The Queen v Mark James Mathers
[2001] NZCA 193
•26 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA149/01 |
THE QUEEN
V
MARK JAMES MATHERS
| Hearing: | 25 June 2001 |
| Coram: | Keith J Heron J Randerson J |
| Appearances: | M J Logan for the Appellant J M Jelas or the Respondent |
| Judgment: | 26 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
This appeal arises from a marine disaster off Raglan in September 1998. A fishing boat, the Hunter II, sank and three of its four crew members were drowned. The appellant, a builder, owned the vessel. He took no part in the fishing. With rare exceptions, he did not go out on the vessel. The vessel at the time in question was skippered by a person with the appropriate qualifications.
The appellant did not have the Ship Safety Management Certificate which was required for the boat under Maritime Rules made by the Minister of Transport under the Maritime Transport Act 1994. That requirement had been introduced from 1 February 1998.
The appellant was convicted, under s68(2)(g) of the Maritime Transport Act, of operating a vessel knowing it did not have that certificate. He no longer challenges that conviction and that appeal is accordingly dismissed, as is the appeal against sentence on that count which was also not pursued. He does however appeal against his conviction, following a jury trial, of causing or permitting a ship to be operated in a manner which caused unnecessary danger or risk to another person in breach of s65(2)(a). That provision reads as follows:
(2) Every person commits an offence who
(a)Causes or permits any ship or maritime product to be operated, maintained, or serviced; or
…
in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether to not in fact any injury or damage occurs.
The appeal is based on one ground, that the Judge misdirected the jury about the shifting of the onus of the proof from the Crown. The Judge did that by reference to s66 of the Act which reads as follows:
66 Effect of breach of maritime rule
(1)Where any person is charged with any offence against section 64 or section 65 of this Act and the Court is satisfied that any act or omission of that person, or caused or permitted by that person, constitutes a breach of a relevant maritime rule, then, in the absence of proof to the contrary, it shall be presumed that the act or omission caused unnecessary danger or risk to another person or to property, irrespective of whether or not in fact any injury or damage occurred.
(2)Nothing in this section shall be construed so as to require the proof of a breach of a maritime rule as an element of any offence described in section 64 or section 65 of this Act.
As the certificate requirement was being introduced, the appellant approached engineering surveyors who were authorised by the Maritime Safety Authority to grant the certificate needed for the boat. In April, following an inspection, the appellant was given a list of the work he was required to undertake before he could obtain the certificate. The evidence was that this list included the repair of small cracks, refurbishment of life buoys, the replacement of an electronic position indicating radio beacon, the fitting of two fire extinguishers and the installation of a radio. The list did not include the anchors required on the boat, a matter which was critical for the sinking and which was at the centre of much of the evidence at trial. The Maritime Safety Authority accident investigator, who gave evidence at the trial, was asked:
Well wasn’t it a fact that the accident report [prepared following the sinking] found that the lack of compliance with the outstanding request of the surveyor had no part, played no part in the cause of the accident?
The answer was:
There is no direct cause or connection between the two on the basis that we have at this present time, yes that is the case.
The boat, as part of its usual equipment, had three categories of anchors : the Danforth, used to anchor the vessel; Kewene anchors used to anchor the nets; and others for miscellaneous purposes referred to collectively as Grapnel anchors. A short time before the disaster (and after the safety inspection) the Danforth anchor was lost. The appellant was not able to replace it locally and although he had placed an order with the manufacturers in Christchurch the anchor had not been replaced when the boat left Raglan on its final voyage. The crew intended to set nets, anchor overnight beside them, haul the nets in the next morning and return to Raglan. The nets were set with the Kewene anchors and the vessel was anchored with a Grapnel type anchor. The experts were agreed that that anchor was inappropriate for a mud or sandy bottom, the situation off Raglan, and that in addition not enough anchor rope had been let out. The boat drifted in the early evening, and the anchor was hauled up, and the boat was re-anchored near the nets with the same anchor and the same length of anchor rope. There was some suggestion about setting a watch but in the end none was set. Nor was use made during the night of several items of safety equipment (including depth sounders, GPS and radar) that could have been deployed. The surviving crew member gave evidence of waking early in the morning and noting from the GPS that the vessel had been drifting again during the night. The skipper awakened the other two crew and prepared to haul the anchor and steam back to the set nets, but within minutes the vessel was overwhelmed by waves, capsized and lost.
The main dispute at the trial revolved around the suitability of the Kewene anchors for anchoring the vessel. The Crown case was that all the anchors on board were insufficient. The appellant called expert evidence challenging the Crown’s case. The prosecutor at trial put the Crown case on the following basis:
1.the appellant had caused or permitted the boat to be operated, and
2.the manner in which the appellant had caused or permitted the boat to be operated was without a proper anchor, and
3.the operation of the boat without a proper anchor caused unnecessary danger or risk to another person.
The Judge did not however put the case to the jury in those terms or at least not primarily in those terms. Rather, he suggested that a logical way of approaching the issues was to say “let’s look at the count about operating without a current maritime certificate first”. The Crown had to prove that beyond reasonable doubt. The jury had to be sure that the elements of that count had been proved. The Judge then went through the elements of that count identifying as the key question whether the actions were done “knowingly”. “Did the accuse know he was doing that?” If the jury found that charge proved, then the reverse onus, he said, came into play. He then said this:
So s66 says that if you, the jury, are satisfied that the accused committed that offence in count 3 [knowingly operating without a certificate] then there is a subtle change in the burden of proof. What the Act says is:
In the absence of proof to the contrary, it shall be presumed that the act or omission …
(Act or omission here the Crown says is operating the vehicle, the vessel, without a current Safe Shipping Certificate).
… it shall be presumed that that action caused unnecessary danger or risk to another person whether or not injury occurred.
Now you have got to be careful that you do not end up going around in circles in this but what that basically means is this, that if you get to the stage where you accept to the high criminal standard that there has been a breach of the maritime rule in question, then instead of the Crown having to prove beyond reasonable doubt that that act, that is operating a ship without a proper certificate, did cause unnecessary danger or risk, you turn it around and you say, “It is now over to the”, look at the evidence and see whether it has been established for the accused that the action did not cause unnecessary danger or risk.
Now, making a formal charge under count 3 would not strictly speaking be necessary for a charge brought as count 1 because it could arise even if the charge had not been levelled of breach of the rules. But, in any event, if you are at the stage where you find that has been established then you look at the totality of the evidence and you say, as was said to you, on the balance of probabilities how do we view this? Has the accused established the proposition counter to what the Crown allege?
(It will be noted that the elements of relevance and causation included in s66 have been omitted in the first paragraph of this passage.)
The Judge then briefly summarised the evidence, calling attention to the differences of opinion between the experts about the relative degree of suitability of the various types of anchors and summarising the position of the Crown and the defence. The jury retired but were called back after twenty minutes and the Judge gave them a further direction on “the reverse onus question”. In the course of that he said “you will recall that s66 is the one that says that you are, you being the court, satisfied there has been a breach of a relevant maritime rule in that section then the presumption kicks in, the change of onus on that point.”
For the appellant, Mr Logan (who was not trial counsel) contended that as a result of the Judge’s directions the jury would have approached its task on the basis that if it found the charge relating to the certificate was proved, then it had to approach the more serious endangering charge on the basis that it was up to the appellant, through his witnesses, to prove that the vessel had been safe to operate with the Kewene and Grapnel anchors but without the Danforth anchor. Given the contested expert evidence on the point this was a particularly significant shift in the burden. How can a non-expert, whether a Judge or jury, determine the issue conclusively? He submitted that it was natural for the decision maker, in the face of that conflict of expert evidence, to fall back on the onus of proof as a way of deciding the issue.
Ms Jelas, for the Crown, submitted that it was overly simplistic to suggest that no breach of a “relevant” maritime rule occurred. The purpose of the rule which had been breached was to improve and maintain the operational safety standards of vessels. Without certification the Hunter II should not have been operated. On the date in question the boat was not a safe vessel because of its lack of certification. Had the appellant complied with the rules it would not have been operating on those days. She also called attention to evidence that suggested that a certificate might have been refused on the basis that the anchors on the Hunter II at the time of the disaster were inadequate. She accepted however that on the basis of the evidence before the jury the reasons the certificate had not been granted had nothing to do with the reasons, debated before the jury, for the sinking of the boat. The evidence recorded in para [5] above is decisive on that.
That takes us back to the words of s66. They are to be read of course in the context of the presumption of innocence stated in cases such as Woolmington v DPP [1935] AC 462 and affirmed in s25(c) of the Bill of Rights; see also eg The King v Kahu [1947] NZLR 368, 376. But even without that background, the provision is clear in its effect in the circumstances of this case. The appellant was charged with causing or permitting the Hunter II to be operated in a manner which caused unnecessary danger or risk to another person. On the evidence, that “manner which caused [the] danger” was allowing the vessel to go to sea without adequate anchors. Under s66(1) the presumption is that the breach of a “relevant” maritime rule is that an act or omission of that person, or caused or omitted by that person, caused the danger. A rule requiring a certificate before the boat goes to sea is not a rule “relevant” to the “manner” of operation in issue in this case. There is no causative connection. We do not reach the question of what the position might have been had the reasons for refusing the certificate included the inadequacy of the anchors. In this case the presumption created by s66 was not relevant. It should not have been invoked.
Section 66 was at the centre of the Judge’s directions to the jury. There must have been a real prospect of a miscarriage of justice.
The appeal against the conviction for breach of s65(2)(a) is allowed, the conviction is quashed and a new trial ordered.
Solicitors:
M S Sullivan and Associates, Nelson for the Appellant
Crown Law Office, Wellington
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