Coroners Act, 1996
OF INVESTIGATION INTO DEATH
Alastair Neil Hope, State Coroner, having investigated the deaths of Nurjan Husseini
and Fatimeh Husseini, with an Inquest held at Fremantle CourtHouse on 4-8 November,
2002 find that the identity of the deceased persons were Nurjan Husseini and Fatimeh
Husseini and that deaths occurred on 8 November, 2001, 24 nautical miles from
any portion of Australian Territory as a result of Immersion in the following
The Acv Arnhem Bay
The Hmas Woollongong
The Launching Of The Light Utility Boat (Lub)
Efforts Taken To Save Fatimeh Husseini
The Evidence Of Ali
Sedequi, Sayyed Husseini & Mussa Husseini
The Cause Of The
Comments As To Safety
Australian Customs Service
Royal Australian Navy
Communication With Families
Submission On Behalf Of The Human Rights And Equal Opportunity Commission
In Relation To The International Covenant On Civil And Political Rights
A brief summary of the evidence which was provided to the Court
prior to the hearing and which was subsequently received in exhibit form was contained
in the Opening Address of Counsel Assisting, Mr Dominic Mulligan, who summarized
that evidence in part as follows -
Friday 2 November, 2001, the Sumber Lestari, a coastal trader type vessel of approximately
20 metres in length with a beam of approximately 6 metres and a draft of roughly
2.5 metres, left Surabaya, Indonesia with a crew of 4 Indonesians and 160 asylum
seekers. The intended destination of the Sumber Lestari was Ashmore Reef, where
the crew intended to offload their clients before making a run for home.
about 3.20pm on 8th November, 2001 the Australian Customs vessel Arnhem Bay, a
35 metre patrol boat licensed to carry 28 people, sighted the Sumber Lestari a
short distance outside the Australian contiguous zone off the coast of Ashmore
Reef. The contiguous zone is an area of 24 nautical miles from any portion of
Australian territory. Within this zone, the Commonwealth has certain legal rights
and responsibilities, particularly in relation to people smugglers and asylum
3.41pm the commander of the Arnhem Bay, Bradley Mulcahy, addressed the Sumber
Lestari by loud hailer, requiring it to heave to so that a warning notice could
be issued. There was no change in course or speed so the captain directed a boarding
party to go by tender to the Sumber Lestari and hand a notice in Indonesian to
the ship's company. This was effected at about 3.56pm when the notice was accepted
by a person on board the Sumber Lestari who then handed it to a person in the
after the notice was delivered those aboard the Sumber Lestari were addressed
by one of their number, who spoke to them on the foredeck. This person appeared
to be one of the asylum seekers rather than a member of the crew. Those on board
seemed to respond to what that man had to say by taking up position on the foredeck
and putting on life jackets. Preparations to disable the Sumber Lestari also appear
to have been made during this period with noise travelling to the customs vessel
suggesting that those on board were endeavouring to incapacitate it.
about this time, (4.30pm) the HMAS Woolongong, a 45 metre patrol boat, arrived
in the vicinity and took position off the Sumber Lestari's starboard quarter.
It had orders, once the Sumber Lestari had passed into the Australian contiguous
zone, to board the vessel and take it to Ashmore Island so that those on board
could be appropriately processed.
commanders of both the ACB Arnham Bay and HMAS Woollongong seemed to have been
deeply concerned that a SOLAS (Safety of life at Sea) situation may arise. Their
concerns seem to have arisen as a matter of common sense, past experience and
what they could objectively observe.
commanders noted that objects were being thrown over the side of the Sumber Lestari,
that fuel was being pumped overboard, that there was hammering emanating from
the hull and that some of the material jettisoned overboard consisted of planking
that was of the same colour as the Sumber Lestari's hull and deck.
logical inference that both captains drew was that those on board the Sumber Lestari
were preparing to damage or sink their vessel thereby forcing the Australian authorities
to rescue them and process them as asylum seekers, rather than force their vessel
back to Indonesian waters thereby frustrating their attempt to be being dealt
with as refugees.
Commander Heron, commander of the HMAS Woollongong, who was preparing to deploy
a boarding party to take control of the Sumber Lestari and to prevent a SOLAS
situation developing, had real reason to be concerned that he was sending his
crew into a hostile environment. He had been advised that a knife sheath had been
thrown overboard from the Sumber Lestari and recovered by the crew of the Arnham
Bay. Notwithstanding the risk to his own personnel he ordered them to approach
the Sumber Lestari and board it.
boarding party, under the command of Lieutenant Commander Robert McLaughlin, approached
the Sumber Lestari at about 4.48pm. The first four members of the boarding party
succeeded in getting aboard the Sumber Lestari and were making their way towards
the bridge to take control of the vessel. Very shortly after they arrived, and
before they were able to reach the bridge, an explosion took place in the forward
hull. This occurred at approximately 4.49pm. Smoke was very quickly thereafter
noted to be pouring out of the hold.
explosion caused panic amongst the crew and passengers on board the Sumber Lestari.
The crew appeared to abdicate all responsibility for the situation and did nothing
of any significance to assist their passengers. Furthermore their vessel was particularly
ill equipped to respond to a disaster situation. It lacked any basic safety systems
such as fire fighting equipment and life rafts. Furthermore the life jackets that
the crew had handed out at the beginning of the voyage were largely of a poor
noted the explosion caused panic amongst those on board, most of whom jumped into
the ocean with whatever additional means of buoyancy they could lay their hands
on. This included the two deceased, Fatimeh Husseini and Nurjan Husseini.
the Arnhem Bay and the Woollongong launched tenders to uplift the survivors. Within
a period of approximately 30 minutes all 164 people who had been onboard the Sumber
Lestari had been recovered. [Note : It would appear from records that this period
may have been closer to 50 minutes, the Arnhem Bay log records at 1650 "persons
in water" and at 1743 "all persons out of the water"]. Two young children who
were taken on board the Woollongong, required medical assistance, but recovered.
two women did not survive the ordeal.
Husseini - approximately 55 years of age.
Husseini was an elderly woman fleeing from Afghanistan in search of asylum in
and her family had made a lengthy and expensive trip from their remote village
in Afghanistan to Surabaya, Indonesia where they joined the Sumber Lestari. This
trip had been arranged by a series of people smugglers along her route.
the explosion on board the Sumber Lestari her family, with whom she was travelling,
lost sight of her.
appears that wearing a life jacket, she had preferred to take her chances in the
water rather than risk staying on board the fatally wounded Sumber Lestari.
was seen in the water by another asylum seeker, a young man, by the name of Ali
Reza Sadeqi, who noted that her life jacket was supporting her face down in the
water and that she was not moving.
very bravely swam towards her, pulled her face out of the water and noticed she
was not breathing. Mr Sadeqi, to use his own words, "pushed her chest and tummy
in". Some foam and water came out of her mouth and he says that he thought she
started to breathe but could not speak. Mr Sadeqi, together with Mrs Husseini
made his way slowly towards the Arnhem Bay. He was struggling to hold her up and
to keep her head out of the water and believes that Mrs Husseini was breathing.
reaching the boat, at about 5.10pm, Mrs Husseini was hauled aboard by the captain,
Bradley Mulcahy with the assistance of Ivan Carapina. They were joined by a level
2 officer, Arthur Mahoney, who conducted a medical check and determined that Mrs
Husseini had no pulse and was not breathing. Officers Mahoney and Carapina initiated
CPR and EAR in an attempt to resuscitate Mrs Husseini. Their efforts were not
rewarded and ceased after approximately 14 minutes - at 5.24pm. This was after
a medical orderly from the Woollongong, Petty Officer Craig Duff, had boarded
the Arnhem Bay and determined that nothing more could be done to assist Mrs Husseini.
Husseini - approximately 20 years of age.
Mrs Nurjan Husseini - who appears to have been unrelated - Fatimeh Husseini had
fallen into the hands of people smugglers who had promised to transport her and
her husband Seyyed, from their remote village in Afghanistan to Australia. Theirs
was a lengthy and expensive attempt to reach our shores.
the explosion Mr Husseini urged his wife, who was wearing a life jacket, to jump
into the water but she was scared and crying and told her husband that she wouldn't
and that she was afraid.
position was plainly unsafe and one of the members of the boarding crew urged
them to jump into the water. This seemed to overcome Fatimeh's reluctance and
she and her husband jumped into the water together, holding hands. After jumping
in they became separated and Mr Husseini did not see his young wife alive again.
of the navy tenders sighted Fatimeh's body in the water. She was wearing an orange
life jacket which was fitted loosely. She was supported on her back with water
just covering her face. Able Seaman Daniel Walsh, with the assistance of some
of the asylum seekers who had already been recovered by the tender, hauled Fatimeh
on board. Mr Walsh put Fatimeh into the recovery position and checked her airways.
As he did this approximately one litre of white froth and water was expelled from
her mouth. He checked for signs of breathing or chest movement but detected none.
Similarly, he checked for a carotid pulse and radial pulse to no avail. As a precaution,
he again checked the carotid pulse and suspected he had felt a faint indication
tender quickly made its way back to the Woollongong during which time Mr Walsh's
suspicion of an 'indication of life' was radioed back to the Woollongong so that
its medical personnel could prepare themselves and be on standby. After that radio
message was transmitted but before the tender arrived at the ship Mr Walsh again
checked the carotid pulse - the only indicator of life - and found that there
was none. He noted that her skin was cold, very pale, almost white.
body was taken on board the Woollongong where she was taken into the wardroom.
Extensive efforts to resuscitate her were carried out by Messrs Mooney and Zanker,
including CPR, EAR and the use of the oxy viva. Their efforts were unsuccessful
and ceased at 5.49pm, 28 minutes after arriving on the Woollongong (5.21pm).
four Indonesian crew members were transported to Australian territory where they
were successfully prosecuted for people smuggling. They received sentences ranging
from 9 months for a junior crew member to seven years six months imprisonment
for the Captain, Mr Beli, a repeat offender. The surviving asylum seekers were
split into two groups; one of which stayed on Chrstimas Island whilst the others
were transported to Nauru".
Inquest was held in order to examine the circumstances of the deaths and to receive
evidence in relation to a number of issues relating to those deaths.
The Sumber Lestari -
Photograph taken on 8 November, 2001 (Exhibit "6(3)")
ACV ARNHEM BAY
Thursday 8 November, 2001 the Australian Customs Service Vessel ACV Arnhem Bay,
which had been in the Ashmore Island group, departed an outer lagoon for a patrol
to the north of the Ashmore Islands.
2:52pm radar contact was made with a vessel which subsequently was discovered
to be the Sumber Lestari.
ACV Arnhem Bay proceeded to investigate the vessel and at 3:20pm the vessel was
sighted. The Sumber Lestari was identified as an Indonesian motorized wooden hulled
vessel, approximately 20 metres in length. With the use of binoculars the name
"Sumber Lestari" was made out on the front of the bridge.
that stage Officer Mulcahy, the Commanding Officer of the Arnhem Bay, could see
approximately 40 persons, most of whom were wearing life jackets, on the forward
section of the Sumber Lestari. More persons could be sighted inside the vessel.
3:41pm Officer Mulcahy used a loud hailer and called out to the vessel requiring
it to heave to for the issue of a warning notice.
vessel continued heading towards Ashmore Islands at approximately 6 knots.
3:46pm one of the tenders on the Arnhem Bay was lowered and went to the vessel
with a warning notice was handed to a person on the boat. The warning notice advised
that it was an offence to bring persons illegally into Australia and that the
vessel should turn back.
about 4:13pm the HMAS Woollongong came within sight.
about 4:16pm a Rigid Hull Inflatable Boat (RHIB) was launched from the Woollongong
and approached the Sumber Lestari.
the arrival of the customs vessel in its vicinity the Sumber Lestari had accelerated
and increased it speed to about 7 knots. At 4:34pm its engines stopped and diesel
fuel could be seen being discharged from the portside of the vessel leaving a
slick trailing into the sea. It would appear that this diesel had been pumped
out through the bilge.
that stage the vessel was not in the Australian Contiguous Zone, but at 4:48pm
information was received that the vessel was within the Contiguous Zone and the
HMAS Woollongong boarding party moved alongside of it.
this period Customs Officer Arthur Mahoney recorded many of the events using a
approximately 4:50pm the vessel was seen to be on fire and people from the vessel
were seen jumping into the water.
Australian Customs Vessel tender, which was nearby at the time, commenced retrieving
people from the water and immediate steps were then taken to launch the second
Woollongong tender returned its boarding party to the Woollongong, after which
it returned to where people were in the water and assisted with saving persons
who were in the sea.
Mulcahy directed one of the customs tenders to proceed to the burning vessel to
remove any person remaining on board.
Mulcahy also positioned the customs vessel, ACV Arnhem Bay, so that it was in
the line of persons drifting in the sea.
customs tenders and the HMAS Woollongong tender continued retrieving people from
the water and placing on the two larger vessels while a number of persons were
retrieved from the sea directly onto the main customs vessel where Officer Mulcahy
was stationed on the aft platform.
about 5:10pm Mr Ali Sedequi with Mrs Nurjan Husseini arrived at the side of the
customs vessel and Officers McCulahy and Carapina pulled her out of the water.
McCulahy called out to Officer Mahoney, who had completed advanced first aid training,
to assist and he called out that there was no pulse or breathing. CPR was commenced
on the dive platform and subsequently Officers Mahoney and Carapina moved Mrs
Husseini onto the aft deck where they continued with CPR.
attempting to assist the deceased on the dive platform, Officer Mahoney noticed
that there was a continual stream of fluid coming from her mouth.
Mahoney requested assistance by radio from a medic from HMAS Woollongong and at
about 5:23pm Petty Officer Duff from the HMAS Woollongong arrived. Petty Officer
Duff had significant medical training and experience and at 5:24pm instructed
Officer Mahoney to cease CPR.
Officer Mahoney had completed a senior first aid course and an advanced CPR course,
he had not previously been required to perform CPR in an emergency and so, although
he believed that the lady on whom he was working was dead on arrival, he continued
with every effort in the hope that she might be resuscitated.
the case of Officer Carapina, when the deceased was first moved on the deck he
looked for a face mask to assist with EAR within the vessel, but could not locate
one. While he was looking for the face mask, Officer Mahoney conducted EAR and
THE HMAS WOLLONGONG
the time of the incident, the Commanding Officer of the HMAS Woollongong was Lieutenant
Commander Wesley Heron. The HMAS Woollongong is a Fremantle Class Patrol Boat.
about 4:13pm Lieutenant Commander Heron gained visual contact with the Sumber
Lestari and Arnhem Bay and at about 4:20pm the vessel took up position at the
Sumber Lestari's starboard quarter.
4:45pm Lieutenant Commander Heron received orders that they should board the Sumber
Lestari and secure the engine room in order to take the vessel to Ashmore Island.
The information was relayed to the boarding party under the leadership of the
Executive Officer, Lieutenant Commander Robert McLaughlin.
the boarding party were approaching the Sumber Lestari in their RHIB they observed
fuel being pumped over the side of the vessel with a large rainbow slick covering
the area around it.
also observed objects being thrown over the starboard side.
Commander McLaughlin heard hammering noises coming from the Sumber Lestari as
he approached it and several large planks of wood were thrown into the sea.
boarding party experienced considerable difficulties in attempting to board the
vessel because at that stage its engines were not going and it was side on to
the sea and rolling heavily. In addition there was temporary planking above the
deck of the vessel with planking over the access point.
Lieutenant Commander McLaughlin finally reached the deck of the vessel he saw
smoke coming out of a large access space in the middle of the forecastle which
lead down to an empty hold. He dispatched Petty Officer Phelp, another member
of the boarding party and an engineer, to go to the hold to determine what was
happening with the engines. When Petty Officer Phelp had gone 2-3 steps down the
ladder, there was an explosion in the hold, and the amount of smoke began to increasing
markedly. At that stage Petty Officer Phelp was immediately taken off the ladder
and brought back on deck.
that time there was a large amount of black smoke and a fire developed rapidly.
number of persons on the vessel then began to panic and rushed to the starboard
side of the vessel, which began to list dangerously to starboard. Some persons
jumped overboard at that time.
Commander McLaughlin became extremely concerned that the vessel would capsize
and he instructed other officers to herd some of the people over to the port side.
about that time Able Seaman Walker, another of the boarding party, found two large
containers of water and efforts were made to penetrate the containers in an attempt
to flood water into the hold to fight the fire. Unfortunately these efforts were
smoke began increasing and became thicker and darker. Large flames were also visible
in the hold.
that stage approximately two thirds of the passengers had left the Sumber Lestari
and the smoke had become quite choking. Lieutenant Commander McLaughlin determined
that the boarding party should leave the vessel and Petty Officer Yardley, another
of the boarding party, called "Recoil" - the code word for an emergency
extraction of a boarding party - into the radio.
naval officers kicked down part of the forward railing to assist with speedier
evacuation of the vessel and then jumped into the water and swam to the RHIB.
all members of the boarding party (6) in addition to the driver of the RHIB and
the bowman and one person from the vessel were on board, the RHIB returned to
the HMAS Woollongong where the boarding party disembarked and Lieutenant Commander
McLaughlin, together with two other officers, took the RHIB back to collect people
out of the water.
my view the action by the boarding party in taking some time to remove timber
boards from the sides of the ship to assist passengers to leave the vessel, in
attempting to calm the passengers and give them advice in relation to jumping
into the water and re-directing them within the vessel and in attempting to release
water and to generally save the vessel, demonstrated considerable courage and
concern for all of those on board. Particularly in circumstances where there was
a concern that efforts may have been taken to sabotage the vessel, there was certainly
an element of risk to life in carrying out these activities which were performed
to save those on the vessel.
THE LAUNCHING OF THE LIGHT UTILITY
BOAT (LUB) AND EFFORTS TAKEN TO SAVE FATIMEH HUSSEINI
HMAS Woollongong had two tenders, one the RHIB, which had soft sides of inflatable
rubber and which was able to pick up persons from the water quickly, and a light
utility boat (LUB). The LUB was an aluminium sided vessel, which was not well
suited for retrieving persons from the water. The LUB had relatively high sides
and was also relatively unstable when efforts were being made to pull a person
out of the water.
LUB was a suitable tender for use in reef conditions where its strong sides would
be of advantage, but it was not well suited to a rescue operation in open seas.
LUB was also relatively difficult to launch because of its location on the HMAS
a period, however, a decision was made that officers could be released from other
tasks to launch the LUB which was then used to assist the other tender vessels.
4 people were recovered from the sea onto the LUB when Fatimeh Husseini was located,
at that stage on her back with water just covering her face.
Husseini (the deceased) was loosely wearing an orange life jacket.
Seaman Walsh pulled her onto the LUB with the assistance of one of the passengers
from the Sumber Lestari and when she was on the LUB he checked her airway. At
that time approximately 1 litre of white froth and water came from her mouth.
was no chest movement and no evidence of a carotid pulse. Able Seaman Walsh checked
for a radial pulse without success although at one stage he believed that he may
have felt a faint radial pulse. He then again checked for a carotid pulse without
LUB then proceeded back to the HMAS Woollongong where the deceased was recovered
onto the ship using the recovery strop.
and EAR were then provided to the deceased by Officers Zanker and Mooney and on
his return to the HMAS Woollongong Petty Officer Duff also attempted to assist
her. The deceased at that stage was unconscious with no breathing or pulse detected.
Resuscitation had been attempted for some 20 minutes by the time of Mr Duff's
Duff arranged for an officer on board the HMAS Launceston to be contacted for
guidance and he was advised by that officer, Officer Plant, that he should recommend
to the Commanding Officer that resuscitation should cease. On receipt of that
advice a decision was made to cease resuscitation which took place at 5:45pm.
LUB subsequently broke down, after having gone out to retrieve persons from the
water on only two occasions.
THE EVIDENCE OF ALI SEDEQUI, SAYYED
HUSSEINI & MUSSA HUSSEINI
Sedequi gave evidence essentially along the lines outlined by counsel assisting
in his opening speech.
spoke of his own past history which included serious mistreatment directed towards
him by the Taliban in Afghanistan, after which he had travelled to Iran, Malaysia
Sedequi had been living out of Afghanistan for almost a year until the time when
he went on the Sumber Lestari to travel to Australia.
Sedequi had purchased his own life jacket, having heard news of another incident
when a boat had sunk causing considerable loss of life.
Sedequi was not aware of any efforts to sabotage the Sumber Lestari and he stated
that he did not believe that the fire had been started deliberately. In his view
to start such a fire deliberately would be insane because of the amount of fuel
which was stored on the vessel.
Sedequi claimed that the Navy Vessel had cut off their boat by coming across directly
in front of it and he also claimed that the canon on the Navy boat had been turned
towards their boat [t.316].
evidence was inconsistent with the evidence of Lieutenant Commander McLaughlin
who indicated that it would not be sensible seamanship to cut across the bows
of another vessel and who stated that no naval officer was manning the gun at
the time [t.425].
do not accept Mr Sedequi's evidence on this point, particularly in the light of
the evidence of Lieutenant Commander McLaughlin and the evidence of a number of
other witnesses as to the paths taken by the various vessels.
Sedequi also claimed that he was in the water for at least 1 hour and that for
a period of 30-40 minutes no effort was made by Naval or Customs Officers to save
persons in the water.
the light of detailed evidence as to the timing of events I do not believe that
Mr Sedequi was in the water for a period as long as 1 hour and while there might
have been some short delay before the process of rescuing persons from the water
commenced, I do not believe that there was any delay in the order to 30-40 minutes.
should be noted that 164 people including children were lifted from the water
within a period of about 50 minutes. It should also be noted that the task would
have been made particularly difficult because of the fact that a number of persons
in the water were panicking and very few appeared to have been able to swim.
is clear that the experience would have been a particularly unpleasant and frightening
one for Mr Sedeqi and this factor may have made the time which he spent in the
water seem much longer than it was actually was.
position in relation to Mr Sayyed Husseini and Mr Musa Husseini, who both gave
evidence, was a particularly sad one as both men have lost persons very dear to
them and have gained nothing as a result. Both are to be returned to Afghanistan.
Mr Sayyed Husseini's case he lost his wife to whom he had been married for 1
years before they left Afghanistan.
Musa Husseini has lost his mother.
is clear that both men were mislead as to the condition of the vessel on which
they were to travel to Australia. Mr Musa Husseini had been told that the vessel
was a very good boat and that they would be provided with food and excellent amenities.
fact the boat was leaking from the outset, there was not enough food and no bedding.
jackets were provided by the crew of the vessel to the passengers but these were
clearly of very poor quality.
life jackets, one of which was viewed at the Inquest hearing, were inadequate
with very poor floatation qualities and provided little assistance to those in
would also appear that both of these witnesses had received confused messages
as to what to expect in Australia, and did not expect to be detained and sent
back to Afghanistan. Both would never have attempted the terrifying and disastrous
voyage in question had they been accurately informed as to the situation.
THE CAUSE OF THE FIRE
is a body of evidence which would suggest that the fire was deliberately lit.
is also the evidence of Mr Beli, the Captain of the Sumber Lestari, who claimed
that he was in the wheelhouse with the other Indonesians when the Australian ships
intercepted the Sumber Lestari and that passengers surrounded them. He said that
he believed that some of the passengers damaged the engine and also damaged his
magnetic compass. He claimed that he saw the engine battery being thrown overboard.
Beli believed that the fire started in the engine room and he believed that one
of the passengers must have started it.
Beli was not called as a witness and he clearly had good reason to provide an
account favourable to himself.
was also evidence to the effect that a father of children who were assisted after
the incident, who had been a passenger, told Petty Officer Duff that the fire
had been started by Iranians.
the other hand, after the incident one of the persons from the vessel told Petty
Officer Bosan Yeardley "Iraq set boat on fire not Afghan [sic]".
particular relevance in this context, however, is the timing of the events. It
would appear that as soon as the Naval Officers commenced to board the vessel,
the fire broke out.
is also particularly relevant that the engines of the Sumber Lestari had not been
going for about 15 minutes when the fire broke out and so heated engine points
were unlikely to be the ignition source of the fire.
it was the evidence of Officer Zanker that the flash point for diesel vapour is
61.50C, a much higher surface temperature on any metal machinery would be required
to ignite diesel vapours.
testing conducted in relation to another vessel, while a flash point for diesel
stored on that vessel was determined as 710C, fuel in contact with a metal box
did not ignite until it had reached a temperature of 3100C or higher.
would seem very likely, therefore, that a fire was deliberately started. Whether
or not the fire was intended to ignite diesel stored on the vessel and cause a
very dangerous situation for all on board is another question.
is very clear, however, that the families of the two deceased women were not near
the engine room at the time when the fire started, none of those family members
had anything to do with the fire and it is further clear from the evidence of
Mr Sayyed Husseini and Mr Musa Husseini, that none of their family members would
have had any part in such an action.
the Sumber Lestari was deliberately set on fire, it is clear that the person who
did so had little regard for the safety of those on the boat, particularly in
a context where there was a large amount of fuel stored on board.
8 November, 2001 the two deceased women, Nurjan Husseini and Fatimeh Husseini,
died as a result of Immersion.
cause of death in each case was determined following post mortem examinations
conducted on 16 November, 2001 by forensic pathologist, Dr K A Margolius, who
concluded that the medical cause of death in each case was Immersion.
women came from Afghanistan and had not learned to swim.
deceased persons were forced into the water as a result of the vessel on which
they were travelling to Australia, the Sumber Lestari, having caught fire. While
it would appear that the fire on the vessel may have been deliberately lit, neither
woman had any part in lighting the fire and both were innocent victims.
crew members on the Sumber Lestari had provided both women with deficient life
jackets, there were no life rafts on the boat and the crew did nothing to assist
after the fire started. The attitude of the people smugglers involved to the passengers
on the vessel was grossly irresponsible.
the case of both deceased persons, their bodies were recovered relatively shortly
after their deaths and every effort was made to resuscitate them by Naval and
Federal Police are still conducting investigations to determine who, if anyone,
caused the fire and whether charges relating to the deaths may be laid.
these circumstances it is possible that the deaths arose by way of unlawful homicide
or by way of accident and I make an Open Finding as to how the deaths arose.
COMMENTS AS TO SAFETY ISSUES
the deaths there have been reviews conducted both by the Australian Customs Service
and the Royal Australian Navy into the events and a number of lessons appear to
have been learned.
AUSTRALIAN CUSTOMS SERVICE
16 November, 2001 Officer Mulcahy, the Commanding Officer of the AVC Arnhem Bay,
prepared a document (Exhibit "8") reviewing the events and making a number of
following issues are some of those identified by Officer Mulcahy -
1. A larger scramble net
large number of the persons who were saved from the water were women, children
or frail persons who had difficulty embarking on the Arnhem Bay.
was Officer Mulcahy's view that a larger scramble net than the one carried at
the time would have assisted in bringing those persons onto the vessel.
Pocket Face Masks
Carapina looked for a face mask and was unable to locate one at the time when
CPR and EAR was being conducted on Nurjan Husseini. Face masks of this type offer
protection to the user and assist in the provision of air.
was the recommendation of Officer Mulcahy that pocket face masks should be provided
in easy access areas around the vessel.
The Crew Structure
was Officer Mulcahy's view that a minimum of 10 and possible 12 fully trained
crew were required to carry out rescue procedures. The ACV Arnhem Bay had 9 crew
at the time who experienced difficulties in a situation when there were 2 tenders
in the water and other officers were involved in the retrieval of persons directly
from the water onto the vessel.
secure short range portable communication system which would be compatible on
both Royal Australian Navy and Australian Customs Vessels would assist in allowing
for reliable and secure communications during emergencies and should be used.
Particularly in a context where there is regular communication between these organisations
on combined operations, such a system would of obvious benefit.
Man Overboard Drills
overboard drills, involving simulated mass rescue, would be of assistance, particularly
if both Naval and Customs officers were to be involved.
of these recommendations appear to be very much merited by the events of 8 November,
2001 and their implementation is supported.
THE ROYAL AUSTRALIAN NAVY
number of safety recommendations after the event were identified by Lieutenant
Commander Heron of the HMAS Woollongong in a paper entitled "Observations and
Recommendations" [Exhibit "21"], most of these recommendations have already
been implemented. The recommendations in part were -
That life jacket toggle langyards be lengthened on Naval Life Jackets because
in the incident toggles worked back into the jackets and were difficult to pull
causing problems for members of the boarding party in inflating their jackets.
That a two piece lightweight boarding suit should be prepared for use by boarding
parties which would replace present heavy overalls and boots which caused problems
when members of the boarding party had to jump from the Sumber Lestari into the
sea and swim to the RHIB.
That the communication system be improved using a system which would work after
being immersed in water and could be easily clipped onto webbing leaving hands
free for boarding parties.
That the number of medical oxygen cylinders be increased because at the time of
the incident there were only 4 oxygen bottles available on board, which required
prudent management in the event that a number of casualties would require oxygen
That the second tender, the LUB, should be replaced by a boat more suited to recovery
of persons from the water. This has in fact already taken place and a zodiac has
replaced the LUB.
That there should be more interaction between Customs and Naval Officers during
exercises, particularly exercises directed to mass rescue operations.
each of these recommendations was merited by the evidence and to the extent that
they have not yet been implemented, I support the taking of action to ensure their
COMMUNICATION WITH FAMILIES
Mr Sayyed Husseini and Mr Musa Husseini had no real criticism of the Australian
Navy or Customs Service in relation to the rescue operation and were grateful
for small kindnesses which had been provided to them on their arrival in Australia,
Mr Sayyed Husseini did, however, express concern about the length of time involved
before he was notified about the death of his wife and also as to the manner in
which that information had been imparted to him [t.386-387].
I accept that the priorities for Naval and Customs officers concerned at the time
related to the safety and health of those who had been rescued and there were
a large number of tasks required of them including provision of food, clothing
etc it is possible that the great distress which was being experienced by Mr Sayyed
Husseini at the time was not fully appreciated or given sufficient priority.
such a tragic event, efforts tend naturally to be directed towards helping the
living, but it needs also to be appreciated that a person in a position of Mr
Sayyed Husseini may suffer considerable distress while waiting for news of a loved
In all other
respects both gentlemen were grateful for the efforts which had been made on their
SUBMISSION ON BEHALF OF THE HUMAN
RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION TO THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS
written submissions on behalf of the Human Rights and Equal Opportunity Commission,
which were supported by written submissions prepared on behalf of the families
of the deceased, placed emphasis on article 6 of the International Covenant on
Civil and Political Rights which provides that -
human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life".
submission also emphasised that article 6 enjoins the State not only to refrain
from intentional and unlawful taking of life, but also to take appropriate steps
to safeguard the lives of those within its jurisdiction.
the present case it is my view that whether or not officers of the Australian
Customs Service or the Australian Navy were aware of the specific terms of the
Convention, their actions demonstrated that they treated the importance of human
life as paramount.
approach to the events of 8 November, 2001 is exemplified by the actions of the
boarding party of the HMAS Woollongong who, while on board the Sumber Lestari,
risked their own lives in contributing to the preservation of lives of the people
on board the vessel.
though members of the boarding party were aware that the ship was burning and
there were obvious dangers associated with the fire rapidly spreading and there
was the possibility of a major explosion on the vessel or the possibility that
the vessel might sink or roll, they remained on the vessel making attempts to
douse the fire, taking action to prevent the capsizing of the vessel, moving planking
from the side of the vessel so as to give passengers access to the water, assisting
passengers into the water and remaining to ensure that passengers were able to
abandon the vessel for the water in reasonable safety.
addition, actions such as those of Officer Mahoney on the Arnhem Bay in continuing
with mouth to mouth resuscitation, even when a face mask could not be located,
showed a strong desire to do everything possible irrespective of any risk to himself.
the other hand, this case has highlighted the fact that people smugglers may demonstrate
scant regard for human life. In this case those involved in the people trafficking
activity were prepared to place a large number of persons on a leaking vessel
with little shelter, inadequate food, unsafe life jackets and no life boats.
was contended on behalf of the Commission that the Commonwealth had not taken
sufficient positive measures to protect the lives of asylum seekers upon the Sumber
Lestari prior to the fire starting on the vessel.
was suggested, for example, that Lieutenant Commander Heron could have launched
the second tender (the LUB) at an earlier stage and before the fire started. Lieutenant
Commander Heron in his evidence, however, pointed out that he had limited resources
to support both the boarding party and have the LUB in the water.
was also contended that the RHIB should not have returned to the HMAS Woollongong
with only the boarding party and one other person, but rather should have picked
up other persons from the water first.
these points may appear to have some academic attraction, the practical reality
of the situation, in my view, called for the actions taken by the Navy in order
to ensure that there was not great loss of life.
the boarding party had not been properly resourced, the Sumber Lestari may well
have capsized or may have sunk with many passengers still on board causing a large
number of deaths.
the RHIB had not been returned to the Woollongong without delay, the officers
who were returned to the vessel would not have been able to assist generally with
the rescue efforts and there would have been further delays involved. In addition,
it was particularly important to ensure that the RHIB was not capsized at that
early stage and was able to save persons from the water in a safe manner. If the
RHIB had been capsized, there would have been very major problems encountered
in the rescue operation.
operating instruction relating to this action, which was applied, appears to be
designed to maximise rescue efforts by ensuring that these are not hindered by
having to rescue the rescuers.
this context it should also be noted that the speed with which all on board the
Sumber Lestari were placed in danger could not have been reasonably expected.
It would appear tht the Sumber Lestari was the first of such vessels involved
in people trafficking to Australia to be affected by an explosion and sudden destructive
while attempts to sabotage the boat may have been expected, if the fire was deliberately
lit and not caused by some unknown and unusual source, then whoever lit the fire
must have acted in a remarkably reckless or stupid manner both in relation to
his or her own life and in relation to the lives of all on board.
was contended on behalf of the Commission that if vessels being operated by people
traffickers are to be intercepted, Naval and Customs vessels involved in such
interception should be well equipped to deal with potential incidents, possibly
involving large numbers of persons being forced into the sea.
was submitted that essentially the two Australian vessels were inadequate for
this purpose in that the Arnhem Bay carried two RHIB's and the HMAS Woollongong
only 1 RHIB and a LUB which was relatively ineffectual for the purposes of rescuing
persons from the sea.
was further noted that the Arnhem Bay was licensed to carry only 28 persons and
the HMAS Woollongong 30 crew members and approximately 66 other persons. The total
capacity for both vessels, therefore, was 124 persons, less than the number of
asylum seekers rescued from the Sumber Lestari.
it is possible that as Lieutenant Commander Heron suggested in his paper entitled
Observations and Recommendations [Exhibit "21"] the HMAS Woollongong could handle
more than 66 passengers, the fact remains that in the context, both vessels were
The HMAS Woollongong and the
ACV Arnhem Bay, photograph taken shortly after the rescue had been effected [Exhibit
the evidence in relation to operational matters at the Inquest hearing was limited,
there was a reference to the possibility of other "assets" being available to
assist in the interception of the Sumber Lestari.
detailed information in relation to resources available to the Australian Customs
Service and the Australian Navy, it is not possible to make specific comments
or recommendations in this context, but it is noted that for the purpose of the
interception of major people trafficking activities, there are obvious benefits
in using larger vessels with a number of tender vessels suitable for conducting
13 December, 2002
updated 19 May 2003.