Boat builder blamed for deaths - Malu Sara
28.06.2008
MANSLAUGHTER charges have been recommended against the designer and builder of an Immigration Department patrol boat that sank in the Torres Strait in October 2005 with the loss of all five people on board.
Queensland Coroner Michael Barnes is expected to deliver within three months his findings on the inquest into the deaths of two male immigration officials, two women and a four-year-old girl, all Torres Strait islanders, when the Malu Sara was lost between the islands of Saibai andBadu.
Counsel assisting the coroner Mark Gynther has provided a 128-page submission on which all other counsel at the inquest have been asked to comment on behalf of their clients.
If Mr Barnes adopts the recommendations, the Department of Immigration is likely to be exposed to massive compensation payouts to the families of the five who died.
Mr Gynther says the behaviour of the boat's designer and builder, Don Radke, should be referred to the Director of Public Prosecutions ``for consideration as to prosecuting under S 303 of the Criminal Code'' as his negligence was responsible for the deaths of the five people.
His submission claims that Mr Radke failed to ensure the 6.5m Malu Sara had a watertight cockpit floor, reserve buoyancy, deck and engine-pod drainage; and that the vessel had positive freeboard when fully loaded.
Mr Gynther is scathing of the Immigration Department for its failure to supervise the construction of the Malu Sara and its five sister vessels, which were provided to islanders to patrol the Torres Strait, Australia's front line against illegal immigrants and terrorists.
The boats were launched at a gala celebration on Thursday Island on August 29, 2005, by then immigration minister Amanda Vanstone, who said the new fleet had cost $360,000.
Mr Gynther recommends that Queensland's Crime and Misconduct Commission investigate possible official misconduct by Sergeant Warren Flegg.
The police officer had about 80 radio communications with the vessel's skipper on the night it went missing, but took eight hours to tell search-and-rescue officials that he had been told the boat was sinking.
The evidence given by Sergeant Flegg at the inquest is to beexamined to assess why it ``conflicted'' with other official reports on the sinking.
As well, Mr Gynther recommends that Garry Chaston, the Immigration Department officer in charge on Thursday Island, who was responsible for ordering the boats and equipment, and training the skippers, should face disciplinary proceedings.
Mr Chaston knew Wilfred Baira, his employee and skipper of the boat, had reported he was lost when he left the office at 7pm on October 14 to keep a dinner date with his wife at the local bowls club.
He was told at 2.30am the next day the skipper had reported that his boat was sinking, but the inquest heard Mr Chaston did not come into the office to take any action until 9am.
Those who died in the early morning of October 15, 2005, were Baira, fellow immigration officer Ted Harry, Valorie Faub, Flora Enosa and her young daughter Ethena.
The five left Saibai island after lunch on October 14 for the 74km trip across mostly open seas to Badu island, but they soon encountered fog and rain, which reduced visibility.
At 4pm, Baira used a satellite phone to tell Mr Chaston he was lost. By 2.15am, Baira told Sergeant Flegg the boat was ``sinking fast'', but it was not until well after daybreak the following morning that search-and-rescue authorities were alerted.
Despite a reported sighting of a survivor the following day -- and a shark-ravaged torso that later washed up in Indonesia -- the boat and its passengers were never seen again.
The precis of the evidence given to the inquest outlined in Mr Gynther's submission shows almost nothing was done correctly from the time the boats were ordered until the search for survivors was called off.
The vessel, powered by two 90hp outboard motors, was one of six boats ordered to be constructed as part of the Immigration Department's border protection policy. They were delivered to the various islands by barge in 2005. None had foam or other positive flotation -- necessary to ensure that even if a boat overturned, it would not sink.
The boats were supposed to have the positive flotation, but Mr Radke gave evidence he did not install the material, which would have added about $1000 to the cost of each vessel. And they had scant navigation aids -- no chart, global positioning system, depth sounder, electric bilge pump, radar or radio.
The islander skippers received almost no training, even though the vessels had oil-injected outboards with which they were not familiar, and had satellite telephones on which they received the bare minimum of training.
Baira used the satellite phone to make his distress calls, first to Mr Chaston and then to Sergeant Flegg after Mr Chaston went to his dinner.
Sergeant Flegg admitted during evidence that he was aware of slang used in the Torres Strait referring to the alleged habit of islanders to ``exaggerate'' their danger status in boats, often activating their EPIRBs -- emergency position-indicating radio beacons -- without real cause.
He said he knew the EPIRBs were referred to as ``empty petrol I require boat''.
However, when Sergeant Flegg was told by Baira the boat was sinking, he did not pass that information on to the search-and-rescue authorities until about eight hours later, and did not organise for a helicopter to go immediately to the scene of the distressed boat.
In his written submission, Ralph Devlin SC for the Department of Immigration and Citizenship says many of the actions of its employee, Mr Chaston, were ``incomprehensible both to DIAC and would be to any reasonable and fair-minded person''.
``They appear more the result of idiosyncratic behaviour rather than being attributable to a lack of training by DIAC,'' he writes.
In a key concession, Mr Devlin says that if the search-and-rescue authority, Aussar, had undertaken overall co-ordination of the search at an early stage, working through the Queensland police on Thursday Island, ``air assets would most likely have been committed earlier -- before the Malu Sara and and its occupants disappeared''.
Mr Chaston's counsel, Michael Fellows, writes that in regard to necessary training to carry out his his job, Mr Chaston ``was destined to fail, though obviously this was not intended by him or his employer, though his employer must take primary responsibility for that''.
In addressing whether Mr Chaston's response on the evening of October 14 was appropriate, Mr Fellows writes that there was no basis to criticise him or his fellow officer, Pedro Stephen.
``In defence of both of them, it must be said that in the late afternoon and early evening, there was not then any immediate appreciation of danger, nor is it suggested that Wilfred (Baira) was reporting danger,'' he says.
Mr Radke's lawyer, Kevin Priestly, writes in his submission that it was not necessarily a design fault that caused the sinking of the Malu Sara, as it was possible the vessel was anchored broadside and was swamped by the big seas.
``It might be submitted that the coroner need only come to the view that there exists a reasonable suspicion of a criminal offence before conveying to the DPP the relevant information,'' Mr Priestly writes.
He disputes that Mr Radke was personally responsible for the boats, because the contract to construct and supply was made between the Immigration Department and his company, Subsee Explorer, and not with him personally.
The Weekend Australian understands that Mr Radke is now working in a family aviation company in Toowoomba, west of Brisbane.
He is believed to be overseas and could not be contacted.
Counsel for Sergeant Flegg, Steve Zillman, writes in his submission: ``In the80 or so occasions where he had acted as the search and rescue main co-ordinator, the majority of EPIRB activations didnot involve situations where there was grave and imminent danger.''
He says Sergeant Flegg was aware the Malu Sara was new and was entitled to assume that in all respects the vessel was ``otherwise seaworthy''.
``At no point had Chaston ever informed him there had been any difficulty experienced with the vessel either before, on its way to, or in its operations at Sabai Island,'' Mr Zillman writes.
A recommended finding put by Mr Gynther that is certain to cause huge upset in the Torres Strait is that a survivor was sighted in the water on October 16 -- more than 24 hours after the reported sinking.
``Two of the witnesses described what they saw as looking like someone in the water waving their arms,'' Mr Gynther wrote.
``It is probable both from descriptions and based on survivability evidence that the survivor was male. The proper inference would be that the survivor was from the Malu Sara.
``The court was told that a rescue helicopter was sent to the marked location within about 15 to 20 minutes. No successful rescue was performed and the person was not re-sighted after the initial sighting by those on board the search aircraft.''
The recommendations by Mr Gynther will do little to calm the majority of Torres Strait islanders, who remain incensed that the initial investigation into the tragedy conducted by the Australian Transport Safety Bureau found nobody responsible.
