Cross v McLean [2013] QDC 95

1 DISTRICT COURT OF QUEENSLAND CITATION: Cross v McLean [2013] QDC 95 PARTIES: BARRY JAMES CROSS (Appellant) v HARRY MCLEAN (Respondent) FILE NO: 52 of 2012 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court, Cairns DELIVERED ON: 3 May 2013 DELIVERED AT: Cairns HEARING DATE: 26 March 2013 JUDGE: Everson DCJ ORDER: Appeal allowed in part CATCHWORDS: APPEAL FROM MAGISTRATES COURT – CONVICTION – MARINE INCIDENT – SINKING – whether having regard to the evidence the vessel was safe – meaning of “seaworthy” APPEAL FROM MAGISTRATES COURT – SENTENCE – whether fine imposed by the learned Magistrate was manifestly excessive in all of the circumstances APPEAL FROM MAGISTRATES COURT – COSTS – whether the learned Magistrate erred in assessing costs payable by the appellant to the respondent s 222 Justices Act 1886 s 41 Transport Operations (Marine Safety) Act 1994 s 26 Transport Operations (Marine Pollution) Act 1995 Mbuzi v Torcetti [2008] QCA 231 COUNSEL: R. Sweet for the Appellant A. Roseler for the Respondent SOLICITORS: Richardson & Associates for the Appellant Department of Transport and Main Roads for the Respondent -- 1 of 7 -- 2 Introduction [1] This is an appeal pursuant to s 222 Justice Act 1886 (“JA”). [2] On 30 November 2011 the appellant was convicted in the Magistrates Court at Cairns of operating a ship, the commercial passenger vessel named “Haba V”, which was not safe contrary to s 41 of the Transport Operations (Marine Safety) Act 1994 (“TOMSA”). Subsequently on 17 February 2012 the appellant was fined $4000.00 and ordered to pay costs in the net amount of $10471.02. In this proceeding the appellant appeals against his conviction, against the fine imposed on the ground it is manifestly excessive in all of the circumstances, as well as against the amount of costs awarded against him. [3] In the course of delivering his decision on 30 November 2011 the learned Magistrate amended the complaint pursuant to s 48 of the JA restricting the period of the offence to 13 November 2010. The learned Magistrate also dismissed a further charge brought pursuant to s 26 of the Transport Operations (Marine Pollution) Act 1995 (“TOMPA”). [4] The charges arose as a consequence of the sinking of the Haba V on the evening of 13 November 2010 at the Port Douglas Marina. The appellant had been the master of the ship which had been used that day to convey tourists to and from the Great Barrier Reef. The Haba V is what is colloquially known as a dive boat. [5] The correct approach to determining an appeal pursuant to s 222 of the JA was summarised by the Court of Appeal by Fraser JA in Mbuzi v Torcetti1 in the following terms:- “On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions…” The Decision of the Learned Magistrate concerning s 41 of TOMSA [6] Section 41 of TOMSA is relevantly in the following terms: - “(1) The owner and master of a ship must not operate the ship unless the ship is safe. Maximum penalty – 500 penalty units or imprisonment or 1 year. (2) … 1 [2008] QCA 231 at [17]. -- 2 of 7 -- 3 (3) For the purposes of this section, a ship is safe if it is seaworthy, and is appropriately equipped and crewed, to meet the ordinary perils of the voyage on which the ship is proceeding or about to proceed.” [7] It was not controversial that the appellant was the master of the Haba V on the day in question and that it was a ship for the purposes of s 41. The focus of the trial before the learned Magistrate was whether or not the Haba V was safe. The term “seaworthy” is not defined in TOMSA. In this regard the particular focus of both the prosecution and the defence was on why the ship sank on the evening of 13 November 2010. [8] The prosecution called evidence from a highly qualified and experienced naval architect, Mr Ericson and also from an experienced marine surveyor, Mr Owens. The defence called evidence from a qualified and experienced marine architect, Mr Richards. The learned Magistrate accepted the evidence of Mr Ericson and Mr Owens in preference to that of Mr Richards. After summarising the evidence of Mr Ericson and Mr Owens as to the compromise of the watertight integrity of the ship and after dismissing Mr Richards’ hypothesis that the Haba V sank because of sabotage, the learned Magistrate stated:- “I am satisfied that the prosecution has established to the requisite degree that the stress cracks in the hull permitted water to enter which, over a period of time, unchecked by regular bilge pumping, caused the ship to list, the corroded exhaust line permitting the ingress of additional water once the list had reached 90 millimetres. The lack of watertight integrity allowed the water to swamp other voids causing the ship to sink to the sea floor, coming to rest on its port hull. From these conclusions I draw the inevitable conclusion that the ship was not in all respects seaworthy on the day it last operated. It was not in a condition, in my view, to encounter the ordinary perils of the voyage it had undertaken. Its hull was flawed, its engine should not have been operated at the speed at which the defendant admits it was. The ship’s lack of watertight integrity rendered it more likely to sink in the event of any number of marine incidents. It follows that the ship was not safe”. [9] In the notice of appeal and the prolix submissions of his counsel the appellant takes issue with the findings of the learned Magistrate in numerous respects. However, as noted above, my role is to review the evidence, weigh the conflicting evidence and draw my own conclusions. I need to determine whether on the evidence placed before the learned Magistrate, bearing in mind the advantage he had in seeing and hearing the witnesses, I am satisfied beyond a reasonable doubt that the appellant is guilty of the offence of operating the Haba V on 13 November 2010 when it was not safe. -- 3 of 7 -- 4 Relevant Evidence [10] Mr Ericson provided a report which was headed “Provisional Technical Report” and dated 13 November 2010.2 In it he recorded his observations and opinions from visual inspections of the ship, practical tests undertaken and results of a computer modelling exercise. He summarised these as follows: “1. Evidence of defects in the hull structure, both internal and external below waterline 2. Evidence of numerous repairs to defects in the hull structure by way of welding and sealant 3. Compromised watertight integrity of the hull shell envelope as a result of defects not repaired, repaired inadequately or repaired incorrectly 4. Compromised watertight integrity between hull compartments as a result of defects not repaired, repaired inadequately or repaired incorrectly 5. Compromised weathertight integrity of the hull above waterline as a result of holes not sealed or sealed ineffectively”.3 [11] Thereafter Mr Ericson concluded that the flooding and sinking of the Haba V occurred as a result of inadequate integrity of the hull both below and above the waterline and inadequate watertight integrity of the bulkheads between hull compartments.3 In his evidence in chief Mr Ericson confirmed he still held the opinions he expressed in his report.4 Mr Ericson was not shifted from his view in the course of cross examination. [12] Mr Owens provided a report in which he also summarised the numerous defects to the Haba V and the likely causes of it sinking.5 He summarised his findings and opinions in the following terms:- “After taking into consideration the information obtained during my investigation, I am of the opinion that the MV HABA V sank as a result of previous impact damage, stress and a lack of maintenance. I have come to this conclusion because: 1. There are cracks around the port keel, steering compartment and engine room hull plating 2. Attempts have been made to seal the cracks using sealant 3. Attempts have been made to weld the cracks in three places on the keel 4. The port keel is slightly bent 5. There is an indentation on the port shaft collar 6. There are corrosion holes in the generator exhaust line 2 EX 16. 3 Ibid p24. 3 Ibid. 4 T2-94. 5 EX 17. -- 4 of 7 -- 5 7. There is minimal watertight integrity between all compartments 8. Water tight doors were not secured when the vessel was unattended 9. The port main engine was partially secured by chain blocks 10. Entries in the ships log show that the vessel was operated while taking on water”.6 [13] In the course of his oral evidence, Mr Owens, as well as confirming the findings and opinions in his report, expanded upon various defects he had discovered during his investigation. These included that water was entering the vessel from cracks where there had been some welds,7 that the forward keel was slightly bent inwards,8 and that the main defect was water being able to enter through the port keel. 9 Mr Owens was also critical of the fact that the ship was being operated in circumstances where there were two chained blocks holding down the engine.10 He offered the opinion that he would not take the ship out to sea because he considered it unsafe.11 Mr Owens disagreed with assertions of Mr Richards that water entering the vessel through the hull did not make it unseaworthy.12 Mr Owens was not shifted from his views in the course of cross examination. [14] Mr Richards provided a report which was dismissive of the significance of the cracks in the hull of the Haba V.13 He expressed the view that the ship was seaworthy immediately prior to its sinking.14 Mr Richards expressed the view that the ship sank because it suffered a catastrophic failure and rupture of the fresh water tank in circumstances where it continued to fill with fresh water in the course of the evening after the crew had left.15 The difficulty with this scenario was that the appellant gave evidence that he locked up the vessel for the night after the freshwater tank had been filled and secured the watertight doors.16 Under cross examination the appellant also conceded that there had been no hose (the device used to fill the fresh water tank) on the ship at the time he left.17 When faced with this difficulty Mr Richards postulated a scenario involving persons unknown coming on the Haba V during the hours of darkness and deliberately sinking the boat. There was no admissible evidence before the learned Magistrate to support such scenario and he was rightly critical of Mr Richards for postulating it. Naturally I must bear in mind the advantage the learned Magistrate had in seeing and hearing the witnesses give evidence. I take into account that he was not kindly disposed to Mr Richards and it is 6 Ibid p 7. 7 T3-5, 30-31. 8 T3-5, 40-42. 9 T3-9, 1. 10 T3-9, 1-10. 11 T3-9, 40-41. 12 T3-21. 13 EX 20. 14 Ibid p15. 15 Ibid p13 16 EX 18, statement of appellant, para 21. 17 T3-101, 1-5. -- 5 of 7 -- 6 evident to me from a perusal of the transcript of the evidence given by Mr Richards that he adopted a somewhat partisan approach at times.18 Was the Ship Unsafe? [15] Pursuant to s 41(3) of TOMSA a ship is safe if it is “seaworthy, and is appropriately equipped and crewed to meet the ordinary perils of the voyage on which the ship is proceeding or about to proceed." These elements are disjunctive and cumulative. For a ship to be safe it must be seaworthy and appropriately equipped and crewed to meet the ordinary perils of the voyage. If it is not seaworthy it is not safe. As noted above the term “seaworthy” is not defined in the TOMSA. In the Australian Oxford Dictionary19 the term is defined as “fit to put to sea.” Like the learned Magistrate below I prefer the evidence of Mr Ericson and Mr Owens to that of Mr Richards. Their evidence needs to be assessed against a background of the ship having leaked regularly in the period leading up to 13 November 2010.20 The cracks which had developed in the hull structure and the numerous ineffectual repairs to the hull structure by way of welding and sealant which are recorded in the report of Mr Ericson and elsewhere, together with the other detailed defects recorded in the report of Mr Owens are such that I am satisfied beyond reasonable doubt that when the Haba V was operated on 13 November 2010 it was not fit to put to sea. I am satisfied beyond a reasonable doubt that it was not seaworthy and therefore not safe. [16] I therefore dismiss so much of the appeal as relates to the conviction of the appellant. The Appeal against Sentence [17] The maximum penalty prescribed pursuant to s 41 of TOMSA is 500 penalty units or imprisonment for 1 year. In fining the defendant $4000.00 and not recording a conviction against him the learned Magistrate correctly balanced the aggravating and mitigating factors before him. He noted the need for a deterrent sentence given the commercial use of the ship and the importance of the safety of the tourists who were carried by it. He also took into account the personal circumstances of the appellant and his good character. The sentence was in line with comparative sentences to which he was taken. The sentence imposed was appropriate. [18] I therefore dismiss the appeal against the sentence imposed. The Appeal against the Costs Orders [19] The learned Magistrate carefully considered the question of costs given the complexity of the proceeding before him in determining to exercise his discretion pursuant to s 157 of the JA and order the appellant to pay such costs as “seem just and reasonable”. In arriving at his decision the learned Magistrate noted that the prosecution case had been poorly prepared. He was only prepared to allow limited costs in the total sum of $11971.02. These costs 18 See eg, T3-160, 40-60. 19 2nd Ed, Oxford University Press 2004. 20 EX 9 and cross examination of the appellant generally. -- 6 of 7 -- 7 included costs in respects of an expert witness, Mr Ward in the sum of $2779.60. Regard to the transcript reveals that Mr Ward was a witness who was not engaged by the prosecution and that he was not prepared to disclose any of the four reports he had prepared to either the prosecution or the defence. He did not give evidence of any consequence and his reports themselves did not go into evidence. In these circumstances the expert witness costs relating to Mr Ward in the sum of $2779.60 should not have been awarded. [20] The learned Magistrate also awarded costs to the appellant in the sum of $1500.00 which related to defending the charge pursuant to s 26 of the TOMPA. It is evident from a perusal of the record below that the focus of the trial was on the safety of the ship. The learned Magistrates discretion towards costs in this sum in respect of defending this charge does not appear unreasonable and his discretion has not miscarried in this regard. [21] As the learned Magistrate ordered that the award of costs to the appellant should be offset against the order for costs in favour of the respondent I will allow this aspect of the appeal to the extent of deducting $2779.60 awarded in respect of Mr Ward from the net sum of $10471.02 and limit the award of costs to the respondent to $7691.42. Conclusion [22] The appeal is therefore allowed in part but only to the extent of varying the costs awarded to the respondent to $7691.42. [23] Having regard to the fact that appellant has had only very limited success in this appeal, it is appropriate that each party bear their own costs in respect of it. I therefore make no order as to costs. -- 7 of 7 --