In the Estate of GREEN - [2020] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of GREEN
[2020] SASC 90
Judgment of The Honourable Justice Bampton
25 May 2020
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - EVIDENCE - PRESUMPTION OF AND LEAVE TO SWEAR DEATH
Application pursuant to r 68 of the Probate Rules 2015 (SA) to swear the death of a missing person in respect of whose estate a grant is sought – where missing person disappeared on 15 December 2017 and has not been seen since nor his body located.
Held:
1.      The evidence relied on in support of Susan’s application satisfies me that Rodney accidentally drowned at sea near Hall Bay on Eyre Peninsula on 15 December 2017.
2. Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Rodney Peter Green late of 1953 Tod Highway, Edillilie 5630 may be sworn to have occurred on 15 December 2017.
3. Pursuant to s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to register the death of Rodney Peter Green, born 30 October 1960, as having occurred on 15 December 2017 by accidental drowning.
4.      That probate of the will of Rodney Peter Green dated 1 May 2006 be granted to Susan Lee Green, the executor named in the will.
5.      Upon Susan Lee Green making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
Probate Rules 2015 (SA) r 68; Births, Deaths and Marriages Registration Act 1996 (SA) s 35, referred to.

In the Estate of GREEN
[2020] SASC 90
Testamentary Causes Jurisdiction

BAMPTON J: Rodney Peter Green (“Rodney”) and his wife Susan Lee Green (“Susan”) plumbed in a new tank on their farm and finished harvesting on 15 December 2017. Rodney left home at about 4.30 pm intending to drive to Hall Bay on Eyre Peninsula to set cray pots to catch crayfish for Christmas. Susan has not seen or heard from Rodney since that time.
Susan makes an application for the Court’s permission to swear the death of Rodney pursuant to r 68 of the Probate Rules 2015 (SA).
Susan deposes in her affidavit filed in support of her application affirmed on 28 April 2020 that Rodney disappeared when the boat he was in capsized in Hall Bay on 15 December 2017. Susan states that the Coroner’s Court has confirmed that the disappearance and presumed death of Rodney was reported to the State Coroner on 19 December 2017. The Coroner’s Court has further informed Susan that, as South Australia Police’s (“SAPOL”) investigation into Rodney’s disappearance remains open and he is listed as a missing person, the Coroner cannot determine that he is deceased. Copies of the SAPOL statements on the Coroners’ file pertaining to the investigation into Rodney’s disappearance have been provided to Susan.
Evidence that Rodney drowned at sea on 15 December 2017
The following description of the events surrounding Rodney’s disappearance and the search undertaken to find him is taken from the statements provided by the Coroner’s Court.
Hall Bay is a small area of isolated coastline located about 101 km to the northwest of Port Lincoln. Cummins is the closest township about 50 km to the east. The area is characterised by steep cliffs and extensive sand dunes. Much of the area is only accessible by four-wheel drive. The northern area of the bay is referred to by locals as “Old Hall Bay”. There is an outer reef approximately 500 metres from the shoreline and an inner reef approximately 110 metres from the shoreline. The inner reef is referred to as Churchy’s Reef.
Information from the Bureau of Meteorology records that on the evening of 15 December 2017 winds at Hall Bay were south to south-westerly about 10 knots swell was south-westerly 1.5 to two metres. The weather was fine and sunny and the air temperature was around 21 degrees at 7.00 pm.
Rodney met M, who worked for him on his farm, and M’s young teenage sons, N and O,[1] between 6.00 pm and 6.30 pm on 15 December at Old Hall Bay. M owned a 13-foot aluminium tinny given to him by his uncle only two weeks prior to 15 December (referred to interchangeably as the tinny or the boat). The tinny was fitted with two aluminium horizontal beams with two plastic seats attached to each beam. M had used the tinny five or six times in Hall Bay in the time he had possession of it. M reported that it had run well and that there were no issues with it or it’s outboard motor.
[1] The names of M, N, and O are anonymized to avoid further trauma to N and O.
M, N, and O had attempted to go cray fishing about mid-morning on 15 December but decided against it due to the size of the swell and the wind.
By all reports both Rodney and M were experienced cray fisherman familiar with Hall Bay.
M said that Rodney appeared very relaxed after finishing harvest and was very keen to go out on the boat and set the craypots. M said that while he and his sons were loading the craypots on the boat, Rodney changed into shorts but did not remove the large dark jacket he was wearing.
Once the cray pots and lines had been loaded Rodney, M, N, and O boarded the tinny. Rodney sat at the front left of the boat, N was next to him at the front right. O was at the left rear and M was at the controls of the boat at the right rear. The tinny was equipped with life jackets, however none of the tinny crew put them on. Susan reported that Rodney would usually wear a “Stormy Seas” inflatable life jacket when he was cray fishing, but he left it at home on 15 December 2017.
M steered the boat from the mooring in a north-easterly direction and travelled a distance of approximately 300 metres to Churchy’s Reef. When the tinny was about 50 metres from the shore facing southeast, M put the boat in neutral, Rodney stood up, threw a craypot over the side of the boat, and then sat down. M then moved the boat forward at a speed of about two knots for about 20 metres. M reported that he then saw a set of rolling waves building to the right of the boat, he turned the boat so that it was facing the oncoming waves which had not broken. A wave of approximately two metres in height broke just in front of the boat. After it broke M accelerated to go over it, but the boat was swamped and overturned to the right. Rodney, M, N, and O were thrown overboard. M and his sons surfaced close to the boat and each other. Rodney surfaced about 10 metres away from M, N, and O.
N noticed that Rodney looked panicked and appeared to swim frantically trying to go with the wave. N yelled out to Rodney a few times to stay on his back and stay calm, but he “kept panicking and trying to swim”.
M tried to hold onto N and O. N told M to let go of him and to just look after O. N deposed that he is a fairly strong swimmer and knew that he would be able to swim to shore. M let go of N. M and O both removed their jumpers. N swam to the reef which was about 20 metres from where the tinny had capsized. When N stood up on the reef he could hear Rodney calling for help. Whilst standing on the reef, N could feel the water being sucked out to sea and saw M and O “sucked back by about another 15 metres”. N looked over to Rodney, who was further south than M and O, but could only see his beard. N could still hear Rodney appearing to gasp for breath and weakly calling for help but he was unable to assist him. Another wave pushed M and O onto the reef. N turned back to where he last saw Rodney, hoping he might have caught the same wave as M and O, but could no longer see or hear him.
N then climbed a cliff and ran around Hall Bay to where he saw the Peacekeeper, a large commercial cray fishing boat. N yelled out to the Peacekeeper and pointed in the direction of where he last saw Rodney. The Peacekeeper moved towards that position. N then ran to M’s car and drove to the shore to meet M and O. The crew of Peacekeeper yelled words to the effect of “go to channel 15”. M and N connected with the Peacekeeper crew on their car radio and explained what had happened.
M contacted his partner who called 000.
Richard Leech, the skipper and owner of the Peacekeeper, stated that, at 5.30 pm on Friday 15 December 2017, he noticed a tinny cray fishing about 33 metres north of the mooring area and about 25 metres off the shore near the northern section of Hall Bay. He recalled that at the time, he thought it was dangerous for the tinny to be cray fishing due to abnormal swell conditions that evening.
About an hour and 20 minutes later, Mr Leech and his son had moored their boat and were below deck when they heard shouting. They then noticed persons 100 metres northeast of them, atop a cliff shouting at them and pointing in the direction of the northern section of Hall Bay. They could not hear what was being shouted but guessed that there was some sort of emergency with the tinny they had passed earlier that evening. They released their mooring, and made their way to where they last saw the tint in the northern section of Hall Bay. As they got closer they could hear the persons shouting “Grass” and pointing to the water, Mr Leech knew that Grass was Rodney’s nickname. Mr Leech saw the capsized tinny along the shoreline and realised that Rodney was missing in the water. He spoke to M and N, over the radio and learnt what had happened. He then searched the area where he believed Rodney may have been taken by the current. Mr Leech and his son continued to look for Rodney and after approximately 30 minutes another boat joined the search. Although Mr Leech found debris from the capsized tinny on the north-western side of Hall Bay, about 300 metres from where they last saw the tinny, there was no sign of Rodney. They continued to search the area until approximately 9.45 pm. Mr Leech stated that he knew that if Rodney had not been found by this time a dive recovery team would need to search for him.
M, N, and O continued to search for Rodney until approximately 4.00 am on 16 December 2017.
Mr Leech described the weather conditions on Friday 15 December 2017 as being “10 knots south easterly with a 2 to 3 metres building swell, with a short period”. He noted that the current in the bay was running north west out of the bay, leading him to conclude that Rodney would have been washed out of the bay. Mr Leech had known Rodney for 15 years through cray fishing in Hall Bay and considered him an experienced cray fisherman.
SAPOL arrived at Hall Bay just after 8.00 pm on 15 December 2017.
At about 11.30 pm on 15 December 2017, SES volunteers advised that they had found M’s overturned boat along the shoreline. At about 11.45 pm, POLAIR arrived and a helicopter joined the search for approximately an hour and a half. The search was suspended for the night at 2.15 am on 16 December.
SAPOL officers, John Paul Randall and David Sterling Bacchus, describe an extensive search of the Hall Bay area on the night of and the days following 15 December 2017. The investigating officer Detective Brevet Sergeant Mary Octoman described in her statement affirmed on 27 July 2018 that an extensive land and sea search was conducted by SAPOL, CFS, SES, as well as local volunteers and Rodney’s family.
SAPOL water operations exhausted their search on 18 December 2017. At the same time, it was determined that the coordinated search would be concluded. SAPOL met with Rodney’s family and friends to advise them of the decision. Numerous family and friends continued to search the land and sea area of Hall Bay over the following days. Despite the search, Rodney has not been located and is presumed to have drowned.
Rodney’s general practitioner, Dr Gerald Quigley, informed SAPOL by reference to his medical records that Rodney:
·fell off a horse and suffered a dislocation of his C6 and C7 spinal bones in 1981.
·was diagnosed with unstable angina in 2003. Dr Quigley explained that angina can bring on shortness of breath and chest pain which can be exacerbated by panic or strenuous exercise.
·underwent an operation in 2006 for a torn rotator cuff in his right shoulder and developed septic arthritis as a complication of the operation. Although treated successfully with antibiotics, in Dr Quigley’s opinion Rodney would have suffered residual pain and restriction of shoulder movement which may have impacted his ability to swim.
·was diagnosed in 2009 with coronary artery spasm, hypertension, and hyperlipidaemia.
It is noted that Susan cannot recall Rodney swimming more than a short distance and is of the view that the medical conditions he suffered as described by Dr Quigley made him a weak swimmer.
SAPOL sought advice from Dirk Holman, a marine biologist employed by the Department of Environment, Water and Natural Resources, regarding the most likely place Rodney’s body might be located. Mr Holman advised that given the prevailing conditions and the swell in Hall Bay, that Rodney’s body may be located at either Sheringa Beach or Kiana Beach. SAPOL have spoken with the farmers whose properties are adjacent to these beaches. The farmers have committed to report any items of interest to SAPOL. Nothing has been located or reported to SAPOL.
The tinny has not been recovered and is believed to still be in the Hall Bay area. Detective Octoman concluded that there is no evidence or information to suggest that the capsizing of the tinny was due to any reason other than an accident. She stated that it is not clear why Rodney surfaced so far from the tinny and that there are many variable factors as to why this may have occurred. Rodney may have surfaced under the tinny, forcing him to swim out and away from it. He may have seen the wave coming and jumped from the boat as it was being swamped. He may have been pushed further underwater than M, N, or O and therefore took longer to surface. Had he surfaced closer to them he may have been able to hold onto the boat until it sank, giving him some time to calm and refocus. Detective Octoman states that it is reasonably possible that when Rodney was thrown into the water, he panicked given his distance from the boat, the shore, and M, N, and O.
Detective Octoman referred to Dr Quigley’s opinion that panic and physical exertion may have caused Rodney to suffer angina. Rodney was wearing a large jacket which would have hampered any of his efforts to swim and may have caused him to sink deeper into the water as his jacket filled with water. Detective Octoman suggested that the dark blue colour of the jacket would have made Rodney virtually invisible in the water and she noted that M and O managed to remove their heavy jumpers which allowed them to swim more effectively.
Detective Octoman’s investigation led her to conclude that M is an experienced and licensed boat owner, the tinny was free from any obvious or contributing defects and it was a vessel suitable for the location and the tasks required for amateur fishing and cray potting.
Having regard to all the evidence assembled by SAPOL, Detective Octoman arrived at the view that the most likely explanation for Rodney’s death is drowning as a result of his lungs filling with water, causing his body to sink beneath the surface. Further, the large swell and northerly current in Hall Bay would have pushed his body out to sea. Detective Octoman referred to Mr Leech’s statement that on the evening of 15 December 2017:
… the water visibility was deteriorating very quickly and the current in the bay was increasing in a [northwest] out of the bay. As such I believe on my experience that Rodney would have been washed out of the bay.
Detective Octoman stated that she found no evidence to indicate that Rodney did not die as a result of drowning at Hall Bay on 15 December 2017. There is also no evidence to suggest that his death was in any way suspicious and not as a result of the marine accident.
Conclusion
There has been no reported sighting of Rodney since 15 December 2017 and his body has not been recovered. Rodney was aged 57 at the time of his disappearance and married to Susan. Rodney and Susan are the parents of Douglas Peter Green born 23 June 1987 and Tom Ernest William Green born 11 December 1989.
Douglas and Tom have each filed an affidavit deposing to the fact that they assisted with the search for Rodney and that they have not seen or heard from Rodney since he disappeared on 15 December 2017.
Susan deposes in her affidavit that there is no evidence of Rodney or anyone else attempting to access Rodney’s assets or their joint assets and no claim has been made against the life insurance policy in Rodney’s name.
The will
Rodney executed a will dated 1 May 2006, appointing Susan the executor of and the sole beneficiary of his estate.
The evidence relied on in support of Susan’s application satisfies me that Rodney accidentally drowned at sea near Hall Bay on Eyre Peninsula on 15 December 2017.
Accordingly, I make the following orders:
1.Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Rodney Peter Green late of 1953 Tod Highway, Edillilie 5630 may be sworn to have occurred on 15 December 2017.
2.Pursuant to s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to register the death of Rodney Peter Green, born 30 October 1960, as having occurred on 15 December 2017 by accidental drowning.
3.That probate of the will of Rodney Peter Green dated 1 May 2006 be granted to Susan Lee Green, the executor named in the will.
4.Upon Susan Lee Green making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.