Diving instructor faces court over death

[terrylowe]

I feel you are right they are holding things close to the chest.
Unfortunately, I feel it is due to media coverage effecting tourism.
this is a difficult situation. japanese instructor, chinese student on the Gold Coast, Tourism being its biggest $$ maker. although the trial of the american killing his wife, got way out of hand well before he was charged. Qld authorities looked like asses in that.

I understand about the media coverage....another sad example of that is the Gulf of Mexico oil spill. The media reported/implied that there is vast beach destruction. Unfortunately that is choking tourism off (who wants to go to a beach covered in oil??) Now the Gulf states are wanting BP to pay for the downturn in tourism (and revenue). The actual damages to the beaches, however, have been vastly overstated in the media.

Sorry...just a soapbox/rant of mine...not trying to hijack the thread.

 

[Peter Guy]

Rhoneman -- Thank you for bringing up the notion that a Manslaughter charge is probably the correct one here since there was very unlikely to be "intent" or "recklessness" by the instructor. OTOH, "negligence" is likely to be involved IF the diver was overweighted, etc. as alleged.

The intersection of criminal law and instruction is, to me, a former criminal defense attorney, fascinating. I am aware of one local death where I believe a murder charge is warranted -- or at the very least, First Degree Manslaughter. (Quite frankly, the distinction between the two is probably not all that significant.)

ALL dive buddies, and "professionals" in particular, need to remember they do have significant duties towards their buddies and if there is a failure in the performance of those duties, there may be significant consequences. So many people write (talk) about "individual responsibility" and that it is horrible someone other than the victim may be held liable for what has happened. But, as I have written before, EACH PERSON in the buddy team has individual responsibility, not just the victim.

Yes, I am all for individual responsibility and for a minimal "nanny state" -- but I am also for EVERYONE acknowledging their individual responsibility and that means my buddy also! And here, the instructor had her individual responsibility to her client and we ignore that at our peril.

 

[Thalassamania]

Gotta remember that the prosecutors are building a case and what they are releasing to the media can be far far from the truth of what actually happened. They can "allege" to the nth degree often in attempts to "convict" their target prior to the trial.
The defense team is holding their cards to their chest until the trial.

Let's just you the Grand Jury assumption, for now, of "if unrefuted."

I am not sure what you are suggesting as an alternative. I assume Qd is a common law jurisdiction, so the only charge which could made which would be more serious is murder. That would require actual intent to kill or cause GBH on the part of the instructor, and that seems pretty far fetched.

Rest assured, the maximum sentence for manslaughter in most common law jurisdictions (again, assume Qd too, but don't know for sure) is life imprisonment.

Sorry, if I came on strong, but I hate armchair experts looking at the Criminal Justice system, slapping the table and saying that's not enough!

While I am not an expert in Australian Law (armchair or otherwise) I am a qualified expert when it comes to diving "diving accidents," at least within the confines of civil proceeding within the United States.

Rhoneman -- Thank you for bringing up the notion that a Manslaughter charge is probably the correct one here since there was very unlikely to be "intent" or "recklessness" by the instructor. OTOH, "negligence" is likely to be involved IF the diver was overweighted, etc. as alleged.

The intersection of criminal law and instruction is, to me, a former criminal defense attorney, fascinating. I am aware of one local death where I believe a murder charge is warranted -- or at the very least, First Degree Manslaughter. (Quite frankly, the distinction between the two is probably not all that significant.)

ALL dive buddies, and "professionals" in particular, need to remember they do have significant duties towards their buddies and if there is a failure in the performance of those duties, there may be significant consequences. So many people write (talk) about "individual responsibility" and that it is horrible someone other than the victim may be held liable for what has happened. But, as I have written before, EACH PERSON in the buddy team has individual responsibility, not just the victim.

Yes, I am all for individual responsibility and for a minimal "nanny state" -- but I am also for EVERYONE acknowledging their individual responsibility and that means my buddy also! And here, the instructor had her individual responsibility to her client and we ignore that at our peril.

Like Peter I find the intersection between criminal law and instruction fascinating and I fail to understand why it is almost never invoked when it comes to situations that are every bit as heinous as negligently running someone over with a car.

According to Joshua Dressler, Understanding Criminal Law, 3rd ed., the elements of common law murder are:

1. the killing
2. of a human being
3. by another human being
4. with malice aforethought.

In this case the first three elements are clearly there. The only question is of "malice aforethought." While "malice aforethought" originally had its everyday meaning, that is to day, "a deliberate and premeditated killing of another motivated by ill will," the courts have broadened the scope and removed the requirement of actual premeditation and deliberation as well as true malice.

The term, "malice aforethought," today simply means that one of the four states of mind that constitutes "malice" exists

1. Intent to kill,
2. Intent to inflict grievous bodily harm short of death,
3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
4. Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (3), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, which (again, if unrefuted here) I feel might come into play. Given even what little is know here at this point, I would have no problem voting "true bill" with respect to an indictment.

 

[Rick Murchison]

I always find it fascinating to see who pops up to propose the heavy hand of government be used to regulate away risk.
As I understand it, this particular mishap occurred in Australia where just such government regulation is in place, and so it naturally follows that "self regulation doesn't work!" ... and we need to extend such onerous bureaucratic oversight of a recreational activity to here in the States.
Amazing logic, that!
Self regulation works just fine for me, thank you.
It all boils down to "who decides."
For those of you who want the force of law regulating what you do in the water, I'll go along with government oversight as long as *I* decide what we - you and I - can do.
In the meantime I'll be happy to let you decide for you, and I'll decide for me.
..
Besides all that, the case before this court doesn't really have anything to do with SCUBA regulations, but a criminal disregard for safe practices. In assessing liability and responsibility, whether those safe practices are in government regulations or in the recommendations of a self regulating agency makes no difference to my mind - I ain't a lawyer, but my guess is that it won't make any difference in a manslaughter case either.
Rick

 

[marinediva]

I have just got off the phone to the Coroner's office.
It appears the coroner has suspended his proceedings until the results of the committal hearing.

In Qld, the Recreational Diving, Recreational Technical Diving and Snorkelling Code of Practice 2010

which can be found at this link
http://www.deir.qld.gov.au/workplace/law/legislation/codes/index.htm

is law. If there is a death in the workplace, the charge is manslaughter.
It is a criminal offense.

The following are the list
workplace Health and Safety Act 1995

Offences causing death or grievous bodily harm
$100,000
2 years jail for individuals.

http://www.deir.qld.gov.au/workplace/law/penalties/maximum/index.htm

the case before this court doesn't really have anything to do with SCUBA regulations, but a criminal disregard for safe practices. In assessing liability and responsibility, whether those safe practices are in government regulations or in the recommendations of a self regulating agency makes no difference to my mind - I ain't a lawyer, but my guess is that it won't make any difference in a manslaughter case either.

Actually Rick, in Qld, it has everything to do with regulations.
The instructor concerned has been charged with manslaughter because there seems to be a case that she did not adhere to regulations.
ALL WORKPLACES IN QLD ARE GOVERNED BY WORKPLACE HEALTH AND SAFETY LEGISLATION. legislation is LAW in QLD.
In regards to the diving industry, there is a code of practice. That is part of the legislation. There by law.

If you are a private diver, and have your own boat, you can do pretty much what you want. But in saying that, since someone who had their own boat would also have a duty of care as the skipper to anyone on that boat,
I would feel eventually, any actions which happened upon that boat would come into question during a coroners examination.

the link from a previous post, pointed out the pressure, the tourism industry was under during the period prior to 2003.
Public Liability was skyrocketing, and all stakeholders were looking for a solution. Implementing a code of practice was the solution. It offers clear guidelines to be implemented AT A MINIMUM.

Codes of practice state ways to manage exposure to risks.

If a code of practice exists for a risk at your workplace, you must:

•do what the code says; or
•adopt another way that identifies and manages exposure to the risk; and
•take reasonable precautions and exercise due care.

The introduction of the regulated COP in Queensland was partly an attempt to increase the confidence of many domestic and international tourists of the relative safety of diving in Queensland. However, there has been a reaction from some small parts of the dive community who find that certain requirements restrict their freedom to dive how they wish. Some international tourists have complained that they have come to the Great Barrier Reef to dive and have been unable to do so due to higher medical standards being applied to diving here. Some have required a local medical clearance prior to the dive operator allowing them to dive, and this is not always appreciated!

this is an extract from this report
Recreational Scuba Diving & Snorkelling
Safety in Australia:
An identification, summary and analysis of policies, legislation and
standards relevant to recreational scuba diving and snorkelling

This is the website were it can be found.
http://www.watersafety.com.au/AWSCReports/tabid/58/Default.aspx

 

[Rick Murchison]

Actually Rick, in Qld, it has everything to do with regulations.
The instructor concerned has been charged with manslaughter because there seems to be a case that she did not adhere to regulations.

You miss my point. Whether the "safe practice" is codified in a regulation, recommendation or just plain old common sense, it is the criminal disregard of the safe practice - criminally reckless behavior - resulting in death that makes it a crime. IOW, it'd be a crime whether there were a regulation in place or not.
The problem with trying to codify common sense is that it makes it far easier for some bureaucrat to beat you over the head with a technical violation of the regulation that isn't a violation of the intent of the regulation or of common sense. And there will always be some jerk in power ready to do it.
The bottom line is that when it comes to things like SCUBA, the mechanism to prosecute behavior that's dangerous to others is already in place without government regulations; all government regulations do is get in the way of individual freedom without adding anything useful to anyone's life.
Freedom!
and responsibility...
That's the ticket.

Rick

 

[Rhone Man]

The term, "malice aforethought," today simply means that one of the four states of mind that constitutes "malice" exists

1. Intent to kill,
2. Intent to inflict grievous bodily harm short of death,
3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
4. Intent to commit a dangerous felony (the "felony-murder" doctrine).

I think (3) and (4) must American constructs. In the Commonwealth jurisdictions practising common law (at least all the ones I have practised in - admittedly, only three), only the first two suffice as the mens rea for murder.

Wikipedia sums it up well:

The mens rea (Latin for "guilty mind") of murder is either an intention to kill (per the 2004 binding case of R v Matthews & Alleyne) or an intention to cause grievous bodily harm (R v Moloney, R v Hancock & Shankland, and R v Woollin). In Moloney, Lord Bridge was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm (direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent).

Similarly, causing death during the commission of a felony (or as we would say, 'indictable offence') only constitutes constructive manslaughter at common law. Again, our friends at Wikipedia summarise the difference between the U.S. and other common law jurisdictions well.

Enough law - back to the discussion of the diving, on which I certainly defer to you Thal.

 

[Tortuga68]

1. the killing
2. of a human being
3. by another human being
4. with malice aforethought.

In this case the first three elements are clearly there

Are they?

A human being died, so there's 1 & 2

I would think the defence would be arguing 3 as well as 4 though

 

[Peter Guy]

Tortuga -- very good point. Just because someone violates every safety code on the planet and a death follows does not mean the violations were the cause of the death (post hoc ergo propter hoc {one of my favorite sayings}).

Establishing a causal link in a scuba death can be a difficult factual issue.

 

[Thalassamania]

I don't think that would be much of a hurdle in this case.