Inquest into the Norman Leslie BALE

Delivered on :29 March 2018

Delivered at : Perth

Finding of : State Coroner

Recommendations :N/A

Orders/Rules : N/A

Suppression Order : N/A

Summary : The deceased at the time of his death was a 53 year old man living with a house mate near Karratha. He was unmarried and had no children.  In September 2016 he went on a fishing trip on his own, and failed to return.  His body has never been recovered.

The focus of the inquest was on the events leading to the deceased departure on 23 September 2016 for his fishing trip, the risks attending that departure, and the outcomes of the search and rescue efforts.

On the evening of Friday 23 September 2016 the deceased launched his dinghy at the Back each boat ramp at Nickol Bay, near Karratha. The dinghy was laden with equipment and sat low in the water as it was launched.  Unfortunately the dinghy and the engine were both in poor condition and not suitable for use on the waters off Nickol Bay.  The deceased chose not to take any safety equipment with him and refused an offer of a life jacket from a friend.

The dinghy was found adrift and mostly submerged just off the ocean side (north-west) of Dixon Island on the morning of Tuesday 27 September 2016. The deceased was not on board.

A comprehensive land and sea search was undertaken and the State Coroner was satisfied that if the deceased was alive during the duration of the search operations and he had reached land, he would have been sighted.

The State Coroner was satisfied that the death of the deceased has been established beyond all reasonable doubt. The State Coroner found that the deceased died between 23 and 27 September 2016 as a result of immersion.  The State Coroner found death occurred by way of misadventure.

The State Coroner noted the Department of Transport’s current review of safety equipment that is presently required to be carried on recreational craft on rivers or the seas. The State Coroner commented on the ongoing need for all operators of vessels to take safety requirements seriously and to treat the safety requirements under the regulations as minimum requirements.

 

RECORD OF INVESTIGATION INTO DEATH Ref No: 6/18 I, Rosalinda Vincenza Clorinda FOGLIANI, State Coroner, having investigated the suspected death of Norman Leslie BALE with an Inquest held at Perth Coroners Court, Court 51, Central Law Courts, 501 Hay Street, Perth, on 30 January 2018 find the death has been established beyond all reasonable doubt, the identity of the deceased was Norman Leslie BALE and that death occurred between 23 September 2016 and 27 September 2016 in the waters off Nickol Bay, Karratha, as a result of immersion in the following circumstances:-

 

INTRODUCTION 1. Norman Leslie Bale was a 53 year old man living with a house mate at Millar’s Well in the north of Western Australia, near Karratha. He was unmarried and had no children. In September 2016 he went on a fishing trip on his own, and failed to return. Following the evidence at the inquest I found that his death has been established beyond all reasonable doubt. His body was never recovered. In this finding, he is referred to as the deceased. 2. The deceased’s family live on the east coast. The deceased’s death is a great loss to them. Their grief is compounded by the distance from the family home when he went missing, and the fact that, despite the searches, it has not been possible to recover his body. 3. Understandably the deceased’s family have been anxious to know the circumstances surrounding his disappearance, and the efforts that were made to locate him after he was identified by the authorities as missing. It will become apparent to the reader that the search efforts were prompt, extensive and unrelenting. Searches were suspended only when it was abundantly clear that they were futile. 4. By way of background, ample evidence shows that the deceased had loved the ocean all of his life. He had spent a lot of time in it, from when he was a youngster. As he matured, he became an experienced fisher. As an adult, living near Karratha, one of his most enjoyable pastimes was to go out in boats to fish or catch crabs. He had a good network of friends in and around Millar’s Well. He was gainfully employed as a trade assistant for a painting business. His friends described him in the following terms: a really good guy; helpful to people around him; having a positive outlook on life; always reliable for work.1 5. He was an unconventional character, and somewhat of an adventurer. His friends recalled many enjoyable times out on the waters off Nickol Bay with him. There were lots of fishing trips together. He had been a strong swimmer, and despite some emerging maladies, he still felt very confident being in or on the water. 6. However, not all of his friends were comfortable with his boating practices. He was too adventurous, sometimes to the point of recklessness. This was likely due to an overly confident belief in his ability to deal with an unexpected mishap on the water, and a disinclination to accept that he was no longer as fit and strong as he undoubtedly once was. 7. On his last ill-fated fishing trip the deceased could not find anyone to go fishing with him. A number of his friends warned him that the weather was unfavourable (it was windy and the sea was choppy). Undeterred, and in keeping with his character, the deceased borrowed a small dinghy and an engine and went fishing by himself.2 8. Unfortunately the dinghy and the engine were both in poor condition and not suitable for use on the waters off Nickol Bay, even if the weather had been propitious. Compounding these problems was the fact that the deceased chose not to take any safety equipment with him and, inexplicably, refused an offer of a life jacket from a friend. 9. Just after 5.00 pm on Friday 23 September 2016 the deceased launched his dinghy at the Back Beach boat ramp at Nickol Bay, near Karratha. The dinghy was laden with equipment and sat low in the water as it was launched. 10. The deceased’s intention had been to go fishing overnight, and return the next day. He had crabbing equipment and he was heading for a nearby creek by following the shoreline. He was last seen motoring away from the Back Beach boat ramp in an easterly direction (right from the ramp) into the westerly wind. 11. At some point between that departure and 11.00 am on Tuesday, 27 September 2016, when his dinghy was found adrift and mostly submerged just off the ocean side (north-west) of Dixon Island, the deceased went missing and tragically died. 12. On 13 October 2016 the deceased’s mother, through her lawyer, wrote to me to request that an inquest be held. After the receipt of further information from the Western Australia Police, on 20 December 2016 I determined that I had reasonable cause to suspect that the deceased had died and that his death was a reportable death. Accordingly under section 23(1) of the Coroners Act 1996 (Coroners Act) I directed that the deceased’s suspected death be investigated. 13. As a result of that direction, under section 23(2) of the Coroners Act a coroner must hold an inquest into the circumstances of the suspected death, and if the coroner finds that the death of the person has been established beyond all reasonable doubt, into how the death occurred and the cause of the death. 14. I held an inquest on 30 January 2018 as required. As outlined above, at the conclusion of the inquest, I found that the death of the deceased Norman Leslie BALE has been established beyond all reasonable doubt.3 15. The inquest focussed on the events leading to the deceased’s departure from the Back Beach boat ramp on 23 September 2016, the risks attending that departure, and the outcomes of the search and rescue efforts. 16. The documentary evidence adduced at the inquest comprised the investigation report of Senior Constable Steven Innerd of the Karratha Police Station, together with a brief of evidence compiled in the investigation, received into evidence as Exhibit 1, and containing 39 tabs. THE DECEASED 17. The deceased was born on 30 January 1964 in Coffs Harbour Hospital in New South Wales. He was the second of three children. He had an older sister and a younger sister. 18. As a young child the deceased lived out of town on a small farm with his family. He loved animals, and horses in particular. He was a friendly happy-go-lucky child and well-liked by people who he came into contact with. He completed his first Intermediate Certificate at the age of approximately 16 years and since that time, he had been gainfully employed in a range of occupations. 19. As a young man the deceased travelled around Australia, but he remained in close and affectionate contact with his family on the east coast, returning home to visit his mother and father at regular intervals. 20. Approximately six years prior to his disappearance, the deceased became employed in the building industry in Karratha. He was initially occupied mainly with concreting work. Every couple of years he would continue to return to the east coast to see his family. 21. On 30 December 2014 the deceased was on holidays at his parents’ property for three weeks and he had an accident while he was riding their lawn mower up a slope. The lawn mower unexpectedly tipped over and as he put his left hand up to protect himself, the blades hit his hand. He sustained extensive injuries to his left hand with multiple fractures. 22. He required surgery after the accident and several follow-up operations. He subsequently had frequent outpatient reviews by occupational hand therapists in the eastern states. The medical treatment continued at various periods from the time of the accident to February 2016.4 23. The deceased’s injuries affected the flexion and extension of his hand, compromising the rapid ability to straighten his fingers. This was a particularly intrusive injury for the deceased, given his manual labour and fishing trips. 24. Shortly afterwards, the deceased returned to live in Western Australia. The constricting effects of his hand injury improved over time. However, the plan was still for him to return to the east in October 2016 for further operative management to reconstruct the tendons in his hand.5 25. Before this could happen, in the middle of 2016 the deceased experienced a further deterioration in his health. His ankles had become sore and swollen and it was difficult for him to walk, especially in the mornings. His doctor ordered blood tests and he was found to have rheumatoid arthritis.6 26. He was promptly referred to a rheumatologist but as at September 2016 he had still not seen this specialist. As a result of the rheumatoid arthritis the deceased suffered a degree of ongoing pain, and swelling of his joints, particularly in his knees. His family and friends observed some deterioration in his physical health and mobility, consistent with this diagnosis. 27. There is no record of the deceased suffering from any cardiac or respiratory conditions. There is no record of the deceased consulting a medical practitioner for mental health related conditions. Whilst the deceased was understandably concerned about his injured hand and his rheumatoid arthritis, according to his family and friends, he was not known to suffer from depression. 28. It is against this background that the events leading to the deceased’s disappearance are assessed, and together they provide some insight into what likely happened on his final ill-fated fishing trip. THE EVENTS LEADING TO THE DISAPPEARANCE 29. As at September 2016 the deceased and his friend Mr Luke Prosser had for some time been planning a fishing trip. They intended to launch a vessel from the Back Beach boat ramp at Bulgarra, and travel to nearby Airport Creek, to put down some nets in order to catch mud crabs. This ramp is the launching facility for vessels to transit directly into Nickol Bay.7 30. Nickol Bay is a large bay exposed to the open ocean to the north. It is largely unsurveyed and subject to significant variances of diurnal tides, making the boat ramp and much of the creeks and waterways un-navigable during certain times of the day. The Karratha/Dampier region has one of the highest boating ownership per population rates in Australia.8 31. The bay is used for both commercial and recreational fishing. The evidence reflects that boating is a popular activity on the bay. The marine life in the bay presents some risk to a person falling overboard or being washed overboard in the bay. There is a prevalence of various species of marine predators, particularly tiger and bull sharks. Very rarely these are also crocodiles.9 32. The deceased did not own a vessel. On Wednesday 21 September 2016, the deceased had asked a friend, Mr Steven Lea, if he could borrow his dinghy. Mr Lea did not accede to this request because he knew the size of his dinghy was unsuitable, having regard to the deceased’s known fishing plans. 33. From Mr Lea’s perspective the weather was inclement and it would have been very dangerous for the deceased to go out to sea. When Mr Lea decided not to make his dinghy available, the deceased appeared to accept his position, going so far as to say: “I don’t blame you for not lending me the dinghy.” This was the last occasion upon which Mr Lea saw or heard from the deceased.10 34. The next morning on Thursday 22 September 2016 the deceased asked his friend Mr Donald Horton if he could borrow his outboard motor. This was a 15 horsepower Evinrude outboard engine, and a fuel tank. Unfortunately the engine was not in good condition. The deceased explained to Mr Horton that he wanted to go fishing with a friend the next day, as he had found a creek with lots of crabs. Mr Horton informed the deceased that he was still repairing the engine, but that he was welcome to use it.11 35. Specifically, Mr Horton explained to the deceased that the engine’s gear box was stuck in forward gear, which meant there was no neutral or reverse gear. The deceased was not concerned about this malfunction. Mr Horton also explained to the deceased that the fuel in the tank was about four months old and that it would need replacing. The deceased said he would replace the fuel. Mr Horton helped the deceased load the engine and the fuel tank into his car. This was the last occasion upon which Mr Horton saw or heard from the deceased.12 36. On that same day (22 September 2016) the deceased was working with Mr Stewart Bullen at premises on North West Coastal Highway. The deceased mentioned to Mr Bullen that he might take a dinghy out that afternoon to go crabbing at or around Airport Creek.13 37. Mr Bullen, aware of the likely size of the dinghy, responded by telling the deceased quite emphatically that it was too windy, and he also spoke to the deceased about safety equipment. The deceased told Mr Bullen he did not need any safety equipment as he was only going to fish “in-shore.” This is, self-evidently, a dangerous assumption.14 38. They did not discuss the matter any further, and Mr Bullen dropped the deceased off at his home at approximately 1.30 pm on 22 September 2016. They arranged that he would collect the deceased for work on Sunday 25 September 2016 at 6.40 am. This was the last occasion upon which Mr Bullen saw or heard from the deceased.1 39. That same day (22 September 2016) the deceased then asked his housemate Mr Colin Harwood if he could borrow his 12 foot aluminium dinghy. This boat was unregistered and had no motor or anchor fitted. Mr Harwood had not ever used his dinghy on the open waters. He agreed to loan his dinghy to the deceased. The deceased took the dinghy and some oars but, inexplicably, declined Mr Harwood’s offer of a life jacket from his canoe.16 40. Mr Harwood’s dinghy had no EPIRB17 to alert search and rescue services in the event of an emergency. Nor was it fitted with a radio or any other safety equipment. The deceased hooked the dinghy up to his motor vehicle in the early afternoon of 22 September 2016 and towed it away, intending to later go to the house of his friend Mr Trent Simpson for them to work together on the motor and fuel tank. This was the last occasion upon which Mr Harwood saw or heard from the deceased.18 41. It is not known what the deceased did in the interim (nor does it raise any concern) but by the time the deceased arrived at Mr Simpson’s home, it was 11.30 pm on 22 September 2016. Mr Simpson understood that the deceased wanted to go crabbing at Airport Creek and he helped him flush the old fuel out of the motor and put approximately 15 litres of fresh fuel into it.19 42. After it became apparent that the deceased was keen on venturing out in the dinghy that very night, Mr Simpson spent approximately two hours sitting and talking with the deceased at his home in order to persuade him not to go out. The deceased eventually fell asleep at Mr Simpson’s home in the early hours of the morning on 23 September 2016 at approximately 2.00 am, as did Mr Simpson. This was the last occasion upon which Mr Simpson saw or heard from the deceased.20 43. The next morning (23 September 2016) at approximately 8.30 am when Mr Simpson woke up, the deceased was no longer at his home. Mr Simpson’s partner informed him that at approximately 4.30 am the deceased had asked her to wake him up so they could go crabbing, but when she informed the deceased that Mr Simpson was still asleep, he left and took the dinghy with him. 44. Mr Simpson and his partner promptly drove down to the Back Beach boat ramp, and they were somewhat comforted when they did not see the deceased’s motor vehicle in the carpark, as it indicated to them that he had not gone out in the dinghy.22 45. Mr Simpson had been out fishing with the deceased on approximately 40 previous occasions, during the day and on occasions at night time. However, on the occasions when Mr Simpson had gone out at night time with the deceased, it had generally been on his own boat which is well set up for night fishing.23 46. Whilst Mr Simpson considered the deceased to be an experienced fisher, from his observations, every time the deceased had previously gone out in a boat, he had someone else with him.24 47. Mr Simpson had also noted that in the previous 12 months, the deceased had physically slowed down a lot. He was aware that the deceased struggled each morning with his arthritis. He had also observed that the deceased’s balance had deteriorated over time.25 48. When Mr Simpson first saw the dinghy that the deceased brought to his home, he noticed that the following items were in the dinghy: • Four opera house traps; • Two or three normal drop nets with floats; • An orange Tropicool esky (i.e. an ice box), of about 100 litre capacity; • Two 1.25 litre Coke bottles filled with water, one being frozen. • Five Carlton Dry stubbies; • A high visibility orange rain coat; • A grapple style anchor with chain and rope; • Two canoe paddles; • A tackle box; and • An old fishing rod and reel.26 49. Witnesses later described the dinghy as being laden with equipment when it was launched. It is likely that all or most of

 

these items were still in it. I am satisfied that there was no appropriate safety equipment on the dinghy. 50. In the meantime after leaving Mr Simpson’s home, where he spent the night, at about 7.30 am on Friday 23 September 2016 the deceased arrived at Mr Prosser’s home. The previous afternoon, Mr Prosser had agreed to go out in the dinghy at approximately 9.00 pm on that night. However, at 8.41 pm on the night of 22 September 2016 Mr Prosser, for perfectly logical reasons, changed his mind and sent the deceased a text message which said: “If the wind doesn’t die I’m not jumping in that boat”. Shortly afterwards the deceased replied to the effect that he would nonetheless go out in the dinghy on his own or with someone else. The deceased’s manner of communication indicates that he was fixated on going crabbing.27 51. Mr Prosser had formed the view that he did not want to go out because it was too windy, the weather was deteriorating and the deceased’s dinghy was not safe under those conditions. He was also aware that the engine was jammed in forward gear, the oars were plastic, there were no life jackets and the dinghy itself was generally in a poor state.28 52. The deceased often had a coffee at Mr Prosser’s home in the morning before heading off to his daily activities. When the deceased arrived at Mr Prosser’s home at 7.30 am on 23 September 2016, he again informed Mr Prosser that he was going to go fishing with or without him that afternoon. Mr Prosser responded that he was not going to go because he had looked at the weather report and the forecast was not good. He was aware that it was still pretty choppy and he remained concerned about the condition of the dinghy.29 53. The deceased left Mr Prosser’s house at approximately 9.30 am on the 23 September 2016 taking the dinghy with him. This was the last occasion upon which Mr Prosser saw or heard from the deceased.30 54. The deceased returned to Mr Prosser’s address just after midday on Friday 23 September 2016 to look for him, possibly to endeavour to persuade him to go out in the dinghy, but he was not there. The deceased spoke to his mother Mrs Debra Prosser,  who informed him she did not know where her son was, at that point. Her offer to contact him was declined.31 55. Mrs Prosser described the deceased as being in a good mood when he left shortly afterwards, having discussed plans for the crabbing trip. He told her he intended to leave from the Back Beach boat ramp and go straight out towards the gas flame and down Airport Creek. This was the last occasion upon which Mrs Prosser saw or heard from the deceased.32 56. When the deceased left Mrs Prosser’s address, he drove to Mr Lea’s address, and for some reason that is not clear on the evidence, he left his dinghy and trailer there. Mr Lea returned to his home just after midday and noticed the deceased’s dinghy and the trailer parked on his front yard, but no vehicle was present. He did not see the deceased. When Mr Lea left his home at about 3.00 pm to visit a friend, the dinghy and trailer were still outside his address. By 6.00 am the next morning, being Saturday 24 September 2016, Mr Lea observed that the dinghy and trailer were no longer parked at his address.33 57. Mr Lea did not know why the deceased would have left the dinghy and trailer at his property. As it transpired, later in the afternoon on 23 September 2016 the deceased had returned to that address and towed the dinghy to the Back Beach boat ramp, which is approximately two kilometres east of Karratha. The deceased then launched the dinghy, tied it up to the jetty and proceeded to park his vehicle and trailer in the adjacent car park.34 58. At approximately 5.00 pm on 23 September 2016 Mr Darren Mitchell, a friend of the deceased, was parked alongside the Back Beach boat ramp when he spotted the deceased in the car park. After the deceased headed towards his dinghy, Mr Mitchell got out of his vehicle and walked down to the jetty to speak with him. When Mr Mitchell got closer he observed that the deceased was in what he described as “an alloy 3.5 to 3.7 metre tinny”. He noted that there was a white Evinrude motor on the back.35 59. Mr Mitchell observed that the dinghy appeared very crowded with personal items, and with not a lot of room available for the deceased to move about. He recalled seeing a red esky, crab pots, a green army coloured shoulder bag and a fishing rod.36 60. The deceased told Mr Mitchell he was going to go crabbing in Fields Creek (unlike what he told other friends) and that he was going to “do a tide”. Mr Mitchell was aware that this meant that the deceased was planning on staying out until the next tide, which would have necessitated an overnight stay. During this conversation, Mr Mitchell observed that the deceased was limping badly on his left leg, and that he placed all his weight onto his right leg. The deceased had previously complained to him about the effect of his arthritis.37 61. During their conversation Mr Mitchell noted that the deceased was very keen to get onto the water. The deceased told Mr Mitchell on numerous occasions that he was “running out of water”. This meant that the tide was getting low.38 62. At the deceased’s instruction, Mr Mitchell untied the dinghy and threw the rope to him. The deceased had the Evinrude motor going and departed the shore. Mr Mitchell got into his vehicle and headed out the main entry to the car park to go home.39 63. However, Mr Mitchell then executed a U turn and drove back into the car park. As he looked out over Nickol Bay he could not see the deceased behind the rocks, so he drove back along the foreshore in case the deceased needed his help. Mr Mitchell saw the deceased just out beyond the heads and remembered thinking that he should have been further out. However, on balance he dismissed his concerns and drove home at approximately 5.30 pm. This was the last occasion upon which Mr Mitchell saw or heard from the deceased.40 64. In addition to Mr Mitchell the last known persons to see the deceased alive were Mrs Kathryn Dart and Mr Kieran Dart. They were also at the Back Beach boat ramp when the deceased departed the shore. At approximately 5.00 pm Mr and Mrs Dart observed the deceased standing alone in the dinghy when it was still tied to the jetty, whilst he was still talking with Mr Mitchell, who stood on the jetty. They did not know the deceased or Mr Mitchell, but from their descriptions I am satisfied that their observations were of those two persons.

65. Mr Dart observed that the dinghy appeared to be sitting low in the water. He considered that the weather conditions appeared rough for the size of the dinghy and he recalled south-westerly winds of about 14 knots (approximately 26 kilometres per hour).42 66. Consistent with Mr Mitchell’s evidence, Mr and Mrs Dart observed Mr Mitchell untie the rope that attached the dinghy to the jetty and saw the deceased depart the shore on his own, turning right (that is, in an easterly direction) towards the Nickol Creek side of the bay.43 67. This is the last known position of the deceased. After that time there was no record of any person having seen the deceased alive or having heard from him 68. There were numerous risks attending the deceased’s departure from the Back Beach boat ramp. They are outlined below. RISK FACTORS The deceased’s boating practices 69. The deceased had a history of unsafe boating practices. If history is any indication of future behaviour, as it often is, this was a substantial risk factor. 70. It appears entirely within character for the deceased to have persisted with taking the dinghy out on Nickol Bay on 23 September 2016, with the intention of staying overnight, when almost every person he spoke with, hearing of his plans, endeavoured to dissuade him, for safety reasons. 71. Mr Horton, who lent the deceased his Evinrude motor, provided a statement for the assistance of the court which sheds some light on the deceased’s incautious attitude towards boating safety. Mr Horton had known the deceased for about five years and had gone fishing with him on numerous occasions.44 72. Mr Horton believes the deceased knew the Nickol Bay shoreline very well, having previously lived for some two years in a caravan near Cleaverville Beach, north east of the Back Beach boat ramp. However, he was of the view that the deceased would probably not know how to locate Airport Creek, to the west of the boat ramp, or the creeks to the east on his own.45 73. In Mr Horton’s experience, the deceased always tried to push the limits when he went fishing. He was aware that it was not uncommon for the deceased to travel through dense mangroves, and to travel up a creek only a few metres wide to find some crabs.46 74. In the past Mr Horton had cautioned the deceased not to stand up and walk around a small dinghy, due to the risk of capsizing. Mr Horton considered the deceased to have an impulsive personality, an observation that has been borne out by the evidence of the deceased’s decision to persist with his fishing trip on 23 September 2016.47 75. Mr Horton believes that, having regard to their past fishing trips, the deceased was likely to have sought to go up Nickol Creek or Fields Creek. Mr Horton was aware of an incident in the past when the deceased’s dinghy had flipped over near Dixon Island. On that occasion the deceased managed to reach the shoreline, left the dinghy where it was, and walked back to his caravan, a distance of approximately five kilometres. Clearly, the deceased was not unaware of the potential dangers of heading out in a small dinghy, having had firsthand experience of capsizing.48 76. In the days before 23 September 2016, the deceased had told a number of his friends that he intended to go crabbing at Airport Creek, which would have had him turning towards a westerly direction as he departed the Back Beach boat ramp. However witnesses observed him motoring away in an easterly direction, later leading to speculation that he had changed his mind and decided to go crabbing at Nickol Creek instead. 77. This was also a risk factor. The importance of providing friends or family and the local volunteer marine rescue group with accurate information about intended destination, as well as the expected return time, before departing in a vessel cannot be overemphasised.The weather and tides 78. Nickol Bay is sheltered on three sides by mainland and the Burrup Peninsula. Being sub-tropical, the bay is often subject to strong winds, particularly from the north. Strong winds in the bay area result in short and steep wind driven waves which can be a hazard to small vessels.49 79. The weather conditions at the time were described by witnesses as being rough with south-westerly winds of about 14 knots (approximately 26 kilometres per hour). The witnesses’ observations are consistent with the Bureau of Meteorology weather observations taken from Karratha Airport at 3.00 pm on 23 September 2016. They indicated a westerly wind direction of 30 kilometres per hour.50 80. At 5.14 pm on that same date, the weather observations indicated westerly winds with maximum gusts of 44 kilometres per hour, with seas of up to 2.5 metres, and with wind driven choppy waves. The wind was picking up and the weather was becoming more unfavourable for boating. Having regard to the poor condition of the deceased’s dinghy and motor, this was a significant risk factor.51 81. Tidal movements at Nickol Bay can result in some areas drying to mud as the tide lowers. Records from the Bureau of Meteorology tide chart reflect that on Friday 23 September 2016, high tide at Cape Lambert was 4.57 metres at 2.43 pm, low tide was 1.86 metres at 8.54 pm. The next high tide was 4.78 metres at 2.55 am on Saturday 24 September 2016. Low tide after that was 1.8 metres at 9.37am.52 82. The tidal movements were also a risk factor, and they were well known to the deceased. They constrict the timing of departure and return to certain timeframes, highlighting the need for a seaworthy vessel, and adequate communication and safety equipment. The condition of the dinghy and motor 83. In the course of the search operations, the deceased’s dinghy was subsequently recovered. Despite having been submerged, investigators were able to assess the dinghy and motor, and provide opinions on their condition and suitability. 84. Specifically, as part of the investigations that followed, a report was completed by the Department of Transport and a forensic report on the recovered dinghy was completed at the Karratha Police Station. The recovered Evinrude motor was examined by an automotive/marine mechanical technician, Mr Darren Mackenzie. I am assisted by these investigations.53 85. It is known that the deceased borrowed the 12 foot aluminium dinghy from a friend. It was not a sturdy vessel. A number of witnesses referred to it as a “tinny.” One witness described it as having low sides, almost like a “rooftop tinny.” It was not registered. 86. After the dinghy was recovered it was examined and it was ascertained that there were numerous broken welds to the hull and transom area. There were cracks, dents and holes (most filled with putty, glue or silicone).54 87. To make matters worse, when the deceased departed the shore, the dinghy was laden with equipment as previously described. It was observed to be sitting low in the water. The investigating officer estimated the known contents of the dinghy to weigh approximately 150 kilograms, and together with an estimated weight of 80 kilograms for the deceased, it is probable that there was a combined weight of 230 kilograms on board the dinghy.55 88. The dinghy had a low keel to gunnel measurement (400 millimetres at the stern). It is likely that higher waves would have been able to wash over the sides and flood the vessel, and/or adversely affect its stability.56 89. The dinghy had no seat at the stern for the deceased to sit upon when operating the outboard motor. He would have had to stand or kneel at the stern, sit on his esky, or sit on the transom. Unless kneeling (which would have been unlikely due to his arthritis) the deceased’s position would place him at risk of falling overboard. His centre of gravity would have been well above the gunwale.57 90. The motor was an Evinrude outboard 15 horsepower engine, serial number A0305326. After recovery, when it was inspected, it was observed that the motor had been submerged, and that it had been removed from the transom in order for it to be transported to Karratha Police Station.58 91. Previously, the police officer who dived on the dinghy when it was recovered had noted that the motor was still attached to the transom. The transom itself was in a poor state of repair after being damaged by the elements during submersion and it also had signs of old defects.59 92. Upon inspection Mr Mackenzie noted that the outboard’s gear shift connector inside the leg of the engine was not connected and the outboard was stuck in forward gear. It was incorrectly installed. Being a 1986 engine, it did not offer the option of a safety lanyard (kill switch) if the operator fell overboard with the engine running, meaning that the dinghy would continue on its course. 93. In Mr Mackenzie’s opinion, the Evinrude motor was too large for the dinghy. The dinghy itself was not a seaworthy craft and Mr Mackenzie doubted whether it would have been wholly watertight prior to the incident. Mr Mackenzie considered the dinghy to have been suitable for creek use at best, and only with an engine of an estimated six horsepower.60 94. When the fuel tank was recovered, it was intact with no holes or leaks. Approximately 7.5 litres of fuel was drained into measuring jars.61 95. For the reasons outlined above, I am satisfied that the dinghy was not seaworthy and the motor was defective. It was not at all suitable to proceed offshore. The deceased’s contention that he proposed to go fishing “in-shore” did not mitigate these significant risk factors.

The lack of safety equipment 96. The Navigable Waters Regulations 1958 (Navigable Waters Regulations) require that a vessel being taken outside protected waters (such as a lake, river or estuary) carry certain safety equipment. A vessel travelling between zero and two nautical miles from the mainland must carry: • A bilge pump or bailer; • A fire extinguisher that conforms to specified standards; • An anchor and line; • An approved life jacket or personal floatation device for very person on board; and • Compliant distress signals, being not fewer that two red hand held flares (or two parachute distress rockets) and not fewer than two orange hand held smoke signals (or one orange smoke canister). 97. Regrettably, the deceased refused an offer of a life jacket for his ill-fated fishing trip from Mr Harwood. If he was washed or fell overboard, he would not have been able to stay afloat for any length of time. 98. Erroneously, the deceased told Mr Bullen that he did not need safety equipment because he was only fishing “inshore”, a matter I have addressed above in this finding.62 99. The Navigable Waters Regulations also require that a vessel travelling more than two nautical miles from the mainland must be equipped with a compliant and registered EPIRB. 100. Mr Horton, who had been on past fishing trips with the deceased, highly doubted that the deceased would have taken flares or an EPIRB with him, which as it transpires is correct. In a conversation the night before he left, the deceased told Mr Davies and another friend that he did not need an EPIRB or distress flares.63 101. There was no sighting of an EPIRB or distress flares in the dinghy. Had the deceased been in a position to, he would not have been able to alert any person with an emergency signal.

102. There is no evidence of the deceased having carried any other safety equipment, no flares, nor radio either. Quite sensibly, the lack of safety equipment was a factor that caused Mr Prosser to decide not to go out fishing with the deceased.64 103. Whilst there is evidence of the deceased carrying an anchor, and of borrowing oars from the dinghy’s owner, these were hardly sufficient for safety purposes.65 104. The deceased had a recreational skippers’ ticket, and he would have had to pass a test in relation to safety of boats and associated safety equipment required to be carried on boats. I am satisfied that it is highly likely that he well knew, for example, that he ought to have carried an approved life jacket for himself.66 105. The deceased was navigating alone, and also planned to do so at night time, elevating the risks he faced in the event of a sudden and unexpected emergency. 106. Adding to these substantial risk factors, as at September 2016, the deceased’s safety at sea would have also been compromised by his injured hand and rheumatoid arthritis, particularly with regard to strength, balance and grasping items.67 THE DECEASED IS IDENTIFIED AS MISSING 107. The deceased was known to sleep at friends’ houses, or to stay out overnight fishing. His absence from his home for a few days and nights was not considered to be unusual. When he failed to return as intended on 24 September 2016, the alarm was not raised, because no one had reason to do so at that stage. 108. The deceased was last seen alive when he set out in his dinghy in the late afternoon of Friday 23 September 2016. It was not until after Mr Bullen, his friend and workmate, failed to make prearranged contact with him on Sunday 25 September 2016 that a concern developed for his safety. By this stage, within the context of a rescue, a lot of time had passed. 109. Mr Bullen and the deceased had both been in the employ of a painting business based in Karratha. When they last parted company on 22 September 2016, Mr Bullen had arranged to collect the deceased at 6.40 am on Sunday 25 September 2016, to do some further painting work.68 110. At approximately 10.45 am on Saturday 24 September 2016 Mr Bullen sent a SMS text message to the deceased’s mobile device to the effect that he would collect him the next day at 6.40 am, for work. The deceased did not respond to this message, but Mr Bullen did not consider that this was out of the ordinary for him.69 111. At approximately 6.00 am on Sunday 25 September 2016 Mr Bullen sent another SMS text message to the deceased to the effect that he would pick him up just before 7.00 am that morning, and again there was no reply. Mr Bullen arrived at the deceased’s home shortly before 7.00 am on 25 September 2016, and he noted that the deceased’s vehicle was not there. Mr Bullen waited outside the deceased’s home for approximately 10 to 15 minutes, to no avail.70 112. Mr Bullen considered that this was out of the ordinary for the deceased. In Mr Bullen’s experience, the deceased had always been reliable for work appointments. Without the deceased, Mr Bullen was unable to undertake the work and accordingly he informed the client and returned home.71 113. Just after midday on Sunday 25 September 2016 Mr Bullen sent the deceased another SMS text message to ascertain whether he would be available for work the next day and again there was no reply to that message. This lack of communication impelled Mr Bullen to go out to look for the deceased.72 114. At approximately 3.00 pm on the same date Mr Bullen drove to the Back Beach boat ramp and found that the deceased’s vehicle, with his trailer attached, was in the car park but he did not see any sign of the deceased, or the dinghy. Mr Bullen became concerned. He returned home and every 30 to 45 minutes he drove back down to the Back Beach car park, but on each occasion the situation remained the same.73 115. In addition to checking for signs of the deceased at the Back Beach car park at reasonably regular intervals on that date, at approximately 4.30 pm on the afternoon of Sunday 25 September

2016 Mr Bullen drove to the deceased’s home and spoke with his house mate, Mr Harwood. Mr Harwood informed Mr Bullen that he had not seen the deceased for a couple of days, but that was not out of the ordinary because the deceased would sometimes stay with friends.74 116. Mr Bullen made his last trip to the Back Beach car park at approximately 7.15 pm on the night of Sunday 25 September 2016 and when he saw the deceased had still not returned, he drove to the Karratha Police Station and reported the deceased as missing.75 SEARCHES FOR THE DECEASED 117. Karratha Police, upon been informed by Mr Bullen that the deceased had failed to return from a fishing trip, initiated a search for the deceased on that very night of 25 September 2016. Two police officers were promptly recalled to duty and the Water Police Co-ordination Centre at North Fremantle were informed. Together, they began to coordinate an immediate response to attempt to locate the deceased.76 118. Active and comprehensive searches for the deceased and/or any of his belongings continued for six days. Tragically, the deceased was not located alive. His body was not recovered. The details appear below. The first night 119. The searches for the deceased commenced on the night the deceased was reported missing, being 25 September 2016 (Day 1 of 6). The West Pilbara Volunteer Marine Rescue Group, located approximately 20 nautical miles from the Back Beach boat ramp, was mobilised. Volunteers travelled to the boat ramp that night, but unfortunately they were unable to deploy their vessel due to the low tide.77 120. Police officers were recalled to duty. Sergeant Scott Rogers Gillis (manager of North West Water Police) and Senior Constable Johnson also travelled to the Back Beach boat ramp that night, taking with them a Western Australia Police vessel, a 4.6 metre Naiad