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A technical diver has spoken out about the judicial system in Malta that he says allows “expert” witnesses to testify beyond their level of competence – as occurred in the recent case of a scuba diver found guilty of manslaughter following the death of his buddy. 

The verdict was overturned when an appeals court judge found that the magistrate had attached too much weight to a medical expert’s flawed report. The judge concluded that the diver had in fact done everything that could reasonably be expected to safeguard his buddy.

Writing in the Times of Malta, diver Daniel Xerri, a senior lecturer in linguistics at the University of Malta, appears to have expressed the opinion of many in Malta’s diving industry, who believe that rebreather diver Arthur Castillo should never have been charged following the death of Christine Gauci in 2020. The details of the case were reported on Divernet and the overturning of the verdict came on 22 February.

“Justice can only be served if experts stick to producing reports that are a manifestation of factual accuracy rather than undertaking flights of fancy,” says Xerri in his article, insisting that court experts should be appointed on the basis of competence and possession of relevant experience rather than on their qualifications. 

He hopes that Malta’s Professional Diving Schools Association will push for this to happen in any future scuba diving cases, following the PDSA‘s firm line on the original guilty verdict.   

Beyond expertise

Castillo’s manslaughter sentence was quashed when it was shown that the damning report of a doctor specialising in hyperbaric medicine appointed by the court as a diving-fatalities expert had contained statements beyond his field of expertise.

According to Xerri, the doctor’s report had focused on both diving procedures and legal theory, even though he was not professionally competent to comment on either, and had failed to refer to past diving-fatalities studies.

The magistrate who found Castillo guilty had accordingly placed too much emphasis on the buddy system, because it had been integral to the doctor’s report that two divers were required always to stay close to help each other out should an emergency occur. 

The appeals court judge had understood that this did not mean that the divers were fully responsible for each other’s safety, especially given that Castillo was accompanying Gauci not as an instructor but as a friend on a recreational dive.

The hyperbaric doctor had not appeared to understand that technical divers like Castillo and Gauci were trained to “assume responsibility for their own safety and never to shift this responsibility onto their team-mates”, says Xerri. 

Also, despite being unqualified to comment on legal matters, the doctor had concluded that, besides Gauci’s contributory negligence there had been “negligent omission” of a rescue attempt on Castillo’s part. 

The appeals court judge had said that the doctor should not have expressed such views, and that the magistrate should have heeded the view of the appointed legal expert that Castillo should never have been charged with a crime.

Rather than being negligent, he had helped Gauci with a number of buoyancy and entanglement issues throughout the dive. Had he followed her up when she made a rapid ascent he would have endangered his own life, as confirmed by the magistrate court’s diving-equipment expert.

Steep price paid

Xerri suggests that in future magistrates responsible for appointing experts should ensure that their report covers all bases and excludes material in which they “take the liberty to wade through areas for which they are, at best, ill-prepared”. Crucial claims should be substantiated by case-studies and relevant literature.

“The decision of the appeals court confirms that the medical expert overstepped his professional remit in some of his pronouncements,” says the diver. “This led the first court to issue a verdict that unjustly convicted an innocent man of manslaughter and potentially damaged Malta’s diving industry.

“Even though justice prevailed in the end, a steep price was still paid.”

After the manslaughter verdict had been overturned, Castillo stated: “After years of waiting, and months of being wrongfully accused for the death of my friend, today’s judgment was a huge weight off my shoulders. The events in November were difficult to come to terms with and, as a result, I had almost completely lost my passion for diving.

“I’m happy with the verdict, not only for myself, but for the diving community as a whole, for the technical divers who can go for a dive with their buddy without worrying that they will be held responsible for an accident that is out of their control.“

Also on Divernet: Malta Dive-Pro Cleared Of Manslaughter, Instructor Cleared Over Malta Diver Death, British Diver Dies In Malta

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