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Myriam Nafte - Werner Pürstl - Mike Doyle
On May 15, 2006, Bob and Lynda MacPherson appealed to the Austrian Minister
of Justice to conduct an inquiry into the handling of the investigation
of their son's disappearance and death. In a letter to
the MacPhersons dated Sept 5, 2006, the Minister denied their request.
The fifth estate traveled to the Austrian Justice Ministry
to find out why.
We talked to Werner Pürstl, section head for Penal Law and Clemency,
Federal Justice Ministry in Vienna, Austria.
Hana Gartner: Lynda and Bob MacPherson have been trying for 17 years to find out what happened to their son Duncan. Why have you declined their request for an inquiry?
Werner Pürstl: We have been aware of this sad story since 1989. At that time the parents asked the Justice Ministry for help in the search for their son. The Ministry of the Interior, that is the police, and the Justice Ministry tried together to conduct investigations. There were different searches, also some by helicopter. The family's son, however, was not found. Since no results could be achieved, the [legal] procedure could not be continued and only in the year 2003 [sic] his body was found.
The reasons why this accident happened can no longer be reconstructed today. There are different possibilities why this accident happened. The most probable is that the snowboarder got lost in the terrain and, unnoticed by other people, fell into this crevasse. There remained no opportunity for penal investigations, particularly as the matter happened 16 or 17 years ago and crimes that at most could have been the result of inadequate safeguards in the terrain or in the ski area could not be pursued as they had already reached the statute of limitations.
Hana Gartner: There may be a statute of limitations on lawsuits but isn't it for the benefit of others in the future, for their safety, that this be examined?
Werner Pürstl: In principle, the Austrian ski runs and ski regions are safeguarded perfectly and well. In glacier areas there are appropriate warnings. And, as far as it is at all still possible to reconstruct it today, there was also at that time a barrier there where the lift was, and accordingly also a safeguard.
Hana Gartner: According to an affidavit within the police report in 1990, there was testimony from one of the workers on the ski run that when Duncan MacPherson disappeared on Aug 9 they had decided that the hill was 100% safe. They did not fill in the crevasse and put up that fence until four days later.
Werner Pürstl: In the files there are also indications that not long before this accident a similar accident happened where a skier also left the secured terrain despite the barrier installed there, so that there is a high likelihood that a barrier existed. It was of course difficult –
Hana Gartner: I don't understand why was there a probability that there was a fence?
Werner Pürstl: Because some time before, such an accident had already happened in this area and it turned out that the skier at that time, who also fell into a crevasse and met with an accident, left the area secured by a barrier fence.
Hana Gartner: A year before.
Werner Pürstl: Yes.
Hana Gartner: If you don't examine what failed in your system, how are you going to make it better?
Werner Pürstl: Again and again we regrettably have ski accidents that happen because people leave the well-secured ski areas. It is not possible to prevent this, no matter how perfect the barriers are.
Hana Gartner: Is there anything at all in the MacPherson's appeal that is worth considering at all?
Werner Pürstl: The Justice Ministry can only examine the penal side. Is someone at fault in this ski accident or did the accident happen because of his own fault? And as the situation appears now, after 17 years, an examination from the penal point of view is no longer possible because the statute of limitations has long expired, thus the judiciary cannot proceed. But the case is not just known in judiciary circles. The Ministry of the Interior, the local authorities in the area where the accident occurred have for many years been concerned with the case on an ongoing basis and I can assure you that this case certainly also has an impact on the safety system.
Hana Gartner: Was there anything at all in the appeal that had any merit?
Werner Pürstl: I cannot answer this question for the judiciary. I can only say that relevant lessons are learned from all accidents that occur in the ski terrain, and that the highest value is placed on safety in the ski areas in Austria. That there are accidents again and again, and that there is incautiousness again and again is a reality. That happens in Austria and it happens in the neighbouring countries, as it most probably also does in your country.
Hana Gartner: You are categorical about the fact that Duncan MacPherson had an accident. The deputy chief of criminal investigations is certain, it was an accident, case is closed. The two cops who were looking at the frozen body decided this was an accident. Nobody was responsible except the victim himself. No one even for a moment entertained the notion that something else except an accident could have occurred.
Werner Pürstl: We can only pursue suspicions if we have evidence for such a suspicion, and we have no suspicion that here someone perpetrated a criminal, intentional act leading to death. And with this, there remains only the question of negligence, and this question we can no longer verify after 17 years.
Hana Gartner: You can see the vicious circle. There is no proof because there was no investigation, no autopsy. There was no investigation because you assumed it was an accident. So you go in circles.
Werner Pürstl: Yes. Yes. But the cause of death, the sequence of events is well established. For an intentional criminal act there are no clues; therefore it is also not necessary here to do an examination through autopsy of the corpse.
Hana Gartner: Your letter to the MacPhersons said that you speak on the part of the ski operator and that everything that could have been done was done. Why would the ministry speak on the part of the ski operator on whose property Duncan MacPherson's body was found? Are you completely impartial?
Werner Pürstl: We tried to give an answer that illuminates and also explains the whole problem. And we also presented and illuminated the view of the Austrian ski operator, but this of course something that is outside of the scope of the judiciary. The judiciary itself can only take the position that there is no evidence of a crime and can, therefore, from the perspective of criminal justice, not investigate the matter further.
Hana Gartner: Dr. Walter Rabl, who identified Duncan MacPherson's corpse, believes today that there should have been an autopsy. He also said he feels guilt for all of those people involved in the investigation who failed to do their job. Did you know he feels that way?
Werner Pürstl: No, I don't know that. But I can't really accept these accusations, can't accept them for the judiciary, because the body was found after 15, 14 years. The body was of course examined externally, there were no indications of a violent act against the deceased and there was a very obvious explanation for the events. After all, the deceased was found in a crevasse and from this arises a very obvious version of his death and this is actually enough to clarify the facts.
Hana Gartner: We asked an independent and respected forensic anthropologist to examine the facts of the case. After examining documents, photographs, and medical evidence she considered that this was a textbook case of how not to conduct and investigation.
Werner Pürstl: This is an opinion that does not correspond to the opinion of the Austrian judiciary, because the investigations normally done after such an accident were done, just as is done in all accidents, and there is no deviation from the normal investigative work.
Hana Gartner: She also said that she believes some of his injuries that she saw in the CT scans could have been caused by a very large machine.
Werner Pürstl: That is a version that actually can't be explained because I wouldn't know what machine could come in contact with him there. The fact is that he was found in a crevasse and accordingly must have had many injuries resulting from the impact. What evidence of a machine he had, I don't know, and what meaning this allows, I don't know at all.
Hana Gartner: According to Dr. Rabl, those injuries were minimal. There was no skull injury, no neck injury. He saw the CT scan. According to Dr. Rabl, Duncan MacPherson died of suffocation.
Werner Pürstl: That is possible, yes. Yes, that is possible. I am not familiar with the details of the reports but there are at least no indications that he was in any way assaulted by someone or even that someone killed him.
Hana Gartner: What do you make of the MacPherson's inability to let this go?
Werner Pürstl: We have been in continuous contact with the MacPherson family for 15 years. We try to explain to the family the possibilities and limits of the, the investigative work in this case. We checked each request and reacted accordingly. We telephone the family again and again. It is understandable that the family cannot accept this event and there is also on our part a corresponding sympathy, but in practice this is an area where the judiciary has limits and cannot go further.
Hana Gartner: The investigation that is the basis of their request to have an inquiry was full of contradictions, full of misinformation. The deputy chief of criminal investigations admitted somebody lied, but he didn't think it made a difference because MacPherson had an accident and he died and that's just a side issue.
Werner Pürstl: Yes, but this is the actual and very self-evident explanation. And that is no deception or wrong information. Rather from the whole process, from the site where he was found, and from the modality of the discovery a very, very large probability can be assumed that this was an accident. And this leaves only the question of whether here at most a contributory negligence of those responsible for the ski area exists, a question that today we can no longer answer.
Hana Gartner: What should I tell the MacPhersons?
Werner Pürstl: The Austrian judiciary is in this situation not able to prosecute anyone. One must be able to release this event as a judicial matter.
Hana Gartner: You think they just can't face the fact their son is dead and they want to blame somebody?
Werner Pürstl: I cannot say what the actual motivation behind the family's activities is. With all appreciation for the fact that they cannot accept the death, one has to evaluate the situation realistically. And here it, is seems, this assessment comes from an emotional evaluation of the matter.