Circumstances, Comments and Recommendations
Monday, 26th August 2002
IN THE CORONERS COURT HELD AT BURNIE
INQUESTS INTO THE DEATHS OF :
Ronald Clement HILL
Kimm Ronald GILES
Robert Clyde KIRKPATRICK
Pursuant to a written authority under the hand of the Chief Magistrate of Tasmania, in accordance with section 50 of the Coroners Act 1995, each individual death was investigated at the one Inquest.
This Inquest has necessarily been a lengthy one, it has taken 21 days of extended sitting hours, evidence has been given by 48 witnesses, there are 208 exhibits, and the transcript of the proceedings is contained in 3,700 pages.
As this Inquest has taken such a period of time, I intend to acknowledge the assistance of some involved in the hearing.
Firstly, I acknowledge the assistance of Counsel Assisting, Mr Lorenzo Lodge from the Department of Public Prosecutions, and I would also like to record my appreciation for the assistance given to me by the Hobart Coroner’s Office, and in particular, Mr Rod Carrick and Miss Alison Kay.
It would be remiss of me not to thank all Counsel appearing, and in particular, I express my gratitude to Mr Peter Dunning, for the thoroughness of his presentation and his willingness to obtain evidence to assist me in reaching my determinations.
Finally, I would like to express my appreciation and gratitude to Tasmania Police and AusSAR for their frankness and assistance, in what was a most difficult situation, having regard to the widespread publicity, and the willingness of staff of both organisations to produce documents and witnesses without hesitation or reservation.
As with many tragedies the facts can often be woven into a mesh of innuendo and ill-informed comments, and frequently many people will speak with the benefit of hindsight, without realising they are doing so and will re-construct what must have happened as opposed to what did happen. These persons are not being deliberately obstructive or mischievous, but the emotions of the time can cloud one’s ability to be discerning, and, coupled with time, memories can become blurred, particularly as to the chronology of events and the time of formation of opinions.
I acknowledge these human frailties so that I may not fall victim to such conduct.
At the outset, let me make it clear, the system did not let these three individuals down, in that the system did not lead to or contribute to their deaths. What their deaths have done is to highlight deficiencies in our system of search and rescue and the need for them to be modified so that those deficiencies do not contribute to a death in the future.
I am not going to apportion blame on any person or organisation, however it will be necessary to refer to deficiencies, as I perceive them, so that those who read this finding and its recommendations will understand my perspective and the reasons I have made those recommendations.
1. The Vessel
The Margaret J was built by the deceased Ronald Clement Hill in 1992.
It was a welded aluminium catamaran, commonly called a storm cat, built to plans approved by the Navigation and Safety Survey Authority of Tasmania on the 8th January 1992. Subsequently, it underwent survey and a Certificate of Survey was issued on the 22nd October 1992.
The initial survey was required as the vessel was to be used for the carriage of passengers and in particular, for seal cruises.
When initially surveyed the vessel had a measured length of 10.5 metres, but subsequent surveys disclosed a length of 9.2 metres, with its beam, depth and gross tonnage remaining constant. It would seem that the late Mr. Hill applied for a scale fish licence but this was refused due to the vessel being 10.5 metres. Mr. Hill commissioned a Mr. Peters, who was a witness at the Inquest, to re-measure the vessel and on the 10th of January 2000 Mr. Peters determined it was 9.188 metres. I do note that after the sinking when the vessel was presumably remeasured by Mr. Wright on the 22nd of May 2001 he found the vessel to be 10.5 metres.
The vessel was initially licensed to carry 2 crew and up to 13 unberthed passengers, however as a fishing vessel operating under class 3 C (fishing) licence, the vessel was limited to a crew of 2, with no passengers and permitted to sail within all Tasmanian coastal waters, but not more than 30 nautical miles to seaward from the coast.
There was a further condition imposed from the survey report, namely, the vessel was limited to a maximum of 8 persons on the upper deck. This condition was contained in the survey report dated 22nd October 1992 and contained in the Certificate of Survey issued by the Navigation & Survey Authority of Tasmania on the 19th January 1993 and carried forward each year thereafter up until the final survey performed by Mr. Peters on the 4th April 2001.
From the evidence I have been unable to ascertain the actual year that Mr. Hill ceased the seal cruises, but I infer it was in about 1999. Again the evidence is not conclusive but in late 2000 and early 2001 Mr. Hill carried out a number of modifications to the vessel, I infer for the purpose of converting it from a pleasure craft to a fishing vessel.
The modifications are referred to in the report of Gwyn Ronald Alway, annexed to his affidavit of the 11th July 2001. Item 6 of the report is headed "non - approved modifications to this vessel since initial survey" and refers to the upper deck being modified and the area of 4.4m2 had been significantly increased, a 4 cylinder diesel engine having been mounted on the upper deck and further, a gantry and derrick extending 5 metres above the main deck had been installed.
The vessel had also been fitted with AC electrical wiring, clearly as a result of the installation of the generator.
It was also reported that the freeing port area comprising 0.068m2 and a centre opening in the aft bulwark at initial survey had been reduced to 0.029m2 and the centre opening had been closed off. This was also referred to in the report from Det Norske Veritas on the 18th of May 2001, where it was stated,
"several of the main deck freeing ports were found to be fitted with sliding shutters. The arrangement was such that closed shutters would not automatically allow freeing of entrapped water",
and further in the report,
"freeing port shutters, when fitted should be designed to allow the automatic freeing of entrapped water".
In the report of R. L. Wright dated the 19th October 2001 at paragraph 4. 19 he said
"The minimum freeing port area required by the Unified Shipping Laws Code Section 7 Clause 22 is calculated to approximately 0.3m2. The actual freeing port area existing after fitting blanking plates with 30 mm holes is calculated to approximately 0.013m2. That is equivalent to 5.38%."
It was not explained why the figures supplied by MAST and those of Wright’s varied, however, it is clear that the fitting of the plates and the closure of the centre opening had significantly reduced the ability of the vessel to free entrapped water.
The converse of this is, the vessel will trap water on its deck, and by - law 52(3) provides that if substantial quantities of water may be trapped on deck, the effects of such water are to be considered in the stability calculations of Part 7 of the By-Laws.
I raise this issue here, as much evidence was adduced as to the stability of the Margaret J.
There is a further reference in the By Laws, being regulation 174(1) which provides that if a vessel has approved stability data, which the Margaret J did, and the vessel undertakes a significant modification, the vessel owner must ensure further stability testing and appropriate revision of the stability booklet is undertaken and approved by the Authority.
The words "significant modification" is defined as being "a change in the hull, superstructure, deckhouse, rig or machinery of a vessel that alters the dimensions, shape, strength, stability or performance of a vessel".
Applying this to the work performed on the Margaret J, it has undergone a significant modification. The installation of the generator has added a further weight of at least 500 kilograms (see report of Wright paragraph 4.2)
The fitting of the gantry and derrick, the mast, boom and hydraulic winches and tackle would only add further weight to the upper deck, and I accept the comments of Wright that "the total weight of equipment fitted on the upper deck would be considered well in excess of the Marine & Safety Tasmania restriction of 600 kilograms. (i.e. 8 people at 75kg (solas definition)."
Without being critical of those who perform surveys, I find it surprising that the modifications were not noted during surveys.
By-Laws 34 of the By-Laws requires owner of vessels to have available the vessel survey record book for the surveyor during surveys. An inspection of this book may have disclosed some of the alterations undertaken and the vessel could have been required to undertake further stability testing.
It is noted that the Procedures Manual for the Surveyors does not require the Surveyor to seek information from a vessel owner as to modification, significant or otherwise.
Whilst the current system allows for a rotation of surveyors, and therefore a surveyor cannot become too familiar with a vessel owner, it has the obvious disadvantage in that there is not the continuity of sighting of the vessel by one individual and the greater probability of significant modifications being observed and detected.
In this particular instance, the installation of the generator, gantry and derrick may well have been observed and the vessel required to undergo further stability testing. The fitting of the plates over the freeing port may have been observed, as well as the fitting of the new electrical system.
There is no conclusive evidence that these modifications would have significantly affected the stability or safety of the vessel, or in isolation could lead to the sinking of the vessel, but it is possible that a combination of external factors, coupled with these modifications may have played a role in the sinking.
Another issue that arises out of the survey is the reference to audible bilge alarms. An examination of the correspondence file with the relevant Authority discloses the following matters of which I can make findings.
On the 28th May 1997, the vessel was surveyed by Gwyn Alway and at this time a requirement was placed on the vessel that audible bilge alarms were to be fitted prior to the Certificate of Survey issuing. Despite this, on the 9th July 1997 the certificate of survey was issued without any further inspection to confirm the fitting of the alarms. The vessel was certified in survey until 28th May 1998.
On the 25th November 1998, the vessel was again surveyed. At this time it would have been 6 months out of survey. On this occasion there was written on the report a number of matters to be attended to and in handwriting on the form, and what appears to be under the hand of G Alway is the note:
"Note: 26/11/98 Contacted owner re audible bilge alarms – DD16724
It was agreed to trigger an alarm in the W/H (wheelhouse)"
On the 8th December 1998 a letter was forward to Mr Hill from Superintendent J Lewis requiring audible alarms to be installed.
On the 24th December, a letter was forwarded by Mr Hill addressed to Mr Alway stating that all matters had been attended to.
The Certificate of Survey was issued on the 6th January 1999 and to remain in force until 25th November 1999.
A survey undertaken by a Mr Clarke on the 30th November 1999 makes no reference to the audible bilge alarms. The Certificate of Survey was issued on the 18th January 2000 and was to expire on 25th November 2000.
On the 16th January 2001 a letter was forwarded by MAST under the hand of Mr Alway indicating that the vessel was out of survey and as a result the vessel was under temporary suspension.
Mr Hill replied to this correspondence indicating that maintenance was being carried out and survey would be undertaken on completion.
On the 4th April 2001 a survey was carried out by Mr Peters, and under the heading "5. Pumping arrangement" the item ‘Bilge alarm x2’ is ticked.
Mr Peters conceded at the hearing that this was incorrect, and that no bilge alarms had been fitted. It was not a matter of him making a deliberate false statement, he just did not check it. As a result of the survey a Certificate was issued on the 10th April 2001, expiring on the 4th April 2002.
An examination of the survey book discloses that the vessel should have been slipped in 2001, but due to the surveys not being performed on the due dates it would seem that this was overlooked.
A perusal of this survey record book highlights a deficiency in the application of the survey program established by the supervising authority. If the program had been adhered to the Margaret J should have been subjected to an out of water survey in 2001, this would have required the vessel to be slipped. As surveys were not undertaken on the allocated dates, it would seem this was overlooked.
The Margaret J was fitted with 3 radios, a MX 1600 HF/SSB radio, a GME GX 558 VHF transceiver and a GX 287A 27 mHz transceiver. The power for the radios and for the navigation/fish finding equipment was supplied by a battery which was sited in the deckhouse.
There was some criticism of the 27 mHz transceiver, but I infer this criticism was directed to a situation where such a transceiver was the only radio fitted and not directed at the Margaret J which was more than well equipped with communication equipment.
Whilst there is no conclusive evidence as to the state of the radios at the time of the sinking of the vessel, I accept that at the time it was inspected by Mr Wright of R.L. Wright & Associates Pty Ltd, the HF/SSB radio was switched off and on channel 9, the VHF transceiver was switched on, and the 27mHz was switched on and tuned to channel 82. Channel 82 is the channel that is frequently used by fisherman to communicate with each other at sea.
Although the vessel was well equipped it would seem that Mr Hill rarely used it, and generally, he would inform his wife as to his expected return date, and would not communicate with her whilst at sea. It is clear he did not broadcast his position or maintain regular or, for that matter, any schedules with base radio stations. Further, it would seem that he would use his mobile telephone to contact his wife when close to port, this being confirmed by Mrs Hill in her evidence.
When the vessel was first constructed, the original electrical system comprised a 12 volt DC system, which was supplied by two sets of batteries which were housed in raised battery boxes on the main deck. These batteries supplied power for engine starting, and general purposes, including the float operated electric bilge pump.
Subsequent to this, I infer, during the recent alterations, a 4 cylinder diesel engine was placed transversely on the fly bridge. This engine was connected to a 240 volt alternating current alternator by way of a pulley belt, and to a hydraulic pump by a gearbox.
In his report, Mr Wright stated,
"The 240v ac system comprised a number of domestic household extension leads, secured to the vessel’s structure and with multiple power sockets. The power was supplied to domestic household fluorescent light fittings in the deckhouse and to domestic internal power points and switches on the deck head on the external main deck."
In his report Mr Wright indicated that the use of domestic internal 240 v AC cables, power boards, power points and switches is not considered appropriate and does not comply with Section 9, Clause 29 of the Unified Shipping Laws Code.
Clearly from the evidence, the channels through which the electrical cables were laid were not waterproof, and this enabled water to flood through the channels to other parts of the vessel.
The vessel at the time of its sinking had two Epirbs on board. One was located on the forward shelf with a battery expiry date of October 1997 on the casing. The second was fitted in a bracket located on the bulkhead immediately behind the helmsman’s position, and at a height where it could be easily activated or if necessary removed from its bracket for transportation to another location. This Epirb had a battery expiry date of September 2003 and bore serial number 8090322. The older EPIRB was replaced when the vessel undertook its last survey.
The vessel was fitted with a battery operated clock, and, after salvage, this clock was noted to have stopped at 11:33 hours.
The vessel was also fitted with two dinghies. The original survey discloses a 3.6 metre Manta Craft aluminium dinghy fitted with a 5 hp Suzuki outboard motor. It would appear that this was the first occasion that the vessel had carried two dinghies.
The vessel, according to the MAST survey report of the 4th April 2001, was equipped with 15 life jackets which were stowed in the accommodation/bunk area forward of the helmsman’s position. At the time of the inspection by Wright, he located a total of 8 Coastal Multi fit life jackets all fitted with light batteries valid until October 2003.
The vessel was fitted with a ten (10) man RFD ‘SURVIVA’ life raft which had undergone survey by a Mr J Hooper of Tamar Marine on the 7th March 2001.
Mr Hooper is employed by Tamar Marine at Launceston as a Life raft Surveyor. He stated that on the 6th March 2001 he had inspected the Surviva life raft bearing number 03863, being the life raft from the Margaret J.
The date of manufacture of the raft was noted as being October 1987.
A survey of a life raft necessitates the inspection and examination of a number of specified areas which is in excess of 100 in number, and each is examined and is marked as being checked on the appropriate sheet.
From his notes Mr Hooper was able to state that he had replaced expired batteries to a torch in the raft, had replaced 20 satchels of water each containing 500ml, 10 seven ocean ration packs, which included an energy biscuit, 2 red hand flares, an orange smoke flare and 6 chemical lights.
He had also undertaken a test of the raft’s pressure, and whilst there was a "slight pressure drop" it was within the manufacturer’s guidelines.
Subsequently, Mr Hooper was able to inspect the life raft after it had been recovered from Seal Island. He indicated that one Cyplumg light stick had been used as a rubber band had been attached to it, and this could have occurred only after it had been removed from its packaging.
It is noted that a previous survey was carried out on the life raft on the 20th December 1999, this is evidenced on the re-certification certificate. This certificate also indicates that the raft was to be re-serviced no later than 20th December 2000.
Notwithstanding this requirement the raft was not re-serviced until March 2000, and it would seem that MAST has not taken any active steps to ensure compliance with this requirement. No sanction appears to have been imposed on the owner of the vessel for failing to comply with the requirement, and clearly there needs to be a process implemented whereby a vessel licence is suspended and shall not be put to sea if there had not been compliance by the due date.
The raft was fitted with a 4" heliograph. A heliograph being a signalling device which can be utilised by a person to signal his or her presence. The reflection of the sun from the heliograph mirror can be seen at a range of 20 miles in good weather conditions.
When recovered no painter rope was located on the hard point on the raft, being a point adjacent to the access, on the gas bottle side of the raft, and a knife supplied with the raft to be utilised for the purposes of cutting the painter was missing from its storage pouch. The absence of the knife is a strong indication that it was removed by one of the survivors of the sinking of the vessel.
In his report, Mr Wright indicated that a diagram adjacent to the knife pouch depicted the proper method of cutting the painter rope, which if followed would lead to a piece of painter rope being left attached to the hard point after the painter rope had been cut. Whilst that depiction may be the proper method one could not assume that a person finding themselves in a life raft will take time to read instructions as to how to cut the painter rope. In a moment of panic a person may cut the actual loop where the rope is tied to the hard point, this could be necessitated if for example a life raft was deployed and the main part of the painter rope had become entangled and the raft was at risk with being pulled down with the vessel. There are a myriad of explanations which could be given but could only be viewed as speculative.
Certainly I cannot make a conclusive finding save and except that a person or persons have survived the initial sinking and have deployed the life raft and the painter rope knife has been utilised, presumably, to cut the painter rope.
During the inquest reference was made as to the electrolysis of the hull of the Margaret J. I am unable to make any finding that electrolysis in any way contributed to the foundering of the vessel. The vessel clearly suffered damage during the attempted salvage. The vessel was dragged some distance, estimated by one witness to be 500 metres. I am unable to determine what effect this would have on the hull, but can infer that metal on sand would have a similar effect to sandpaper, and this could cause thinning of the hull. Of course the vessel would have drifted along the sea bottom for a number of days, and this is evident from the changed locations recorded, and this would undoubtedly have a deleterious effect on the hull.
2. The Crew
Ronald Clement Hill
The deceased was aged 64 years having been born in Burnie, Tasmania on the 31st day of October 1936. He resided with his wife, Margaret, at Ulverstone. The deceased was, according to the evidence of his wife, an engineer by trade although, evidence of his actual qualifications was never tendered or presented to me during the course of the Inquest.
There is evidence of the deceased being physically tired prior to the voyage on the 9th day of April 2001 however, there is certainly no evidence to suggest or infer that he suffered from any illness or injury that may have affected his ability in the operation of the vessel.
The evidence before me does not allow a finding to be made as to the deceased’s swimming capabilities or otherwise. I do not believe, having regard to the conditions prevailing at the time and subsequently, that swimming ability or lack of it would have created a different outcome.
The deceased was the holder of a limited coxswain’s certificate (1628) issued in 1993. The certificate authorised the deceased to operate vessels to twelve (12) metres in length in an area of three (3) nautical miles to seaward from the coast and thirty (30) nautical miles from the point of departure on the seaward limits of a port.
Robert Clyde Kirkpatrick
The deceased was aged 48 years having been born on the 14th day of October 1952. He resided with his partner, Donna, at Stanley in Tasmania.
The evidence clearly indicates that the deceased had been involved in the fishing industry for a number of years although he didn’t hold any formal marine or fishing qualifications. He had previously been employed as a deckhand on a Cray-fishing vessel.
There is no evidence to suggest or infer that the deceased suffered from any illness or injury that would have affected his ability to fish and perform associated duties during the course of the voyage. Furthermore, on the evidence presented, I am satisfied that the deceased was a competent swimmer.
Kimm Ronald Giles
The deceased was aged 41 years having been born in Queenstown, Tasmania on the 20th day of February 1959. He was a disability pensioner, having suffered injuries to his right arm and left ankle. He resided at Ulverstone.
The deceased had no formal marine or fishing qualifications although I think it is clear, on the evidence, that he had been associated with and performed duties in the fishing industry as a deckhand on many occasions.
As with Mr. Hill and Mr. Kirkpatrick there is certainly no evidence to support any assertion that he suffered from any illness or injury that would have affected his ability to fish and perform associated duties.
Again, the evidence before me does not allow a finding to be made as to the deceased’s swimming capabilities or otherwise. I do not believe however, having regard to the conditions prevailing at the time and subsequently, that swimming ability or lack of it would have created a different outcome.
3. The Voyage
The Margaret J left its home port of Ulverstone on the 7th April 2001 at approximately 11.25 am with the intention of travelling to Stanley. Mr Hill had informed his wife he was going to fish around Robins Island. It was his intention, if he could catch a sufficient quantity of fish, to sell them to people for Easter. He was intending to return to Ulverstone via Stanley on Thursday the 12th April.
When the vessel left Ulverstone Mr Hill and Mr Giles were the only persons on board, it being the intention to collect Mr Kirkpatrick at Stanley.
The vessel arrived in Stanley on the same afternoon and the crew met with Mr Kirkpatrick and Miss Beeton, and at approximately 5:35pm they were on the wharf, as it was at this time Mr Hill had telephoned his wife.
It would seem from the available evidence that there had not been any significant problems experienced during the trip from Ulverstone to Stanley, as none were mentioned to either Mrs Hill, Miss Beeton or to Mr Kirkpatrick.
The only reference to any problem was referred to by Darryl Stafford who had spoken with Mr Hill whilst the vessel was moored at Stanley. He had been discussing a business proposition with Mr Hill and had asked him when they were going fishing and Mr Hill had indicated they would be going out on Monday as the weather had been "pretty rough" when they had come in to Stanley. Stafford noticed that one of the engine covers had been removed, and when he enquired of any problem, Mr Hill had informed him that one of the engines was idling slower and he had just adjusted it.
In his evidence at the Inquest, Mr Stafford was firm in his evidence that Mr Hill always stored the life raft in its cradle and tied it off at a hard point, being the hand rail. Despite the innuendos, I am satisfied that the life raft was correctly stowed in its cradle and was tied to a hard point.
One of the last persons to see the Margaret J was Daryl Stafford. He had followed the Margaret J as it left Stanley on Monday, 9th April, at about 10:00 am. In his affidavit he said as he got around the Nut he could see the Margaret J "out around the North Point area". As his vessel reached an area known as Cow and Calf, he encountered a couple of big troughs, so he made a decision to return to port. At this time he had travel agents on board. He said the "weather got rough pretty quickly due to a strong northerly. From the time it got a bit rough to when I decided to return, the waves had increased in intensity to be breaking over the bridge of my vessel."
As to his returning to port, he said the tour agents had wanted him to continue on the tour but he had refused saying he was responsible for their safety. On his return he had told his wife that she should put the kettle on as Ron and Kimm would be back within a short time, which could only be indicative of the state of mind of the witness and his perception of the weather at that particular time.
When questioned further as to his returning to port, he said, "I turned around because I had people on board. But I mean Ron Hill’s vessel was a lot more seaworthy probably than mine is, like in those sort of seas". He explained this saying his vessel was a 30 foot mono-hull whereas Mr Hill’s vessel was a 35 foot catamaran.
There has been much comment as to the stability of the Margaret J, and some comments as to its listing as it left the Port of Stanley. Mr Stafford was asked as to whether the Margaret J was sitting differently as it left port, and he said it was not sitting any differently on the water.
He was asked as to the presence of 2 forty four gallon drums stowed on the fly bridge, which he totally refuted.
4. Foundering of Vessel
There is a lack of direct evidence as to the actual circumstances surrounding the sinking of the vessel, by this I mean there is no eyewitness account, and many scenarios have been suggested as to the possible and probable circumstances.
There is circumstantial evidence, whilst perhaps not acceptable in a criminal trial, allows certain inferences to be drawn.
Firstly, there is an absence of any radio broadcast from the vessel indicating it was in any difficulty. From this it can be assumed that the vessel sank without any or with little warning preventing the crew from using them, or conversely, the initial incident which affected the vessel may not have been considered life threatening by the crew and then intervening circumstances changed the outcome.
In support of the second scenario, is the presence of a bilge pump set up in the engine compartment and connected to the starboard side batteries by alligator clips. If the vessel sank without warning it is highly improbable that the crew would have spent time connecting the bilge pump. There is evidence that the Starboard engine compartment cover was open.
There is the overwhelming evidence that the life raft which was fitted to the vessel was deployed and used by the crew. There is some suggestion that the life raft may not have been in its cradle, however having reviewed the evidence, I am satisfied that the life raft was so placed and further, I accept the evidence of Daryl Stafford that he had observed the life raft in its correct position previously, and further that it was tied to a hard point.
I find some support for this proposition in that it is clear on the evidence that a 10 man life raft is not a light piece of equipment, there is reference to the use of a crane to lift it into place. One would not consider that any one of the crew on his own would be capable of deploying the life raft. I have had the opportunity of seeing a 10 man life raft in position on a fishing vessel and I am quite satisfied that in normal circumstances it would take the strength of 2 men to lift it from its cradle and deploy it. This would be more likely, taking into account the fitness of the three crew. At this point I should add that this is one case where bigger is not necessarily better, and whilst I cannot say what effect the presence of a smaller life raft may have had in relation to this tragedy, it is a matter to which I will give further consideration in my recommendations.
From this I have adduced that at least two of the crew have made their way to the fly bridge and jointly deployed the life raft. It is a possibility that after deployment, the men have walked the life raft to the stern of the vessel with the intention of utilising the duck board at the stern to enter the life raft. This may be an explanation as to why the painter rope is no longer present on the hard point. It would be necessary after deployment to pull the life raft back to the vessel after the inflation trigger had been activated, and then pull it around to the stern for embarkation.
If this occurred, it would have the effect of leaving one person only on the deck and this person would be required to take hold of the painter rope to assist in pulling the raft closer to the stern of the vessel and at the same time ensuring it did not foul on any sharp projections. As this task would then take the efforts of the three crew, it may also explain why there was no radio call or the activation of the epirb.
Again, if events occurred as I have outlined, it is likely the painter would be re tied close to the stern of the vessel.
The only evidence which can assist in determining the time of the incident comes from two different sources, firstly there is the telephone call to the residence of Mr Kirkpatrick and M/s Beeton. This call was logged by Telstra at 11:23 am on the 9th April 2001. The call was made from the mobile phone registered in the name of Ron Hill. From this it can be inferred that the person making the call, in all probability was Kirkpatrick, as it is unlikely that Giles or Hill would be telephoning Kirkpatrick’s number. Further, it could be assumed that Hill has either given him the phone to call or Kirkpatrick has been in a position to take the phone and use it.
The next piece of evidence is that of Mr Steven Berry, a jeweller, who examined the clock which was recovered from the cabin of the Margaret J. The clock had stopped with it hands indicating 11:33. Tests conducted on a similar clock in controlled circumstances, revealed it stopped in 6 mins and 7 secs after immersion. Applying this to the Margaret J, the cabin of the vessel, and therefore a substantial part of the vessel would have to have been underwater at 11:27 or thereabouts. As the call was 11:23 this would be, when considering the evidence of Mr Berry, after the vessel had sunk or was almost entirely submerged.
It is therefore a strong possibility that the phone was being used by Kirkpatrick to inform his de facto of their difficulties and it could be assume at this time the three of them were in the life raft. Assuming the vessel sank on the day of its departure from Stanley, notwithstanding the lack of forensic evidence placing Kirkpatrick in the life raft, it is logical to assume that Mr Kirkpatrick was in the life raft with the others and was placing the call to his own number in the hope of making contact with M/s Beeton. It is highly unlikely, if Kirkpatrick was making the call, he was still on the Margaret J at that time. It could be inferred that the others did not try to contact their family as Mr Kirkpatrick had been unsuccessful, or it may have been assumed the mobile phone was not operating correctly.
The forensic evidence as presented does not prove that Kirkpatrick was not on board the life raft, and is inconclusive. Two hairs located on the life raft were not from either Hill or Giles.
What evidence is there to suggest that the vessel sank on the day of departure, the 9th April 2001. Firstly, there is the absence of any catch in the vessel, there is the position where the vessel was subsequently located, the foodstuffs recovered. In my view, there is overwhelming evidence that the Margaret J sank on Monday, 9th April 2001, at approximately 11:27am.
5. Reporting of Overdue Vessel
The Margaret J was reported overdue on Friday, 13th April 2001.
Prior to it being reported overdue, the family had become concerned due to its non return on the Thursday, 12th April.
On Wednesday, 11th April, Mrs Hill phoned Donna Beeton, Mr Kirkpatrick’s partner, to enquire if Ron had arrived back at port at Stanley. Donna informed her they had not left until Monday, 9th April, and Mr Hill had indicated if they did not have enough fish they would fish on the Thursday then come back into Stanley and use Kirk’s van to drive back to Ulverstone to sell the fish on Thursday.
On Thursday, 12th April, Mrs. Hill had checked with Donna 3 times and subsequently spoke to Jim Hursey who told her if they had not heard from them by Friday lunch time to get a plane up to look for them.
M/s Beeton spoke with Jim Hursey between 7-7:30pm on Thursday, 12th April 2001. seeking his assistance, however, Mr Hursey told her he was unable to call up the vessel as he did not have the frequency of the radios and had suggested if they had not returned by lunchtime on the following day to get a plane up.
The following day M/s Beeton spoke with Daryl Stafford, who in turn spoke with Mr Adrian Becker to organise a plane.
Mr Becker was contacted by Daryl Stafford between 10:30-11:00am on 13th April and then spoke to AusSAR. He was informed by AusSAR that it was not in their jurisdiction and suggested he contact Tasmania Police.
As the result of a conversation with AusSAR he phoned Tasmania Police and was connected to an Inspector Lindsay. Inspector Lindsay informed Becker he would telephone Daryl Stafford to get the "full picture".
Lindsay telephoned back approximately 1-1½ hours later requesting Becker to collect Stafford and conduct an aerial search from Smithton to Cape Grim and all islands.
At 2:00pm Mr Becker collected Stafford and Miss Beeton, the girlfriend of Kirkpatrick
They flew at 1000 ft with good visibility from 2pm until 6pm. Mr Becker estimated visibility to be greater than 30 kilometres.
The search encompassed the coastline from Smithton to Cape Grim, and all rocky outcrops and islands, including Trefoil Island, Steep Head, South Black Rock, Albatross Island, Bird Island, Stack Island, Penguin Islet, Hunter Island, Three Hummock Island, Walker Island and Robbins Island.
On the 14th April, two (2) aircraft overflew the same area and the search was extended further eastward unsuccessfully.
The search could only be described as extensive and thorough.
Also on the 14th April, the police patrol vessel Van Diemen joined the search. The vessel had been moored at Beauty Point and was ordered to search the areas around the Hunter Island Group, being the area where it was believed the Margaret J had sailed.
The evidence of Constable Gilbert Pearce is relevant as to the information supplied to him at that time.
Constable Pearce stated that he was contacted on Friday 13th April at 9:00 pm as to availability of Patrol Vessel ‘Van Diemen’, and was directed to sail to Three Hummock Island to undertake a search for the Margaret J
At 10:00 am on Saturday 14th April, the Van Diemen departed Low Head and made a direct course for 3 Hummock Island, and sailed 15-18 nautical miles off shore.
The vessel arrived at the Three Hummock Island at 2:30 pm and searched until anchored at 8:30 pm at Woolnorth Point.
The search covered the entire coastline of 3 Hummock Island and Eastern side of Hunter Island.
Again on Sunday, 15th April, from 6:00 am, the vessel was used to search Southwards to Studland Bay and Northward to the western side of Hunter Island and all offshore islands to the West.
According to Pearce,
"Contact was maintained with the Search Base at Devonport and despite extensive enquiries, no further information was available. The only information from the relatives indicated that the vessel Margaret J intended fishing in the Hunter/Three Hummock Island area"
The vessel berthed at Stanley at 17:30 hours and he was satisfied there were no signs of wreckage at that time.
He was subsequently advised later that evening by Constable Archer, the Search Coordinator, that the search had been suspended until "further information was available". This was at approximately 10:30 pm according to his evidence at the inquest.
On Monday morning, 16th April, the vessel sailed back to Beauty Point and a search of the coastline was made at this time, with the vessel travelling offshore at approximately 5 nautical miles.
Constable Pearce expressed concerns as to the lack of information that was supplied to him prior to commencing the search.
He was asked whether he had been supplied with the radio frequencies for the Margaret J but said he had not.
He said during his evidence,
"No, there was no information available to us. There was no information available to us as to what was on the boat, what the boat was configured like, what gear was on the boat, other than its intended destination, and that was Three Hummock Island, Hunter Island area. There was no other information available to us."
On the Sunday whilst he was speaking to Archer, he said "we", and I can only assume he is referring to himself and Archer, "we were still unsure and there was nothing to indicate otherwise that the vessel had in fact left Stanley with a life raft on board. There was nothing to indicate and the enquiries that we were assumed had been made didn’t indicate there was a life raft on board."
Constable Pearce said that "there was some concerns relayed to me via Const Archer that the vessel had in fact left Stanley without a life raft. And that was not confirmed or denied, or wasn’t able to be confirmed." (This seems an anomaly as M/s Beeton knew there was a life raft and it has not been suggested she tried to conceal this and there is the evidence of Hardwicke who had already demonstrated to police an in depth knowledge as to the vessel and its equipment). In any event as the vessel was a fishing vessel it would have to be in survey and it would be obvious that the vessel had to have a life raft. Also, information could have been obtained from MAST as to the vessel, its configuration and the equipment that had been on board at the last survey.
Later in his evidence, Constable Pearce said as to the information he received as to the vessel:
"I had a conversation with Constable Archer as to what we were looking for on the morning of [Saturday] the 14th [April] when we left Beauty Point, and whilst were on route to Stanley, and I asked for specifics with regard to the vessel and the necessary equipment and what it had on board, and details concerning the people. The only information that was available to search coordinators that had been passed to me was as I’ve discussed."
He said he was surprised at the lack of information with which he was supplied.
I express some concerns that this information was not readily available at the time. Almost 24 hours had passed since the vessel was reported missing, there was ample time to compile a report on the vessel, and it would seem from the evidence that significantly more information had been supplied.
A number of times during the Inquest, I expressed concern that full notes were not collated and kept of information received. I note that it was indicated a white board was used, but some of the confused information disseminated from the command centre, to which I will refer later, could have been avoided with the accurate keeping of notes. I would add that I am not suggesting that information was improperly or otherwise withheld from this Inquest, merely that if it had been formally recorded the written notes could have been produced.
6. Overview of Search
The initial search was suspended on the evening of Sunday, 15th April and it is necessary that I consider the prevailing circumstances to determine the appropriateness of the decision.
Firstly, at the time the decision was made, the vessel had been out of contact with shore since the morning of Monday, 9th April. Its last confirmed sighting was as it steamed out of Stanley. There had been no flare sightings, no radio calls, no reports of EPIRB activation, and no debris. The vessel had left port intending to return on the Thursday.
Family had arranged for an air search. An extensive search was undertaken, without success.
At the same time, searches were being undertaken for a missing aircraft which would have passed over the general area, and no vessel in distress was reported at the time.
Search authorities were faced with the dilemma of no splash point, no emergency reports and no concise evidence to suggest where they should look for the vessel, save and except its intended destination. They were unable to estimate a time of any possible emergency due to the absence of radio contact or EPIRB activation.
It is obvious that the searches that had been undertaken on the 13th , 14th and 15th April were extensive and no criticism can be made of the endeavours.
Quite properly, AusSAR was consulted and informed of what searches had been undertaken and this was contained in a facsimile transmission dated the 15th April 2001 and which was sent at 3:57pm. The facsimile did not request that AusSAR take over coordination of the search, but merely requested "assistance …with a search of the greater Bass Strait" , which it was stated was beyond the resource of Tasmania Police.
As a result of this communication AusSAR responded at 7:51pm, after having reviewed the material supplied, indicating they fully supported the actions of Tasmania Police and determined that in the "absence of further intelligence AusSAR did not intend conducting a search of the greater Bass Strait".
As a result of this information it was decided that the search should be suspended, and the known family members of the missing fisherman were invited to attend at Devonport Police Station to be briefed on the state of the search and the reason for suspending the search. Those who did not attend at the Station were visited at their residences by Inspector Lindsay and informed personally.
In my view the search and the reason as to why the search was suspended are unassailable. I stress that I am not utilising hindsight to make this finding, and whilst with hindsight one could say that Flinders Island should have been searched, there was no reason to presume at that time that the vessel had sank, that a life raft had been deployed or anything else to suggest that survivors may have been carried to Flinders Island.
It is appropriate at this point to consider the actions of Tasmania Police and their dealings with AusSAR as to their effectiveness.
Firstly, it cannot be disputed that having undertaken the extensive searches on the 13th, 14th and 15th April, Tasmania Police had exhausted their resources and a search of the Greater Bass Strait was clearly beyond the resources of Tasmania Police.
The protocols which exist within the National Search and Rescue Manual, and as they apply to Tasmania, are that "should an operation which is the responsibility of [Tasmanian] Authority overreach that Authority’s capacity, responsibility will be transferred to, and accepted by, the Commonwealth Authority". This is different to most other States where there is a requirement for negotiations to be had before a transfer of responsibility.
On the 15th April 2002 at 3:57pm Inspector Lindsay, the Search Commander, caused a facsimile transmission to be sent to the Senior Coordinator of Australian Maritime Safety Authority (AMSA) of which Australian Search and Rescue (AusSAR) is an operational unit. From the evidence this facsimile was prepared by Constable Archer, the Search Coordinator or Field Commander and forwarded under the name of Inspector Lindsay.
To fully understand the rationale behind the facsimile it is necessary to consider the telephone calls between Constable Archer and AusSAR.
According to the Police Incident report sheet (Exhibit C90), Constable Archer would have been appointed the Field Commander between 1:44pm and the time he contacted AusSAR at 2:41pm.
On the 13th April 2001 at 2:41pm Constable Archer contacted AusSAR for the first time. He spoke with a Mr Nielson, indicating he was seeking advice, in particular he was asking as to the criteria that had to be satisfied to transfer coordination of the search to AusSAR. Whilst Constable Archer in his evidence was very precise, his manner of presentation on the telephone was far less so, and at times appeared to be almost apologetic, and vague. It was described during the Inquest as being overly deferential to the expertise of AusSAR officers. I do not suggest that AusSAR should not be shown respect, however when one listens to the actual recorded telephone calls the subservience is easily detected.
At this point of time Nielson indicated that AusSAR would not take over coordination until a decent search had been undertaken and that further searching would be beyond the resources of Tasmania.
Officer Nielson extracted particular information from Const. Archer as to the vessel. The information supplied was scant at this time, but understandably so, as Archer would have only been involved for approximately one hour.
I note in his affidavit Constable Archer suggests he was contacted at 11:00am, and this is clearly inaccurate. The vessel was reported missing by Adrian Becker (Exhibit C 53), he had initially telephoned AusSAR and this is recorded by AusSAR as having been received at 11:52am (Exhibit C 85); he was directed to contact Tasmania Police. He did so and spoke with a person, and this is logged at 12:10pm in the Police Command and Control Summary Printout (Exhibit C90). This document confirms that at 12:58pm Constable Archer is the on call Search and Rescue officer and it is obvious he has not been contacted at that time. A further note at 1:44pm indicates Archer was "seen walking his dog a short time ago, and the informant (d12) will "track him down".
In his affidavit Archer appears to suggest that he sought drift patterns at this time, however that is not borne out by the recorded telephone call.
The next recorded telephone call between Constable Archer and AusSAR is at 8:49pm on the 13th April.
At this time, Constable Archer indicates he is seeking advice only. During this conversation he requests AusSAR to provide drift numbers or calculations, or to advise him to "do some special research".
During this conversation he indicated he has spoken to local fisherman, they have indicated that the weather was south westerly or south south westerly and the current had been running for a while. He then adds "the weather and all their gear has been pulled basically north westerly in a line towards Victoria sort of towards Flinders somewhere.
This comment is important for two reasons, firstly, it is clear that if the weather is south westerly the gear would have moved north easterly this would have been towards the Victorian coastline and more importantly Flinders, must be a reference to Flinders Island.
During the Inquest, Mr Jim Hursey was subjected to intensive cross-examination suggesting that he had indicated to police to search King Island. Mr Hursey was emphatic that he would not have made such a suggestion. Noting this comment made by Constable Archer and the reference to Flinders, the fact this information was obtained from local fisherman, it seems highly likely and I so find that Mr Hursey did not indicate that the vessel may have gone to King Island but did, in passing, mention Flinders Island.
These inconsistencies would not have arisen in my view if accurate notes had been kept of conversations and actions undertaken. I will refer to this again in relation to evidence of Mr Hooper.
In respect of the request for a drift pattern, Mr. Adrian Johnson, an AusSAR officer, indicated without a reliable splash point the figures would be meaningless, and I have no hesitation in accepting this statement. At this point in time the vessel could have been anywhere, and without basic information of a last sighting or position, it would be impossible to calculate the effects of wind and current on a vessel.
Obviously at this time Constable Archer has obtained further information. He is now aware that there was an EPIRB on board the vessel, and according to him, there were "old fashioned buoyancy vests" and "all the marine radios and a mobile phone". He indicates he is unaware as to whether there is a life raft, but he will confirm the situation.
Archer has obtained information as to the weather, and from the comment that the winds were about 50 knots, this would appear to have been supplied by Mr Hursey.
The Telephone call is finalised with no request being made for a transfer of coordination.
The next logged telephone call pertinent to my finding is at 3:00pm on the 15th April 2001 between Constable Archer and Paul Threlfall of AusSAR.
Archer commences the conversation indicating that he wishes to "bounce some ideas off" AusSAR and in particular having undertaken all searches and exhausted their resources, under the Charter he wanted to know "how [AusSAR] would be satisfied hypothetically if [Tasmania Police] wanted [AUSSAR] to search the greater area of Bass Strait."
Constable Archer is informed that he needs to speak with the Senior Coordinator, who at that time was Graham Lloyd. He is informed he will need to explain what searches have been undertaken and why he feels there is a chance for the crew, and an offer is made by Threlfall to connect him to Lloyd.
At this suggestion, Constable Archer indicates he is only "bouncing ideas", and says "you guys are the experts, I just thought I would hear you out".
It is suggested that he, Constable Archer, send a facsimile setting out details of what they have done, what they would like to do, what area they have searched, how long they have been searching and what they have been searching with, a plotted history of what they have done and what proposals they have for further searches. He is also requested to include what communication systems the vessel had, the safety equipment on board, weather pattern since the vessel went missing, number of person on board, and any other relevant information.
The call is terminated with an indication that Graham Lloyd will contact Constable Archer.
At 3:20pm, Lloyd telephoned Constable Archer. It is most unfortunate, in my view, the manner in which Lloyd commences the conversation. The opening comment from Lloyd, in response to an affable "how are you going" is met with "I was fine. I’m just looking at this bit of a problem you’re creating here".
Having listened to the recorded telephone conversations, I formed the impression that Constable Archer lacked confidence in his dealings with AusSAR, without being unkind to him, he did not seem to be able to articulate with any precision what he was seeking. During the hearing it was described by one witness that Constable Archer displayed an undue deference to AusSAR Personnel.
His immediate response to Lloyd was "What have I done!".
Lloyd continues in this manner for a short time and it is clear in my view that from this moment in time, Archer is, in colloquial terms, backing off. He is no longer seeking a transfer of coordination, but advice.
Constable Archer’s conversation clearly demonstrates this when he says:
"No. Look. I’m not. I think we’re probably on the wrong wave length, I rang you. I am ringing you for advice because obviously you are the marine search experts. We have conducted our search and we are quite happy to endorse that and we’re starting to wind it down. … So my reason for ringing is to get advice off one of my professional peers who may know more about it. It’s just hypothetical at this stage."
It is obvious from this conversation that Constable Archer has considerably more knowledge about the vessel and its equipment, the prevailing weather conditions, and what searches have been undertaken, than is apparent from the evidence.
It is equally as obvious that Constable Archer was taken by surprise by the approach of Mr Lloyd and does not proceed with what was his obvious intention, of transferring coordination to AusSAR. His intention is clear from his earlier discussion with AusSAR immediately preceding this conversation.
7. Location of the Margaret J
The Margaret J was located on Monday, 16th April 2001 by Geoffrey Brewster at approximately 12:30 pm as he was flying from Devonport to King Island and observed a submerged vessel approximately midway between Stanley and Hunter Island.
At the time, Becker, who was flying in the area, overheard David Brewster reporting he had seen something in water near Robbins Island. He, Brewster, had checked and identified the vessel Becker remained in the area so he would be able to act as a locator for the police vessel that was dispatched to the location.
The vessel arrived at 4:55pm and confirmed the sunken vessel was the Margaret J.
At this time AusSAR is not informed of the location of the vessel. It was explained the reason for this was that Tasmania Police wanted to confirm whether or not there were bodies on the vessel. I find nothing improper with the conduct. If bodies had been found there would have been nothing that could be done by AusSAR in their role as a coordinator of a search.
Having located the vessel, the Van Diemen was tasked to attend at the location with divers for the purposes of searching the submerged vessel.
8. The Dive
Reference was made to the sobriety of divers when they were about to depart Stanley. Having heard the evidence, there is nothing to suggest that any of the divers had consumed alcohol to excess, and certainly in no quantity which would have affected their ability to undertake the dive or perform it with all due diligence.
The dive was undertaken on Monday, 16th April. It comprised 6 individual dives with two divers entering the water on each occasion.
The dives according to the dive sheets were at 8:26am, 9:44am, 10:40am, 11:02am, 1:20pm, and 1:55pm.
The first dive was undertaken by Sergeant Pratt and Constable Bidgood and it was their intention to video record the dive and to obtain evidence as to the crew.
At this point, I should make it clear that it is my view that any coronial scene, is a potential crime scene and should be treated accordingly. Police are tasked to undertake these investigations on behalf of the Coroner’s Office. It is important that all evidence is gathered so the Coroner is in a position to review the evidence to make proper finding in the event that a finding is required to be made pursuant to the provisions of the Coroners Act.
The video tape was produced at the Inquest, and it was extremely disappointing to discover that several copies had been made of the tape, and it was only after a number of demands were made by me during the Inquest that the original video was produced.
It is important to remind police that the Coroner expects to receive the originals of evidence collected and certainly it is the original which should be tendered at the hearing. I found the role of Tasmania Police in this particular aspect to be unprofessional. It led to concerns that the best evidence was not being produced at the Inquest, and when coupled with the adverse media reports prior to the hearing, it could have caused members of the public to form a view which was not an accurate one.
Reference was made during the hearing as to the lack of equipment for the dive and the need to hire equipment. I do not find that this criticism was justified. The cost of maintaining equipment is never an easy task even with a budget of 126 million dollars. There must always be prioritisation and I have no doubt that video equipment to be used to video tape crime scenes would be at a lower priority. Equipment can be hired and was hired and I have no doubt at a much lesser cost to the community, than the provision of video equipment, which would be used infrequently.
I do have concerns as to the manner in which the first dive was undertaken and the benefit of video equipment in the manner it was used.
The video recording is confined to the hull of the vessel and the main deck, and the area of sea bottom adjacent to the hull. The video depicted the interior of the wheelhouse. There was no video of the fly deck, the generator, or the life raft cradle. The explanation as to why this was not done, I find unconvincing . Whilst I accept there was a considerable quantity of nets and ropes floating around the vessel, it would not, in my view, have prevented video taping the fly bridge area from a safe distance, and utilising the zoom feature on the camera.
Most of the divers indicated they were aware of the significance of a painter rope.
From the evidence at the inquest it would be assumed that police officers would be aware as to the practice of tying the raft to a hard point. If they did check for the rope, I cannot understand why they were unable to video tape the same area.
I accept that it would have been dangerous for divers to enter into the vessel, but this would not prevent a thorough examination to be undertaken of the fly bridge area, particularly after the vessel has been righted and immediately prior to the attempted salvage.
From the initial reports it was indicated that the life raft was missing as was the generator, and it was presumed that the generator had dislodged the raft. If the fly bridge area had been filmed and persons aware of the vessel had been given the opportunity to view the tape I have no doubt this could have been clarified and the supposition discounted.
My impression from viewing the tape was the search was confined to looking for bodies and not directed to the possibility that persons may have abandoned ship and entered a life raft.
I draw this inference from the lack of information which appeared to have been supplied to those involved. In this regard I refer to the evidence of Constable Gil Pearce.
Other concerns arise in respect to the information which the divers had at this time.
Constable Pearce said he was surprised at the lack of information with which he was supplied.
The Van Diemen left Stanley on 17th April at about 8:00am, arrived over the Margaret J at 8:30 -8:45am and divers commenced at 9:00 am
Instructions were to inspect vessel and look for bodies, and having viewed the tape recording that is all that appears to have been done. Little time appears to have been spent on examining the life raft cradle or the top deck or fly bridge of the vessel, as the divers were unable to locate the generator bolted to the deck.
Constable Pearce indicated the first dive was an examination of the vessel, the surrounding area and further, whilst the first dive was being undertaken the divers attached heavy tow lines to the vessel to enable the vessel to be rolled back into an upright position.
Constable Pearce said he was informed of the condition of the vessel, and in particular, there were no bodies, there was a vast amount of fishing gear, ropes, buoys, netting, a huge amount of nylon netting entangled around the work area of the boat.
In response to a question from myself he said, they would have acted differently if they were aware that a life raft had been on board the vessel, saying
"Well we would then most certainly have been sure that we were in fact looking for a life raft. We would have most certainly had, had the information been made available to us that the raft was in situ in its rightful place when it left Stanley, and that it was tethered in the normal manner, then most certainly that evidence would have been available to the divers later. And we would have then assumed that yes the life raft was in fact on board when it left Stanley and therefore there was every indication that there possibly may have been people on board that life raft"
He later said that on the afternoon of the 17th April he was still requesting information as to whether or not there had been a life raft on the vessel when it left Stanley.
It is difficult to understand why they were not made so aware as the police had every opportunity of obtaining the information. If the evidence of Hardwicke (who says he provided a full account to Police of what equipment was on board the Margaret J at Stanley on Sunday 15th April) and M/s Beeton is accepted, and, there is no reason to doubt it, then the police had been so informed. In any event, by this date, information could have been sought and obtained from MAST, or a number of other witnesses, for example Mr Hooper who had made endeavours to contact police.
On Monday 16th April, Reginald Moore, who had personal knowledge of the vessel and was a skipper of the Royal Volunteer Coastal Patrol rescue vessel "Girralong" left Ulverstone at 7:00am and returned at 9:00pm, was searching for life raft or debris, being aware of the life raft on board. I have no doubt that if there had been contact with the Royal Volunteer Coastal Patrol, Mr Moore could have confirmed the presence of a life raft.
Mr Hooper who had undertaken the survey of the life raft contacted police on the Monday, 16th April and asked them to check for a life raft. Obviously someone noted this information together with Mr Hooper’s phone number, as he was contacted on the following day. On Tuesday the 17th he was phoned by police and asked information as to the life raft and at a later time, on the same day, he was phoned by another officer who sought the same information. Clearly Tasmania Police must have been aware as to the life raft, why was the information not conveyed to the divers?
Subsequent to these conversations Mr Hooper received a further call indicating that the life raft was missing. He had informed the police they should be searching for a life raft, but felt he was not being listened to and decided to seek the assistance of the Advocate to make the police give attention to his concerns.
It is of concern that a member of the public has attempted to supply information to police and feels that it is necessary to resort to the press for assistance.
The absence of written records makes it difficult to make definitive findings, but I would strongly recommend that this particular incident be investigated to ensure that no such failing occurs in the future which may lead to or contribute to a death.
I will, later in my findings, refer to other concerns I have as to, what I perceive to be, a failure to accurately record information.
It is clear and I so find that Mr Hooper supplied full information to police of the life raft on the 16th and 17th of April 2001.
9. Attempted Salvage of Margaret J
Another concern I have was the attempted salvage of the vessel.
It was evident from the evidence that the police divers were not sufficiently skilled in the requirements of salvage. There was indication that the lifting bags obtained and used were insufficient for the weight of the vessel. It was only later in the evidence it was adduced that the Margaret J had been towed for a distance by the police vessel, Van Diemen, and the decks of the Margaret J had broached the surface. There appeared to be a reluctance on behalf of some officers to give this evidence.
There is no dispute that the attempted salvage was a failure and it is possible that some damage sustained to the Margaret J was caused by the attempt.
I raise the question, that as the weather conditions were such to enable the divers to enter the water several times, it is possible that if a professional salvager had been engaged at this time, the vessel may have been brought into harbour and a full inspection of the vessel could have been undertaken by the police at that time. The divers could have assisted the salvager.
If this course had been adopted it may well have expedited the involvement of AusSAR and the subsequent search of Flinders Island may have occurred at an earlier date.
10. Suspension of Search on 17th April 2001
On the 17th April 2001, Tasmania Police again, after consultation with AusSAR personnel, suspended the search for the crew of the Margaret J.
It is clear that at this stage of the operation responsibility for the search remained with Tasmania Police.
I am also satisfied that at or about the 17th April 2001, the life raft from the Margaret J had already beached on Prime Seal Island. I make this finding on the basis of the evidence of Mr Boyle.
I am also satisfied that Tasmania Police had not effected a search of the northern islands of the Furneaux Group, and certainly no searches had been made of Seal Island.
Apart from the telephone conversations between Tasmania Police and AusSAR personnel, immediately preceding the suspension of the search, a facsimile transmission was forwarded to AusSAR under the name of Inspector Lindsay (Exhibit C76).
I refer to this facsimile as it highlights some of the concerns I have raised in these findings.
The second paragraph of the facsimile reads as follows:
"An enquiry made with the only witness who last saw the vessel leaving the Port of Stanley indicate that the life raft was attached to the roof of the wheelhouse. The witness has now stated that the dingy on the wheelhouse was not covering the liferaft. We have been contacted by a person who surveyed the raft three months ago. No other details are available about the matter. Information about the EPIRB is that it is believed that the vessel did carry one, however that fact can’t be substantiated or expanded upon."
Some observations as to these statements are warranted.
Firstly, Mr Hooper carried out the survey of the life raft from the Margaret J on the 7th March 2001, only one month not 3 months before , and having heard Mr Hooper give his evidence I have no doubt that he could have, if requested, supplied full information as to the life raft. Yet the facsimile indicates that "no other details are available". Further, notwithstanding this incident occurred over the Easter vacation, I have no doubt a representative of MAST could have been contacted and a copy of the Survey (Exhibit C65) made available. MAST could also have supplied a copy of the Survey Record Book of the vessel (Exhibit C118) which was produced by Mr Alway at the hearing, and this document would have provided full information as to the vessel and the life raft.
The facsimile confirms that Mr Hooper had contacted Tasmania Police and I have made observations elsewhere in this finding as to his attempts to inform Tasmania Police as to his knowledge of the life raft, so I do not repeat them here.
The survey report in relation to the Margaret J would also have provided the information as to the EPIRB, and life raft.
I note here, on the evidence before this Inquest, that as at the 30th April 2001, Tasmania Police were still not in possession of the Survey Report, nor had Mr Hooper been requested to supply information as to his survey, nor had he been requested to supply any information as to the life raft. This is evidenced by Constable Archer in a telephone conversation with an officer of AusSAR on the 30th April 2001.
The facsimile did not contain any request that AusSAR take over responsibility for the search.
The response from AusSAR supplied drift patterns for a life raft together with an explanatory text. It concludes:
"These drift plans are based on:
* the possibility that the three men were able to get into the life raft on Monday 9th April and have been drifting ever since;
* that sea current that might have influenced their drift is averaged at 1.5 knots
* that a drogue was deployed or it wasn’t
The initial result is a minimum search area of some 50,000 square nautical miles and most likely larger. Pleasenote the squared off area as depicted on the fax copy of the chart.
You should note that with the information available to us it is not possible to decide which of our assumptions are correct. What we do know is that it would not be possible to search an area of this size because we could not get enough search aircraft to cover the minimum area in one day. Typically it would take over 100 aircraft (with track spacing of one nautical mile), each doing a four hour sortie and if this was not achieved it would take even more aircraft each subsequent day because the search area will continue to grow with the extra drift time.
AusSAR. recommends that without some specific new information to indicate that the missing men are actually in the life raft or some information about the location of the life raft that it is not possible to mount a realistic search effort."
Following this response Tasmania Police suspended the search.
Between the date of suspension until the date of salvage of the vessel on the 30th April 2001, no further "information to indicate that the missing men [were] actually in the life raft [nor] some information about the location of the life raft" was forthcoming.
The salvage of the vessel did produce information as to the presence of a painter rope, evidence of a portable bilge pump being used, and the state of the engine controls.
None of these strengthened the possibility that the crew had entered the life raft.
It had already been determined that the life raft was missing, and the correspondence from Tasmania Police to AusSAR dated the 17th April 2001 discloses that the "[t]hree missing crew were not located. The vessel is …on the bottom, its hull and wheelhouse are undamaged. The wheelhouse door and front hatch were discovered open. Both tenders are present, the one on the rear deck has sustained damage. The life raft and EPIRB could not be located."
The only substantial difference in relation to the circumstances on the 17th April 2001 and the 30th April 2001 is the increased media attention, the actual transfer of responsibility to AusSAR.
At this time AusSAR reviews the searches undertaken by Tasmania Police and determine that the uninhabited islands around Flinders Island should be searched. I infer from the recorded telephone conversations that a decision had been reached that they had not be searched to that time.
This assumption is supported by the facsimile forwarded by Acting Inspector Hopkins on the 1st May 2001, which sets out the details of searches since the location of the Margaret J on the 17th April. In particular, Flinders Island and its surrounding island is not mentioned and it corroborates the evidence of Sergeant Stanwix of Flinders Island, that he was not tasked to search the islands but was told to arrange a KALF (keep a lookout for the vessel). I can only infer that Acting Inspector Hopkins would have reviewed all the available intelligence which had been collated at that time, before communicating it to AusSAR.
Had AusSAR been placed in the position of being responsible for the search on the 17th April 2001, I believe they would have carried out the same review of the search as was performed by Mr Alan Lloyd on the 30th April 2001 and would have coordinated a search of the uninhabited islands in Bass Strait, which may have led to an earlier retrieval of the life raft.
It is regretful that AusSAR did not give closer consideration to the situation as at the 17th April and offered to undertake a review of the search at this time.
11. Salvaging of the Margaret J
The Margaret J was salvaged by Mr Jim Hursey and his Company on the 30th April 2002.
Police did not attend at the time, and it is my view, that it would have been desirable that police had attended.
As I have indicated, a coronial scene is no different to any other crime scene, and should be treated accordingly. Had Police been present it is unlikely issue as to the painter rope, to which I will refer later in my findings, would have arisen.
Police did not attend until after the vessel had been refloated and brought into Stanley, and had already been placed on a trailer for transportation.
In marine matters, there needs to be greater involvement by police in all facets of the recovery as well as the location of the vessel.
12. The Painter Rope
Much questioning arose as to the location of the painter rope by the successful salvagers of the Margaret J.
The issue took on much greater importance than it was due as a result of the failure to produce the original video taped recording of the dives undertaken by police.
It was suggested by Mr Miller, Counsel for Tasmania Police that a member of the Hursey family or one of the persons present at the time of the salvage had deliberately planted the painter rope on a cleat at the stern of the vessel.
I must say, I was somewhat surprised by the antagonistic manner adopted by Mr Miller in relation to this evidence. It was not until the original tape was produced by Tasmania Police that it could be seen that no painter rope or anything else wound around or tied to a cleat where it was allegedly found.
The first question to my mind was, what motivation would such person have to plant the painter rope.
Perhaps as was impliedly suggested by Mr Miller it was to have the search re-activated. I find this tenuous to say the least. The salvaging of the vessel produced clear evidence that the generator which reportedly had been torn from the vessel was still in place and bolted to the flydeck. There was evidence of a portable bilge pump being connected by alligator clips to the batteries and which one could presume had been operating at the time of the sinking of the vessel. The life raft was missing and obviously not knocked over board by the generator as previously indicated by the divers to Constable Archer.
There were a number of reasons why the search could have been reactivated without the planting of a painter rope.
A logical consideration of the evidence about the painter rope, provides a number of possibilities.
Firstly and for this purpose I will refer it to hindsight, as it will assist in giving proper consideration to this matter.
There is no doubt that the life raft was in fact launched, equally there was no doubt there was a painter rope attached to the life raft so launched. At the time of locating the life raft, the painter rope was not attached to it, it could only be removed by being undone manually or by cutting.
If the painter rope was not held firmly at the time of launching, the life raft would be likely to be blown away by wind after it had inflated. Clearly it would need to be held or at least tied to the vessel to ensure that it was not lost to the elements.
The painter rope, it could be assumed, has been cut from the life raft, it being unlikely that one of the crew members having survived the sinking of the vessel would attempt to calmly untie a knot which would seem it was tied securely so it was not to come undone.
If it was cut from the life raft one would assume the purposes for this would be to release the life raft and further, that the severed piece would fall back towards the vessel as the life raft moved away from it. It could be assumed as it is unlikely the life raft would have been deployed from the front of the vessel that the rope once cut would fall towards the rear of the vessel. It is clear from the evidence that there was a considerable quantity of nets and ropes on the vessel, and in fact a large number of them can be seen in the clear video eventually tendered, that these were towards the rear of the vessel.
It would not be an unlikely scenario that the painter rope could have become entangled in the nets or other ropes, depending upon how the painter rope was fixed to the vessel. Assuming it was not manually held by merely wrapping it around some metal piping to hold it, it may not have been securely tied and it may have become loose and drifted away from it’s original fixed point. When located it was stated that the rope was not securely tied to the cleat and I formed the impression it was looped around the cleat which was at the stern of the vessel. .
There are a number of ways in which it could have come to be located on this cleat.
Firstly a number of divers had dived on the vessel after the original video tape recording was made of the vessel. There is evidence that one diver became trapped or entangled in rope and had to be cut free. It is not beyond the realms of possibility that divers may have dislodged ropes, have moved ropes at or about the time of the attempted salvage. I can assume that in fitting the lift bags, ropes and netting would have to be moved, and where those items ended up would not be of a great concern of the divers at that particular moment. The mere presence of divers may have caused a rope to be disturbed and to drift onto the cleat and subsequent tidal movement or undersea current could cause it to loop back around itself and the cleat. Of course, another possibility is that the rope became entangled after the attempted salvage. There is evidence the vessel was towed for a considerable distance and at such a speed that the Margaret J broached the surface. I have no doubt this would have caused the ropes and netting to drift out behind the vessel as it was being towed and once the vessel broke free it would drop quickly to the ocean floor and the netting and ropes would have drifted down back over the vessel and be subjected to underwater currents.
I am not satisfied, having heard the evidence, that any of the Hursey family or any of the crew present at the time of the salvage deliberately planted the painter rope as was suggested by Mr. Miller.
13. Re-activation of the Search and transfer of coordination to AusSAR
Following the recovery of the vessel and its repatriation to Stanley, it became clear that the generator had not been ripped from the vessel but was still in its location, bolted to the deck of the Margaret J, the life raft was missing, some items had been removed from the vessel, the painter rope indicated a launching of the life raft, a portable bilge pump had been connected to a battery, indicating that the crew must have had some time in considering their position, and the sinking may not have been as cataclysmic had been previously assumed.
All of the information should have been available from the inspection of the vessel by the divers, save and except the location of the painter rope.
According to the evidence, it was presumed that survivors had made it into the life raft, but as the search area was too great, the search was not reactivated.
On Monday, 30th April 2001, at 4:16 pm AusSAR took over coordination of the search and a Mr Alan Lloyd having reviewed the evidence, determined that a search would be undertaken of the uninhabited islands of the Furneaux Group and littoral search of the Northern Tasmanian coastline.
In this regard, I note the telephone conversation between Steve Francis of AusSAR and Jenny Hill, the daughter of Mr Hill, at 3:37pm on the 1st May 2001, which could only have occurred after AusSAR have reviewed what searches had been undertaken by Tasmania Police, and he indicates that it was AusSAR’s understanding that police had not searched Flinders Island. This accords with the evidence of Sergeant Stanwix of Flinders Island, who stated he had not been requested to search Flinders Island. The absence of recorded messages does not enable me to make a positive finding as to the accuracy of the statements.
What is particularly relevant, having been supplied with information as to what searches had been undertaken by Tasmania Police, AusSAR coordinates a search of uninhabited island in the Furneaux Group of Islands and shortly afterwards, less than 48 hours, and the life raft and the first body are located.
On Wednesday, 2nd May 2001 at 9:40 am, an observer located what appeared to be a life raft on beach on the Eastern side of Prime Seal Island, and West of Flinders Island.
14. Findings of Pathologist and Professor James Robertson
Evidence from the two Forensic Pathologists, Dr Kelsall and Dr Collins disclose they are both of a similar view.
The cause of death could not be ascertained, due to the time elapse between death and location of the bodies.
They agreed that both could have died at about the same time.
Dr Kelsall was of the view that Mr Hill had died earlier in time than Mr Giles and he approximated the death of Mr Hill as between the 9th – 16th April 2001 and that of Mr Giles between the 16th – 27th April 2001.
The evidence of Professor Robertson clearly establishes that the hair located on the raft was from decaying bodies, and I find that at a point of time the bodies of Mr Hill and Mr Giles lay in the life raft and that life was extinct.
I have already referred to the other hair that was located and could not be identified as coming from Mr Hill or Mr Giles.
Whilst it could have come from one of those who handled the life raft after it was located, or from off the beach itself, it could also have come from Mr Kirkpatrick, the evidence not necessarily excluding this possibility.
15. Findings on the available evidence
I am satisfied on the evidence that at the time of the sinking, the three crew were able to deploy the life raft and all 3 entered the life raft at that time.
The evidence of the rations on the life raft being used, the use of the light stick clearly demonstrates that some of the crew boarded the life raft and were alive for a period of time. The forensic evidence of Prof. Robertson establishes that Hill and Giles died whilst in the life raft.
The next matter to be considered is the circumstances surrounding the sinking.
Beginning with the finding I have made that the vessel sank on the 9th April 2001, and within 1½ hours of leaving port, it is possible to consider the prevailing weather conditions at the time to determine their influence, if any, on this tragedy.
There is the evidence of Donna Beeton that the weather had not been ideal, and this is discernible from the statement that Ron had gone to the Green Hills to check the weather. She said that Kirpatrick was not concerned about the weather immediately prior to leaving port, but later qualified this in her evidence, when she said he had thought it "might be a bit rough".
There is the evidence of Mr Hardy, a professional fisherman of 60 years, whom would have to be considered one of the local authorities on the weather patterns of Bass Strait. He indicated that it was the intention of his son to take his 30 foot fishing vessel to sea on the 9th April 2001 but decided against it, and went out the following day. He described the Monday as ,
"it wasn’t a real nice day, but it’s not such a day that a good vessel would worry it in any way whatsoever, you’d go fishing in that sort of weather if your vessel was sound and good and everything."
I can only assume that his son’s vessel was sound and that the weather was not particularly encouraging for going to sea.
The weather on Monday, 9th April 2001 was summarised by Mr Marsh in his report (Exhibit C48) as follows:
"On departure from Stanley at 9am local time on 9th April the wind once clear of the sheltering effect of the Nut would have been west to northwest averaging 20-25 knots and increasing. A fairly weak cold front ( weak in terms of amount of rainfall and temperature change ) would have passed through the Stanley area about 1:30-2:00pm on that day with wind then shifting from west to northwest at 30-35 knots (in well-exposed water) to west to southwest at about 30 knots. Close to Walker Island (and, indeed, immediately to the east of any of the islands in that area) the wind speed would probably have been reduced to some extent by friction of the upwind land mass. Cold fronts are typically oriented NW/SE so the fronts’ passage through, say, the Walker Island area would probably have been at about the same time as through Stanley. The air temperature would probably not have fallen below 15 degrees Celsius. Sea temperature was about 17 Celsius. Sea temperatures tend to be at there highest for the year around late-February/early-March and are still relatively high (by Tasmanian standards) well into April."
An examination of this weather pattern may well explain why Mr Hardy’s son was not prepared to put to sea at this particular time.
It is possible that having left port, Mr Hill became aware of the approaching weather, and had decided to return to port. I can only assume that this would have been the first occasion that Mr Hill had put to sea in such weather conditions since he had completed his modifications. Perhaps, due to the increased weight on the vessel, there was greater loss of freeboard than he had expected. He may well have turned the vessel with the intention of returning which would mean that the weather was approaching from his stern. It is likely, that this action would have exposed the stern to flooding, particularly due to the limited freeing ports, to which I have referred earlier. The effect of the weather is referred to by Stafford who stated that within a short period of time as he was following the Margaret J from Stanley, the waves had increased in intensity to be breaking over the bridge of his vessel
Initially the amount of water coming on deck may not have been of such a quantity as to cause concern to the crew. Considering the design of the electrical installation and the use of the conduit or channel to carry the wires, water may have been flooding through the engine compartment causing the engines to cut out. This would lead to a loss of the bilge pumps. This would necessitate the use of bilge pumps being connected directly to the batteries in an endeavour to stem the flooding. This would further necessitate the removal of at least one of the engine covers to enable to utilisation of the batteries. This would have the effect of permitting water to flow into the engine compartment, but if it was already flooding the only manner of restarting the engines would be to clear the compartment of water. It is a possibility that the confluence of these waters has led to the vessel quickly flooding from the stern. This would have the effect of making access to the cabin difficult and may explain the failure to put out a mayday or to collect the EPIRDs. It is likely that two of the crew would have been engaged in deploying the life raft, perhaps with the assistance of the third member.
Whilst I acknowledge that much of this is speculation, it would seem logical in that it gives an explanation to the various pieces of evidence adduced at the Inquest.
It is equally clear that upon entering the life raft the crew would have become wet and therefore the strong possibility of contracting hypothermia.
It is a strong possibility at this time that Mr Kirkpatrick attempted to contact his residence by telephone, but due to the waves and the location of the life raft the signal would have only been weak and would explain its short duration.
Assuming all three of the crew made it into the life raft further difficulties faced them. From the evidence of Mr Boyle, three persons in a 10 man life raft can create further hazards for those on board. There is less stability and a greater risk of being thrown around the interior of the life raft, and receiving injuries.
Other difficulties would have been the weather, and I again refer to the report of Mr Marsh when he described the conditions for the Tuesday and Wednesday. He said
"Southwest winds eased markedly early on the 10th - then tended northwesterly later in the day and picked up again that night ahead of a very marked strong, cold south-westerly change about daybreak on the 11th. In terms of "chill factor" (apparent temperature as registered by exposed skin) conditions at Point 1 (near Robbins Island) on the 11th would have been the most severe of the whole 23-day period (42 knot average wind speed, temperature 10 degrees Celsius and rain showers).
Whilst I acknowledge that these conditions relate to the vicinity of Robbins Island, there is clear evidence from other fisherman who gave evidence that the conditions on Wednesday, 11th April were nothing short of atrocious, and this extended over much of Bass Strait.
It must be acknowledged that the crew, already wet by the time they entered the life raft would have faced extreme deprivation, notwithstanding the provisions and rations on board the raft, and have been at the mercy of the elements. It is likely from the evidence adduced that the life raft on at least one occasion was subjected to being overturned by the wind. This would have caused the crew to suffer further conditions conducive to hypothermia.
The effects of hypothermia are well documented, it is a condition in which the temperature of the human body falls below the normal level of 98.6ºF (37ºC).
The heart rate and blood pressure decrease during mild to moderate hypothermia – 95º to 82ºF (35º to 28ºC). Breathing is slower and shallower. From 86º to 82ºF (30º to 28ºC), the victim becomes unconscious. During deep hypothermia i.e 64º to 59ºF (18º to 15ºC) the action of the heart, the flow of blood, and the electrical activity of the brain stop completely.
The Mayo Foundation for Medical Education and Research has produced a chart as to a correlation between water temperature, consciousness times , and survival times. Of course factors can influence the times, for example the health of the person and the type of clothing being worn.
|Water temperature||Time until exhaustion or unconsciousness||Expected time of survival in the water|
|32.5 F||Less than 15 minutes||Less than 15 to 45 minutes|
|32.5 to 40 F||15 to 30 minutes||30 to 90 minutes|
|40 to 50 F||30 to 60 minutes||1 to 3 hours|
|50 to 60 F||1 to 2 hours||1 to 6 hours|
|60 to 70 F||2 to 7 hours||2 to 40 hours|
|70 to 80 F||3 to 12 hours||3 hours to indefinite|
|More than 80 F||Indefinite||Indefinite|
As indicated the water temperature on the Wednesday, 11th April was 10.5ºC, or 50.9ºF, giving a survival time of 1 to 6 hours.
It could not be discounted that when the raft was overturned that a crew member may have been jettisoned from it, or perhaps left the raft with the intention of trying to right it. If this was such a scenario, it is likely, considering the ages and health of the crew, that it may have been Mr Kirkpatrick who undertook this course and may not have been able to re-enter the raft and was lost. This would be consistent with his body not being found in close proximity to the others. It would also be consistent with the absence of decaying hair, as was found, which belonged to Mr Hill or Mr Giles
There is, of course, the two hairs that were located in the life raft, which DNA tests discounted as coming from either Mr Hill or Mr Giles, to which I referred earlier in these findings.
I have referred to the effects of hypothermia and the water temperature at the time of the sinking and the ensuing days, to the unused provisions located on the life raft and the unused flares.
I find that having entered the life raft the crew were exhausted by the efforts in abandoning the Margaret J, they suffered immersion in water, and would have suffered from hypothermia. Their condition would have been exacerbated by the weather on the 11th April 2001. This would be indicative of why flares were unused, and why all the provisions had not been exhausted, and in particular, the water.
I find on the balance of probabilities, that at this time Mr Kirkpatrick was lost overboard from the raft and would have died at about this time.
I an further satisfied on the balance of probabilities that Mr Hill and Mr Giles would have died a short time later, whilst still remaining with the raft.
I find that the three crew of the Margaret J, Ronald Clement Hill, Kimm Ronald Giles and Robert Clyde Kirkpatrick died on or about the 11th April 2001.
I am satisfied that at the time the matter was first reported to police (13th April 2001), the crew of the Margaret J had perished.
It therefore follows that a search of the waters to the east of what was subsequently identified as the splash point would not have saved the lives of the three (3) men.
I further find that it would not have been reasonable to expect that a search should have been undertaken further to the east in the initial stages of the search due to the lack of communication from the vessel and the absence of a splash point.
To suggest that a large number of planes should have been launched to search for a vessel which may or may not have sunk, for a life raft which may or may not have been launched, would have been placing the lives of a number of searchers at risk. Such a risk in the overall circumstances was not warranted.
Had regular communication been kept by Mr Hill with local radio stations, the time frame could have been reduced and an informed decision could have been made as to a splash point.
Unless a person at sea keeps in contact with the shore on a regular basis the chances of rescue must be dramatically reduced.
Before proceeding to make recommendations, there are some matters to which I should refer as they have been relevant to my findings or the conduct of the Inquest.
16. Evidence of Maurice Fowler
I feel it is incumbent upon me to refer to the evidence of Constable Fowler.
It should be remembered that a Coronial inquest is an inquiry and the Coroner has the duty to investigate those matters referred to in the provisions of the Coroners Act. The legislature has seen the need for these inquests to be as open as possible and to achieve this have taken away the rights of a person to refuse to answer questions but in doing so has provided protection for those giving evidence (Section 54) where by statements and disclosures made by a witness are not admissible in evidence in any other proceedings save and except in relation to a charge of perjury.
It is my view, that the legislature has adopted this course to encourage people to come forward and give assistance to the Coroner. It is vitally important when the Coroner is performing that part of his duty pursuant to Section 28 sub section 2, for people to come forward in the expectation that they will be permitted to express their view when it is relevant.
Section 28 sub section 2 provides:
(2) A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.
Any attempt to stifle comments should be discouraged, and in my view, a personal attack on a witness, who wishes to state an opinion, it is not only improper, it is undesirable and should be positively discouraged.
It is my view there was an attempt to discredit the officer and I wish to commend him for his courage of putting forward those matters that he did.
Whilst I am satisfied some issues raised by him were misinformed, they were matters that he had taken on board and he believed were relevant to the findings at the Inquest. I did not view them as being an attack on the Police or its management, and unless such issues are raised openly, they cannot be responded to and were appropriately dispelled by reasoned factual responses.
Constable Fowler in his evidence did suggest a forward command post should have been set up at Stanley to obtain information from locals. I do note that this was in fact supported by the evidence of Acting Inspector Hopkins who gave evidence subsequent to Fowler. Such a suggestion, would appear to have considerable merit in some cases, as by having people readily available at a local area all evidence can be collated. It is trite to say that most people like to have a personal approach as opposed to a telephone conversation, and many will not make a call but are content to sit and provide that information in more relaxed surroundings. I note that Acting Inspector Hopkins had already found posts invaluable in the past.
17. Involvement of Media
It is appropriate that I refer to the involvement of reporters with the Four Corners television program.
I have stressed that coronial scenes should be treated as crime scenes.
In my view, it was totally inappropriate for evidence to be removed from the scene and from the State by members of the Press.
There is no doubt, in my mind, that those media representatives present were fully aware of the significance of the find, and from their experience and qualifications, should have taken such steps as to secure the items. This could have been done in a number of ways. They had a helicopter pilot with them, who could have communicated with Tasmania Police advising them of the find and await instructions from the police as to what they should do. If the evidence was at risk of being lost through tidal movement, the position of finding, could have been marked by reference to the shore above high water mark and then the police could have been notified. If it was necessary to remove the evidence it should have been delivered to police at Flinders Island. If this was not possible, as the media crew remained in Launceston overnight, they could and should have taken it to Launceston Police Headquarters. No contact was made with police at all, which in my view is a clear indication that the item was being taken knowing full well it should not be removed and did not want to run the risk of losing what the crew saw as a newsworthy item.
18. Inaccuracy of reporting and lack of documentation
One matter of concern that arises from this inquest is the inaccuracy in the reporting of matters and the lack of documentation to assist in determining where these errors arose.
An example of this arises on the 15th of April 2001 at 3.20pm when Constable Archer states he was aware that the generator was bolted to the top of the wheel house of the Margaret J and in a conversation with Mr. Graham Lloyd, Constable Archer suggests, and I quote "his fishing peers are candidly saying it was a very top heavy vessel".
A review of the evidence does not support that Mr. Hill’s fishing peers were saying it was a very top heavy vessel.
More importantly, however, when Graham Lloyd speaks to John Young, the Manager of Operations of AusSAR, the version changes to the generator being, and I quote, "lashed down" and "the opinion is from all the mariners from around the place there that it was completely unstable and probably shouldn’t have been going out anywhere".
This clearly demonstrates how the facts have dramatically changed in a very short period of time.
There is a need to ensure that information received is accurately recorded and should not be subjected to embellishment.
Another example of these inaccuracies is that on the 17th of April 2001 at 12.38pm Constable Archer phoned AusSAR at which time he spoke with a Mr. Kinnane and Mr. Willey, and indicated that the life raft had not been located on the vessel by divers and was seeking drift patterns for the life raft. He also suggested, that word from the divers, was that the dinghy on the wheel house was missing, together with the life raft. Quite clearly this was inaccurate, the video tape clearly shows both dingies still with the vessel. Either Constable Archer had incorrectly recorded information from the divers or, and I find it unlikely, the divers have completely overlooked the 2 dingies still being connected by ropes to the Margaret J.
A further matter of concern, arises from the evidence of Constable Pearce, when he expressed concern as to the message that was being broadcast to other craft as to keeping a lookout for the Margaret J.
It was the opinion of Constable Pearce that the message should have been upgraded.
A debriefing took place after the completion of the incident and this was undertaken with Inspector H Timmerman chairing the debriefing.
During the debrief, Constable Archer indicated that he had upgraded the message being broadcast, but was unable at that time to supply information as to when it had been so upgraded.
This is in contrast to other evidence before me.
In the evidence tendered by AusSAR there is the recording of a telephone conversation between Mr Threlfall of AusSAR and a person from Melbourne Radio. This telephone call was initiated by Melbourne Radio in response to a request received by them from AusSAR to broadcast a message in relation to the Margaret J.
The text of the message is as follows:
"No, we were thinking, yeah, because we couldn’t understand why it wasn’t upgraded before. And you see we were thinking maybe they knew what had happened, and maybe someone had stolen the boat and, you know, just dumped it somewhere and nicked ashore somewhere you see."
The conversation continues:
"so we were assuming that it was that, we rung them up a few times and said why don’t you upgrade it then, you know, and they said Ah no, it’s alright we are under control"
This is not consistent with the statement made by Constable Archer during the debrief.
A further concern was the lack of obtaining of information.
After the Margaret J was located and it had been dived on, it would seem that the authorities assumed the life raft had been deployed, yet it would seem that no steps were taken to obtain information as to the colour of the life raft. The absence of the information confirms, in my view, that no upgrading of the message to Melbourne Radio was done, as I would assume the only logical upgrading would be to keep a lookout for an orange and black 10 man life raft.
The failure to collect this vital information is further confirmed by the recorded telephone messages, when AusSAR, after having taken over coordination is attempting to obtain information from Constable Archer as to its colour. On the 1st May 2001, Constable Archer indicates he has a colleague trying to obtain this information. This is 14 days after the dive, and after it was assumed the survivors may have entered the life raft.
I can only express surprise that enquiries were not made immediately after the life raft was found to be missing, or on any of those occasions when Mr Hooper telephoned police assaying he had undertaken the survey of the life raft before the dive was undertaken.
The absence of recorded information makes it difficult if not impossible for this Inquest to make a determination as to why such rudimentary enquiry was overlooked, or for that matter, if in fact, it was overlooked and perhaps just not recorded.
This problem of non recording of information is further highlighted in relation to the search of Flinders Island. Constable Archer believed he had requested that a land search of Flinders Island be undertaken. The police officer on the island disputes that he was so requested, and was adamant that had he been so requested he would have done it. Sergeant Stanwix version is supported to some extent by the comments of Mr Steven Francis of AusSAR when he was speaking with a daughter of the late Mr Hill, on the 1st May 2001 at 3:37pm when he said it was his understanding that Tasmania Police had not checked Flinders Island. From the evidence, he could have made that assumption after having received information from Tasmania Police as to what searches they had undertaken, being information sought after the transfer of coordination.
1. There is a need for all Masters of vessels which are required to be in survey or required to be fitted with radios maintain regular communication notifying of their locations, with a minimum period of not less than 12 hours between such transmissions.
This would have the effect of reducing the prospective search area in the event that the vessel suffers some form of distress which precludes the transmission of a distress call or the inability to activate an EPIRB.
2. It is important that fisherman and all users of the seas are reminded to maintain regular contact with the Bureau of Meteorology so as to be fully informed of prevailing weather conditions and not to rely on visual inspection
The weather conditions at the time of departure of the Margaret J could not be described as ideal, and it would seem likely that other fishermen may have been reluctant to put to sea or remain at sea. I note that one witness indicated he would not have been as concerned with a vessel of the size of the Margaret J.
The rapidly changing weather conditions may have had some bearing on the ultimate foundering of the vessel.
This highlights the need to make regular checks with the Bureau of Meteorology.
3. That at the time of Survey, the Owner or Master of a vessel must make a declaration declaring that the vessel has not undergone structural alteration/s or any alteration which effects or may effect the amount of draft the vessel draws or its stability or is a significant alteration as defined in the Bylaws.
There is no significant evidence whereby a finding could be made that the alteration carried out by Mr Hill may have caused or contributed to the vessel foundering, it is a possibility that a combination of various influences may have when arising at or about the same time may have had some causative effect.
4. That all life rafts be fitted with an EPIRB.
If the life raft carried on the Margaret J had been equipped with an EPIRB there is a strong possibility that the occupant or occupants may have been able to activate the same thereby immediately transmitting their location and improving their chances of survival.
During the hearing reference was made to comments being made as to the use of epirbs and how people would be removing them from their vessels. I would strongly dissuade people from behaving in such an irrational manner.
Epirbs are a sure method of communicating one’s whereabouts in an emergency situation. The activation of the EPIRB causes a signal to be transmitted which can be triangulated and an approximate location determined thereby reducing a search area. The fitting of an EPIRB within a life raft would have the added benefit that if the EPIRB on the vessel could not be activated, any person gaining entry to the life raft could transmit their whereabouts.
The devices have been proven to be successful, and should be fully supported
5. That prior to the issue of a limited or other licence that the person obtaining same must attend and receive certification of being proficient in the use of the radios fitted to the vessel and the emergency channels available.
Whilst again there is no conclusive evidence that Mr Hill or members of his crew could not operate the radios there is some evidence that he did not regularly utilise them and it is opportunistic for consideration being given to this requirement as it appears incongruous that the fitment of radios does not also require a certificate of competency.
6. There is need for a greater training of those involved in or may become involved in search and rescue. These persons need to be aware of the deployment of life rafts and the various types of painter rope that may be located on vessels.
7. There needs to be a more in depth training of police officers in the protocols relevant to search and rescue.
8. There needs to be a closer working relationship between those officers in Tasmania Police who are involved in Search and Rescue and those employed by AusSAR.
This should include meetings or conference on at least an annual basis when ideas, techniques and all matters relevant to search and rescue could be discussed, and would have the added advantage of ensuring that each organisation and its members can appreciate the role of the other without one being over awed of the other, which, in my view, would lead to an improved system.
9. If a search is to be suspended such search should only be suspended under the written signature of a Senior Police Officer.
This would ensure that the officer will give greater consideration to further possible search operations before such a step is undertaken. A senior police officer experienced in the protocols relating to the transfer of coordination would be able to converse more readily with Senior Search and Rescue Officers of AusSAR and it would be less likely that they would act over deferentially to such officers. It is presumed they would be precise with the articulation of their intention and any facsimile would undoubtedly leave the recipient with no doubt as to its intention
10. Clearly Senior police officers should be more fully aware of the requirements of search and rescue and when called upon to fill a role as a search commander they should ensure that they have more than briefings and be fully involved in the activity and preferably should be experienced in the particular search being undertaken.
11. If there is an intention by Tasmania Police to continue to adopt those provisions of the National Search and Rescue Manual, then such provisions should be adhered to and there should not be a reliance on the general search provisions as was relied upon in this instance. For example, if the National Search and Rescue Manual had been followed Inspector Lindsay would have had the responsibility of maintaining the written log of the incident or of arranging for another to fulfil his role rather than leaving it to Constable Archer, who in my view was left with too greater a responsibility.
12. There should be greater attention to the keeping of accurate notes of information supplied and whilst I acknowledge that it may be difficult to keep such records or logs, clearly the systems and protocols established recognise this and clothe the search commander with this responsibility freeing the time of the coordinator to perform his duties. To merely pass this responsibility to the co-ordinator, who in this case was a Constable only, and expecting that he will indicate if the work is too great is unrealistic. In my view it is unlikely with whatever training a lesser ranked officer is likely to tell an inspector of higher rank it is his responsibility and he is not prepared to accept the delegation.
Clearly the procedures drawn up and encompassed in the Australian manual have been prepared after much experience has been gained, and in my view, it is appropriate that all states utilise these without variation to ensure uniformity and the ability to have universal aids prepared to instruct those involved in such searches.
In this regard there is no reason that I can see why there are not check sheets for the information required to be gathered by those obtaining intelligence.
In the case of the Margaret J it would seem that much more intelligence was readily available and could have been obtained at an early time if check sheets were utilised and all information was reduced into writing, and these were supplied to the command post.
If they are then transposed to a white board so be it, but at least records are kept which can be checked and verified.
13. There should be established a checklist of information that should be gathered in relation to searches, for example, as in this case, names, ages, health, surveys, description of safety devices on board, colours of life raft, copies of surveys, etc. If these are accurately recorded on a number of sheets it should be readily available to anyone assisting in relation to the search, and it would clearly demonstrate that such matters were investigated and recorded.
Here there appears to be some confusion as to the existence or otherwise of the life raft, whereas it is clear that Mrs Hill could verify the presence of a life raft, as could Miss Beeton and perhaps more importantly, the name of the Surveyor could have been obtained and he could have verified that there was a raft, and it was in survey, and these persons could have supplied considerable information which would have assisted in the search in the early stages. There is no evidence to suggest that MAST was contacted and asked to supply copies of any official records. This omission is, in my view, unacceptable.
14. Need to ensure that information is accurately recorded
A criticism was made during the Inquest in relation to the language used by the AusSAR officers during telephone conversations. It is my view that where person are engaged in traumatic situations, often the use of loose language enables those involved to reduce the stress created by being involved in life threatening situations day after day.
Any such criticism is unwarranted, and my only criticism of AusSAR would be in relation to their failure to accurately record information supplied and accurately convey such information to senior officers who are required to endorse actions to be undertaken.
Another matter which requires comment, it is my view, that AusSAR officers should have been aware of the lack of confidence of Constable Archer, and should have offered assistance as to the transfer of responsibility, or could have given him greater assistance, perhaps, by suggesting that he review the information and intelligence gathered and how such a review should be undertaken. With the experience of these officers, and which was exemplified by the review undertaken by Mr Alan Lloyd their assistance would have been invaluable. If this assistance had been given, there may not have been a need to transfer responsibility, as Constable Archer may have deduced that some of the uninhabited islands in the Furneaux Group had not been searched.
15. Register of persons with local knowledge and Relevant authorities
A register should be compiled for the State which incorporates names and contact numbers for persons with local knowledge of various areas throughout the State, in relation to marine rescue. This document could be utilised by all emergency services throughout the State to enable them to gather information without delay when the need arises. By including authorities such as Mast, local Coastal Patrols, authorised surveyors and the like, this would prove invaluable to those involved in either search and rescue or general emergencies. Such a register could be extended to other areas of Search and Rescue or other emergencies that arise where local knowledge could be of assistance to those involved.
16. Consideration should be given to the establishment of what I will call a forward command post.
As was suggested by both Constable Fowler and by Acting Inspector Hopkins, people often possess knowledge which can be important to a search but are reluctant to come forward for whatever reason. Often the mere presence of a Police command post can cause a person to come forward with information which they would not normally disclose. This has been done in the past in relation to serious crimes, and even Acting Inspector Hopkins indicated he had utilised it recently in relation to a search.
I agree with the predominant view that it does not matter where the actual main command centre is established. AusSAR itself is stationed in Canberra, but is able to coordinate searches throughout the nation.
But the gathering of intelligence, in my view, needs to be closer to the source of the enquiry.
17. There should be adopted a standard form to be used for the transfer of responsibility
There is little doubt, if a standard form had been readily available and had formed part of the manual, either the Police Manual or the National Manual, transfer of responsibility for the search of the life raft and the crew would have been passed to AusSAR at an earlier date, and most likely on the 17th April 2001, after the vessel had been located and the diving on the vessel had been completed. This may have led to the life raft being located at an earlier date, as the evidence clearly shows the life raft would have washed ashore on Prime Seal Island prior to this date.
In an endeavour to be constructive I have prepared a draft of such a form which I have annexed to these findings, in the hope that it will be considered by both organisations, and if not accepted, at least an acceptable form can be agreed at the earliest opportunity.
The form provides for a transfer of responsibility and a requirement on the transferring authority to supply all relevant information to the receiving organisation.
The form could include information as to the degree of reliability of the information.
The form is not meant to be all embracing, but hopefully will be developed by those involved in Search and Rescue activities.
The form if adopted, has the added benefit in that it provides the Search and Rescue Coordinator, the Search Commander, and other Senior Officers with a synopsis and relevant and precise information to consider before require a transfer of responsibility, or even in deciding to suspend a search..
I wish to stress that no action or inaction either by Tasmania Police, AusSAR or their officers in any way contributed to the death of any of the crew of the Margaret J.
The tragic death of these three men should not be in vain, and I have no doubt will not be in vain, as their death has highlighted deficiencies in our system of search and rescue which can now be revisited, and modified to improving on what is one of the best systems in the world.
To the families of the deceased I extend my sincere condolences on your loss. It is always very hard to come to terms with the loss of a loved one, particularly in such tragic circumstances as the sinking of the Margaret J.
I make no further comments or recommendations.
This matter is now concluded.