Question Accountability situation Malta

[Wibble]

On the Stephen Martin case, the court case never progressed as prior to conclusion of the extradition process, BSAC pressure forced the authorities to drop the case, which probably came on account on that it would be damaging for the industry.

Sorry, need to correct that.

BSAC threw Stephen Martin under the bus. They were of no use whatsoever until a massive furore kicked off and Stephen was lucky enough to have many people back him from the FALSE extradition claim by Malta -- which they pulled the day before the hearing whilst Stephen was held under curfew, ankle tagged and arrested.

BSAC had silently removed the "criminal legal cover" from their insurance.

https://www.thediveforum.com/showthread.php?16918-Malta-Arrests

 

[SlugLife]

Only if you also mandate medicals for bicycle riders, joggers, etc. over 60. Oh, and don't forget climbing stairs and all the other things that are riskier over 60 than under.

With a major increase of heart-conditions in the last few years, perhaps everyone should be forced to get annual health checkups before they're allowed to engage in any form of exercise.

The crux of the matter was decided by a higher judge after evaluating "expert"'s opinions differently from the first.

That "expert" was (if I'm remembering correctly) a medical expert, making comments about scuba-practices, outside his field or expertise. If you've ever watched trials, and I have watched a couple, you know that "experts" regularly make stuff up or heavily skew information to support whichever side hired them. It's the other side's job to attempt to expose those flaws in cross-examination (in the US at least), and perhaps Castillo's council failed to do that. Judges absolutely should be more than aware of that too.

My point has always been this should have never even gone to trial. There's nothing about this case that was even remotely close to chargeable, much less convictable, if you have an IQ above 50, and a tiny shred of knowledge about SCUBA. I'll make it very simple: In order for Castillo to be guilty, then one must argue Gauci was also (more) guilty of criminal neglect. Gauci was the one who dived tired. Gauci was the one who made dozens of mistakes. Gauci was the one who refused to turn the dive. Most importantly Gauci was the one who was unable to assist Castillo, if Castillo at any point in the dive had any issues needing a rescue.

Perhaps it's pointless to criminally charge a dead person, but if Gauci was inured but survived, should Gauci be criminally charged?

On the Stephen Martin case, the court case never progressed as prior to conclusion of the extradition process,

Malta did make attempts to extradite Stephen Martian. That is the problem. The fact the case never progressed, because SCUBA divers globally made LOTS of noise, is something that should have never had to happen. Stephen Matian was still detained and under massive stress until that extradition request was terminated. And had he been extradited, can you imagine not being allowed to return to your home country (whether in prison or not)?

but the Castillo judgement indirectly implied that had he been an instructor & the victim his student

That's also absurd if true. Gauci was a SCUBA instructor. I'm not aware of any part of their relationship, where Castillo entered into a formal instructor role, where you'd be assuming liability. (Same with Stephen Martian)

 

[David A-G]

Sorry, need to correct that.

BSAC threw Stephen Martin under the bus. They were of no use whatsoever until a massive furore kicked off and Stephen was lucky enough to have many people back him from the FALSE extradition claim by Malta -- which they pulled the day before the hearing whilst Stephen was held under curfew, ankle tagged and arrested.

BSAC had silently removed the "criminal legal cover" from their insurance.

https://www.thediveforum.com/showthread.php?16918-Malta-Arrests

Well, on the medical bit for over 60's - the basic requirement that had been proposed was a visit to the GP, and apart from ensuring health, I think it was also to weed out, or try to offset liability, or reduce insurance costs for the diving centres. Tbh, I heard of a crazy case over here just over ten years ago of a couple where one suffered from an ailment and the dive centre refused to rent items to them unless a medical was obtained, then they just went to the next dive centre, said nothing, got rental equipment and both died on a dive apparently triggered by the person with the ailment.

RE: BSAC Cover - in 2023 (after the Castillo case) for a brief period they added on their website that legal defence costs was not covered outside of the UK without telling anybody. After enquiring about it, they removed that and said that it was a mistake. I can tell you that locally we were quite incensed on that!

 

[David A-G]

With a major increase of heart-conditions in the last few years, perhaps everyone should be forced to get annual health checkups before they're allowed to engage in any form of exercise.

That "expert" was (if I'm remembering correctly) a medical expert, making comments about scuba-practices, outside his field or expertise. If you've ever watched trials, and I have watched a couple, you know that "experts" regularly make stuff up or heavily skew information to support whichever side hired them. It's the other side's job to attempt to expose those flaws in cross-examination (in the US at least), and perhaps Castillo's council failed to do that. Judges absolutely should be more than aware of that too.

My point has always been this should have never even gone to trial. There's nothing about this case that was even remotely close to chargeable, much less convictable, if you have an IQ above 50, and a tiny shred of knowledge about SCUBA. I'll make it very simple: In order for Castillo to be guilty, then one must argue Gauci was also (more) guilty of criminal neglect. Gauci was the one who dived tired. Gauci was the one who made dozens of mistakes. Gauci was the one who refused to turn the dive. Most importantly Gauci was the one who was unable to assist Castillo, if Castillo at any point in the dive had any issues needing a rescue.

Perhaps it's pointless to criminally charge a dead person, but if Gauci was inured but survived, should Gauci be criminally charged?


Malta did make attempts to extradite Stephen Martian. That is the problem. The fact the case never progressed, because SCUBA divers globally made LOTS of noise, is something that should have never had to happen. Stephen Matian was still detained and under massive stress until that extradition request was terminated. And had he been extradited, can you imagine not being allowed to return to your home country (whether in prison or not)?


That's also absurd if true. Gauci was a SCUBA instructor. I'm not aware of any part of their relationship, where Castillo entered into a formal instructor role, where you'd be assuming liability. (Same with Stephen Martian)

I'd say for strenuous exercise, yes.
"Expert" - that was probably the most contested issue - his opinions... here it's a bit of small island issue (the amount of hyperbaric doctors can be counted on your hands), and courts depending on them to understand the case. Experts are engaged by courts depending on very little oversight and are in theory neutral - they have to give opinions based on their knowledge and assessment of evidence to help the court understand the facts and science, but as stated in the appeal judgement, the court is not obliged to follow the expert's opinion. It is my understanding that the defence did not bring any experts to the court itself (none mentioned in judgements). In fact in the appeal, one of the main points raised in the appeal was that issue - overstepping his expertise.

Re: Gauci, hands down lots of mistakes done by her from the information as provided in the judgement. Unfortunately she didn't survive. If the casualties were reversed, I am pretty sure chances she would have been prosecuted (but not necessarily convicted) could have been high as a qualified instructor in view of past cases (and even this case's appeal judgement) but one can never say to be sure as it's not a perfect world.
(As a sidenote: Just two years before the accident there was an international underwater photographic competition in Gozo and she was one of two volunteers who were acting as safety monitoring free divers and they had helped to recall divers from water when the weather suddenly changed. Their help that day prevented injuries to other divers and damage to expensive cameras)

My whole point of debating the court process & legal system here is giving further insight from a local aspect - not apportioning blame which does not help anybody. No one is happy within our communities about how it developed. Since the case was involving a local diver, there was no ban threat by some major organisation (like in Stephen Martin's case) which could have stopped the case, and many locally were even unaware that the case was being tried in court until the first judgement came out.

Recommendations were suggested on how to prevent repeats, beyond the bad press which I think will make courts more cautious. Unfortunately, a year later now from the first messy judgement is that we're still without a proper expert-led accident investigation process which is not there to pin blame - that's the court's remit - but to identify potential takeaways for diver safety. Again, aviation industry & partly one could look at the British Sub-Aqua Club (BSAC) Annual Diving Incident Report for inspiration. Happy to hear if you have / know of any similar investigation protocols / best practices in place in other countries if ever authorities start hearing better the local community. We could use them as examples in propositions.

 

[David A-G]

I don’t believe that you are part of some propaganda effort. But I believe you are seeing it from the viewpoint of someone within a certain system.

I would ask myself these questions:

• Is the current law bringing tangible benefits compared to countries which do not have similar law and can I quantify that?
• Is the current law bringing negative points, unnecessary red tape and can I find examples?

You can always make it safer, but at some point you have to see if it can be quantified and if it is worth it.

“Maybe” safer or “maybe” ok does not cut it and , if not subject of a pro/con analysis, IMHO is often the source of unnecessary red tape (not particularly in scuba diving, it’s an increasingly big part of my job to make sure we meet all the red tape requirements).

This is probably why it’s hard to settle on this kind of argument on a forum.

Because you will say that the negatives aren’t so many: they were only 2 cases. And you will say that it probably brings some positives.

Some other people will argue that all the rest of the world is doing ok without these rules and that there shouldn’t be a burden on the buddy unless there are tangible elements of foul play.

Missed your reply earlier, no offence intended for not handling the queue right.

The law that was used to prosecute is a general law, not specific for diving. In fact, guns were turned on court and the "expert" for their benefit of hindsight assessment of the case. Well, we agree that that was very rich...

The change in law I would recommend would be to split the criminal case from an independent accident inquiry. This could allow to not rely on just single "experts" but a professionally setup board (e.g. including members with overlapping but also specific expertise), and if needed to run the criminal case afterwards, based on an impartial report, or recommendation, but not judgement, from the inquiry. This unless victims' families press for charges or a civil suit which then would need a formal legal process - which they can do anyways as things stand legally today in I believe most countries. The inquiry's report (or parts of it) could also be accessible for the diving community and researchers for learning, and potentially, regulators in case of misdeeds by licensed entities to assure transparency which the current court process does not allow.

Fully agree that buddy diving should not be a case for a legal process unless there is evidence of intentional disregard.

 

[L13]

Re: Gauci, hands down lots of mistakes done by her from the information as provided in the judgement. Unfortunately she didn't survive. If the casualties were reversed, I am pretty sure chances she would have been prosecuted (but not necessarily convicted) could have been high as a qualified instructor in view of past cases (and even this case's appeal judgement) but one can never say to be sure as it's not a perfect world.

That would also have beenjust as much of a travesty. Just because someone has died, doesn't mean someone must be prosecuted.

(As a sidenote: Just two years before the accident there was an international underwater photographic competition in Gozo and she was one of two volunteers who were acting as safety monitoring free divers and they had helped to recall divers from water when the weather suddenly changed. Their help that day prevented injuries to other divers and damage to expensive cameras)

Not relevant to anything...
Except maybe that sometimes dive accidents happen to good people without criminal negligence being involved.

My whole point of debating the court process & legal system here is giving further insight from a local aspect

The insight you are giving us is that a local, involved enough in diving to know better, doesn't think these cases were obvious travesties of justice. This re-enforced the idea that Malta has a scuba justice problem, if not an overall justice problem.

not apportioning blame which does not help anybody.

Wait a second! you don't want to apportion blame to a system that apportioned blame to an innocent person, because apportioning blame doesn't help anyone?

If "apportioning blame...does not help anybody," why defend a system that does that, and does it incompetently and/or corruptly (I vaguely remember either the judge or the prosecutor was related to the deceased, but did not recuse themselves).

No one is happy within our communities about how it developed.

You don't sound that upset. Till now you have been defending it.

Since the case was involving a local diver, there was no ban threat by some major organisation (like in Stephen Martin's case) which could have stopped the case, and many locally were even unaware that the case was being tried in court until the first judgement came out.

Why would you want a justice system that needed an international ban threat to force it to do the right thing?

Recommendations were suggested on how to prevent repeats, beyond the bad press which I think will make courts more cautious. Unfortunately, a year later now from the first messy judgement is that we're still without a proper expert-led accident investigation process

Which would have happened if corrupt judicial system had not mucked up the works. Look up the term "just culture" as it relates to safety and accident investigation. You can not get want you claim to want if you don't fix your judicial system!

which is not there to pin blame - that's the court's remit

The court shouldn't be involved in pinning blame, until someone competent has determined there is blame to pin.

- but to identify potential takeaways for diver safety. Again, aviation industry & partly one could look at the British Sub-Aqua Club (BSAC) Annual Diving Incident Report for inspiration. Happy to hear if you have / know of any similar investigation protocols / best practices in place in other countries if ever authorities start hearing better the local community. We could use them as examples in propositions.

What you need and don't have is a "Just Culture." Fix that first, the rest will follow. More regulations from the local tyrant in charge of the hyperbaric chamber will just make things worse.

 

[L13]

"Expert" - that was probably the most contested issue - his opinions... here it's a bit of small island issue (the amount of hyperbaric doctors can be counted on your hands)

Not really, any average diver on the island would have (hopefully) given better and more expert testimony in this case.

Look at Cozumel Mexico. Smaller island, and they manage not to prosecute foreign dive buddies just because a local died.

It sounds like the expert in question may also be one of the local tyrants in charge of the hyperbaric chamber. Yet another reason to dismiss their push for more regulation rather than a just culture.

 

[SlugLife]

"Expert" - that was probably the most contested issue - his opinions...

The entire trial was contested. The part that got the conviction overturned was mostly focused on that "expert."

here it's a bit of small island issue (the amount of hyperbaric doctors can be counted on your hands), and courts depending on them to understand the case

It doesn't matter how many hyperbaric doctors there are on the island, a hyperbaric doctor has practically nothing to do with the case. Unless you squint really hard, do a head-stand, spin in circles a few dozen times, and take 20 shots of vodka. At best, they can attempt to speculate on how Gauci died, or the chances Castillo would have been injured, which is irrelevant.

The standard for neglect, is what a "reasonable scuba diver would do", and not what a "reasonable hyperbaric doctor would do."

What is relevant are SCUBA industry training and practices. Are Scuba divers taught to endanger themselves to rescue another diver? Are Scuba divers taught it's ok to blow through deco, if your buddy blows through their deco? Are Scuba divers taught that they are responsible for baby sitting other divers, including forcefully ending dives when the buddy gives the ok signal? Or are Scuba divers regularly taught to never endanger themselves to rescue another diver, and that blowing through mandatory deco risks severe injury or death?

....but just to highlight how ridiculous these charges are: Gauci died doing X. To even bring criminal charges, is to assert Castillo should have also done X, the exact same thing that caused Gauci to die.

xperts are engaged by courts depending on very little oversight and are in theory neutral

Have you ever watched "expert" testimony? In all the expert testimony I've seen, I've never seen one that was neutral.

 

[David A-G]

Not much time today and in the coming days due to other things to deal with (incl hopefully lots of diving even though weather is playing up), but again, the case above is not representative neither of normal occurrences here, nor something we are able to expect again anytime soon.

Unfortunately the system has not been yet reformed properly, in my opinion as much effort was misguided for the tree ("expert") instead of the woods (how to ensure proper accident analysis)... co-incidentally however in local news today there was news related to an incident in an adventurous sports event which was stopped prior to moving to a full blown case against organisers. Unfortunately what was reported was mainly the organisers' version of events, rather than proper independent eyewitnesses or reference to independent evidence reports. That's always a worry - hence our suggestion for a different way of handling these.

@L13 - I looked up for cozumel and the first articles were not exactly reassuring - rather, very much the opposite! I'll research a bit more... but happy to receive links.

@SlugLife - Experts' testimony here is quite different. They get paid on a different basis through the public coffers, not by one side against another to ensure conviction. In fact, the equipment technical expert in the case mentioned (also appointed by the court) was actually very much in favor of the accused. The court's reasoning in the first judgement was different unfortunately...

 

[admikar]

@David A-G since you seem to currently be most active SB member from Malta, appart from these few prosecuted cases, do you have any data about what happened with those other cases where someone died? Prosecuted or dropped after investigation?
What I find troubling is your mention of an instructor that was prosecuted because client lied on medical and died as a consequence. Whether convicted or not is immaterial.