions as to: • the missing person’s email accounts; • their telephone and internet service provider; • any relevant social media apps with a focus on those apps known to collect location data for example Garmin, Apple watch, Uber, Tinder; and • any known passwords for those accounts.
   (b) The officer who takes the first report to submit an iAsk request for Mobile Internet Records (internet activity and location data) within 72 hours of the first report (and 24 hours in high risk cases).
   (c) That the references to the EDR process (p70- 73) clarify that not all service providers have a time limit of 48 hours, for example Google has no time limit.
   (d) That in high-risk cases (per the risk assessment process) the MPR will assess within 24 hours if the case is suitable for requests to be made for:   
       (i) number and data preservation requests to telecoms and/or multi-national data companies; and
       (ii) location and account information through the Fast Track/Emergency Disclosure pathways. 
7. That active consideration is given to conducting a CCTV canvas around the area of a missing person’s “last ping” within 72 hours. That NSW Police consider if revisions are necessary to the Missing Persons Standard Operating Procedures and/or any applicable LANDSAR protocols and training to ensure that:
   (a) there is documentation of (at least) daily briefings between investigators and land search coordinators; and
   (b) adequate continuity between land search coordinators and oversight of searches for missing persons.

To the Youth Tourism NSW:

1. That Youth Tourism NSW (previously the Backpacker Operators Association NSW Inc) be provided with a copy of the State Coroner’s findings and implement a written policy, applicable to accommodation providers, regarding guests who fail to check out without a reasonable explanation. Whereby:
   (a) if a guest does not check out at the expected time, attempts should be made to contact the guest by phone and email, and their room should be checked for personal belongings within 24 hours; and
   (b) inform the police if a guest who cannot be contacted leaves behind a passport (or any other valuable possession).