From the silent voice of death come the soundest lessons in life
baker v jean bryant fisheries and arthur markellos PENALTY 2010.pdf JACK SALVEMINI

I never met Giacomo (Jack) Salvemini but I would have loved to have had the chance to meet him when he was alive. Based on what I have experienced of Jack’s family, they are a gutsy lot.  This family has shown great courage and perseverance in the face of adversity.  Jack would indeed be proud...his father Lee has been relentless in making sure his son’s death was explained and some important questions answered.

The Salvemini family have been involved in fishing our coastlines for over a century. It is most tragic to realise that what bound this family together for so many years has now become a focal point of immense heartache.  Likewise too though, Jack’s father Lee has almost 5 decades of experience in fishing himself.  This in itself created a quandary - he knew this industry too well.  He understood the mechanics of the shark reel and the system of shark fishing like the back of his hand. He knew the defendants too - the once were regarded as friends but now as they fiercely defend themselves in the South Australian Industrial Courts, that friendship has been poisoned.

Jack was killed on a shark fishing boat on November 1st 2005. He was a deckhand on the ‘Jean Bryant’ and based on the evidence of the trial, he was pulled into the shark reel when a section of the net rope caught him around the neck as it was being retrieved by the huge spool. The controls were in the wheelhouse and the skipper, Arthur Markellos was at those controls. Jack received horrific and fatal injuries as the powerful spool pulled him in through the spreader bar and onto the drum.  His body was forced through a gap not much more than 14 cm wide.

The Jean Bryant was classed as a business or company in its own right - Jean Bryant Fisheries Pty Ltd. The same people who operated and owned the Jean Bryant also own several other fishing boats, all under their own company profile.  These same people also operate a very lucrative fish processing and sales outlet venture called ‘The Fish Factory’.

Both the company, Jean Bryant Fisheries Pty Ltd and the skipper, Arthur Markellos were charged with failing their duty of care under the OHS&W ACT 1986.  Both defendants opted to go to trial pleading not-guilty to those charges.  The trial dates were spread over a period of no less than 6 months and after an extraordinary length of time of a further 8 months, Magistrate Hardy finally handed down his verdict on the 2nd July 2010 finding both defendants guilty.

Add another 2 months wait for Plea Submissions. In September 2010, Jean Bryant Fisheries attended the SAIRC but Arthur Markellos was noted absent. This defendant’s plea submissions had to be rescheduled for October.

Now all you have to do is count and it becomes obvious that the courts and this wonderful legal system has once again pushed a family to the extreme devouring no less than 5 years of their already tested patience...and of their faith in our legal system.

The parents of Jack, Lee and Carol had submitted Victim Impact Statements some years beforehand when the complaint was first laid. Those Victim Impact Statements were well and truly out-dated as the years droned painfully by, so prior to plea submissions, new statements were done and Jack’s brother and sisters added theirs to reflect the on-going impact Jack’s death had on them.

I sat in court in September 2010 with the Salvemini family and listened to the prosecution outline its case.  With a guilty judgement already in hand ) it was now time to hear the submissions on the penalties.  The hearing then went on to the process of Victim Impact Statements - and once again we held our breath waiting to hear whether the Magistrate would allow them to be read out in the court room.  The defence, once again suggested its position was to place that decision before the Magistrate and so it was that the court would allow this to go ahead.

Each and every statement that we heard read out profiled in detail just how much this family has struggled.  The dynamics of the Salvemini’s had been adversely impacted and it is all attributed to the death of Jack and the way those responsible conducted themselves from the time it happened until this day in court.

I looked around to see what the ‘defendants’ were doing as these Victim Impact Statements were being heard.  I saw only vague expressions.  It was difficult to know whether they were actually listening or had switched off.  Either way...these people blew their opportunity to show empathy and remorse a long time ago.  

Something that I know bothered Lee a great deal during the long trial was the conflicting evidence he’d heard in relation to when and where Jack was killed.  I spoke to Lee many times during the trial and it was very clear that he was getting angrier.  Ironically this long awaited trial - which is supposed to deliver answers and clear up many of those ‘unknowns’ - in this case, created more confusion.  

It is maybe understandable for those not directly living a tragic loss like this to suggest that Lee Salvemini was in need of counselling.  Of course there was no doubt in my mind that Lee was deeply affected by Jack’s death from the day it happened but I also believe as the years dragged on with this matter, things became progressively worse.  If I thought for one moment that sitting Lee in front of a psychologist would fix that, I would have dragged him there myself.  However, having lived something not too different in my own son’s death, I suspected the only thing that would help this man was to have ‘things’ make sense - to be able to join the dots and be satisfied that they actually do link up.  Until this happens, the mind is awash with more questions - why don’t these things link up?  Good question Lee ... Why don’t they?

Lee often said, “I may not be a well-educated man, but I know fishing and I know when things don’t add up...” and this is precisely why Lee was pushing so hard to be heard.  I totally understand why he began to lose his patience. He was hearing that his son Jack had done something wrong.  It’s a grieving parent’s worst nightmare.  It’s so easy to blame the dead and of course we see this constantly in these industrial matters. It’s almost par for the course.

Look, sometimes it’s possible that the deceased worker did make a mistake, but let’s make sure this is proven rather than assumed?  Was this proven in the matter of Baker V Jean Bryant Fisheries and Arthur Markellos?  Was Jack in a no-go zone when he was pulled into the reel? Did a no-go zone even exist predating Jack’s death or was this orchestrated as a means of defence?

So what proof or rather, what evidence was there that showed Jack disregarded safety rules?  Well, there were witness statements....

So who else was on board the Jean Bryant that could bear witness to this tragedy?

The skipper, Arthur Markellos who had control of the reel and was at the time of the incident in the wheel house and had not seen Jack get pulled into the reel because he was looking elsewhere. He of course has been charged with an offence.

Nick Toumazos was the only other deckhand on board - he is the brother of the director of Jean Bryant Fisheries Pty Ltd.  

So here we have the sum total of ‘evidence’ - the only 2 people that could shine light on exactly what happened to Jack Salvemini.  Jack of course can’t speak anymore.

Now I’m not saying these men are lying, what I am saying is that their evidence has to be seen for what it is.  Heck, if the OHS&W act required proof beyond reasonable doubt, then let’s use reasonable common sense and accept that both of these witnesses have a vested interest to point the finger at Jack Salvemini.  The dead have no defence right?  

The defence outlined that some black mats on deck marked a no-go zone. These mats were apparently set out in an area that was regarded as safe zones. The court was told that Jack had ignored or disregarded ‘safety rules’ by moving off those rubber mats.

However, the weather was rough that day and these mats were not fixed, so in effect they could move around the deck. God forbid should a crewman lose his footing due to rough whether!  In fact evidence was given that there were quite a few trip hazards on deck when Police arrived to take photos while the Jean Bryant was moored at Eucla directly following Jack’s death.

Lee Salvemini has always maintained that the reel was running too fast.  In fact, while it was never used in evidence due to hear-say, Jack and his father had spoken about this very reel and this skipper.

The inspector who investigated Jack’s death asked for the reel to be retrieved in an attempt to re-in act the event.  The evidence given suggested that the skipper had trouble getting the reel to run in a slow fashion.  Other evidence in court by an experienced fisherman outlined how vitally important it was for the speed of the reel to run slowly at those closing minutes when the crewman is trying to tuck in the bridle.   

Unfortunately this reel was never impounded or ceased as vital evidence.  It was never tested to identify the length of net, in order to ensure it conformed to regulations.  Had this reel contained more than the legal limit of net, the diameter and speed of that shark reel could have revealed vital safety matters.  It was not properly tested and this is unacceptable considering the cost of life.  

On the 9th of November 2005, 9 days after the incident a SafeWork SA inspector travels back to Eucla where the Jean Bryant was anchored in order to meet the company director in relation to getting the ‘Prohibition Notice’ retracted.  This prohibition notice was placed on the boat due to the serious safety hazards surrounding the shark reel.  This notice could not be removed until it could be shown that these hazards had been rectified.   

The inspector had received a hand written fax from the company – titled Safety Procedures.  Perhaps that illustrates just how poorly planned and spur-of-the-moment the whole attitude to safety was to this employer.  It’s not so much that these safety procedures were hand written as it was that the company director who met the inspector on board, offered significant assurances that all crewmen had been made fully aware and understood those instructions and safety procedures.

On board the Jean Bryant now, the inspector asks for a demonstration - a portion of the net is unwound and the net is retrieved.  The crewman, who is now doing taking over the same job as Jack Salvemini, moved in with the rope and placed himself in exactly the same dangerous location at the spreader bar!  This suggests to a logical mind that in real life retrieval, this crewman (who had worked on this boat before) was doing what was routine and accepted in retrievals. Thus, this man was now at the same level of risk that cost Jack Salvemini his life.  

Does this tell us anything about how well these ‘Safety Procedures’ were understood by the crew?  Would this not be regarded as evidence?  Would this not raise serious doubts that this so called ‘no-go zone’ existed prior to Jack’s death?

What’s more, it was determined that the company could not get safety guarding prepared due to the moored location of the boat (being in a place that would not accommodate engineering work) so in that vein, no safety guarding was added.  Further to this, a minimal improvement of yellow lines did not happen either.  The company argued that the deck was too wet and the paint would not have adhered.  These black mats lingered as the only means to identify a safe working area and we are reminded that they travel the deck as water and weather consents.

Yet the Prohibition Notice was revoked!  If that isn’t the tail wagging the dog, I don’t know what is.  

The Jean Bryant is back out in the water making money and that was the point of that little exercise one supposes. Why wasn’t the Jean Bryant ordered back to the nearest dock to have these safety issues dealt with properly?  What do you think the Police would do in dealing with a vehicle that had resulted in a death due to worn tyres - would the Police allow that car back on our roads without making sure the vehicle was safe? One might assume that vehicle would not only be defected, it would be impounded!

Drawing another analogy - the driver of the above vehicle would very probably be tested for drugs and alcohol.

What is astounding here is that the only person ever tested for alcohol or drugs was Jack Salvemini.  The Police in attendance did not test the crew...and the question has to be, why did this not take place?  Why is it not common practise to run some basic tests to ensure those operating plant are not placing others in danger?  In assessing the cause of any death, surely one would want to rule out the possibility that those who have control over equipment are not affected by any mind altering drugs.

I don’t envy the job of the Crown - they have a high burden of proof in these matters and their resources are far from ideal.  I also believe in the guys who run these investigations - I believe most are a passionate lot who live and breathe workplace safety.  The problem I suspect is that they are often confronted with much specialised equipment and to some degree, are guided by those actually being investigated in order to educate them on how the plant works.  That seems so very improper in its own right!

There are just too many opportunities for a defence lawyers to omit evidence here.  That’s just how criminal law works.  For example: a statement withheld because its content was classed as hear-say.  This statement made by a witness who spoke with the deceased shortly before his death.  The content of that statement outlines concerns about safety - a direct conversation with Jack Salvemini - inadmissible  as evidence.

We heard in court how the skipper of the Jean Bryant, Arthur Markellos was experiencing emotional trauma over what happened to Jack Salvemini.  We heard a lot about how financially strained he was as his legal representation pleaded for a non-pecuniary fine.   We also heard the prosecution dispute some of this financial information in that they submitted their own documents - perhaps raising questions as to whether this cry of ‘poor’ was as accurate as pleaded by Markellos.  Who knows ...  

This had been a long 5 years for the Salvemini family ... One might have hoped that the end of this trial would bring them some healing but it didn’t didn’t even get close.

At times it’s a complete mystery why things happen the way they do.

On the day of sentencing, the Magistrate reads out the penalties and of course the penalty for Arthur Markellos comes across as being very low and this upsets the family a great deal.  It’s not clear why other than Markellos was supposedly at a less culpable level and – after all, he had no input on the reel design.  Really?  That’s not what the transcript says actually.  Evidence was outlined in this trial that suggested Mr Markellos was indeed involved in the reel design.

Magistrate Hardy left the court after he read out the penalty.  I sat and waited for the Magistrate to award the small amount of compensation that was available to the family via the court.  There is a maximum of $20,000 that could have been awarded to those who submitted Victim Impact Statements.

There was no mention of compensation at all.  It’s a mystery as to why because he had many impact statements to consider.  Not one word … the family left sitting there wondering if that was it, or was there more?  What happened here?  Did he forget?  Why didn’t someone ask the family how they wanted the issue of compensation handled?  There appears to have been some foregone conclusions made here that completely negated any impact Jack’s death had on his brothers and sisters.