The Director of Public Prosecutions v Clayton Patterson Smith & Roderick Watson

JurisdictionBahamas
JudgeMadam Justice Jeanine Weech — Gomez
Judgment Date16 November 2022
CourtSupreme Court (Bahamas)
Docket NumberInformation No.CRI/VBI/261/11/2018
Between
The Director of Public Prosecutions
and
Clayton Patterson Smith & Roderick Watson

BS 2022 SC 142

Before:

The Honorable Madam Justice Jeanine Weech — Gomez

Information No.CRI/VBI/261/11/2018

IN THE SUPREME COURT

Criminal Division

Appearances:

Ms. Raquel Whymns, appearing with her Ms. Shaneka Carey, for The Prosecution

Mr. Murrio Ducille KC, appearing with him Mr. Brian Bastian for both of the Defendants

RULING ON NO CASE SUBMISSION
1

This trial arises out of a boating incident in Exuma on the 30 th June 2018 as a result of which Clayton Patterson Smith and Roderick Watson were charged with the following offences:

2

The first Defendant Clayton Patterson Smith was charged with:

  • 1. Manslaughter by Negligence—contrary to Section 293 of The Penal Code (Chapter 84)

  • 2. Negligently Endangering a Vessel – contrary to Section 279 (1) of The Penal Code.

3

The second Defendant Roderick Watson was charged with:

  • 1. Manslaughter by Negligence—Contrary to Section 293 of The Penal Code And

  • 2. Negligently Causing Harm—Contrary to Section 281(1) of The Penal Code (4 counts)

4

Both Defendants pleaded not guilty to the respective charges on their arraignment and the prosecution commenced trial on 28 th October 2022. At the close of the prosecution's case counsel for the Defendants made a No Case Submission.

The Law
5

The guiding principles when the court is presented with submissions of “No case to Answer” at the close of the prosecution's case are set out in R. v. Galbraith [1981] 1 W.L.R. 1039. At page 1042 B-E Lord Lane CJ said:

6

How then should a judge approach a submission of No Case? (1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the Prosecution evidence is such that its strengths or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury… There will of course, as always in this branch of the law, be borderline cases. They can safety be left to the discretion of the judge.”

7

On a submission of “No case to answer” the judge has only to be satisfied that a prima facie case has been made out against the defendant. The judge does not have to find at this stage that the prosecution has established the offence beyond a reasonable doubt.

8

Case law has provided that on a No Case Submission the task of the judge is a balancing one, not to usurp the role of the jury who are the triers of facts. Equally it is the duty of the judge to safeguard accused persons from conviction on the facts which are so precarious, unsafe or insufficient that injustice would result.

Evidence
9

The Crown called fourteen (14) witnesses and the evidence of the witnesses that have factored in this decision is summarized as follows:

Stephanie Schaffer:
10

Ms. Schaffer testified that she was a passenger on a boat that exploded from beneath everyone. It was her family vacation which they had been planning for a while. She stated that the tour her family took was the Four Seas/ Four Seas Adventure. At the time of the incident she was 18 years old. She chose the seat on the boat to the front right. She said on that day the captain sounded energetic and excited, but also urgent and rushed. She was quickly startled by how fast the boat started upon heading out she said the boat was going really fast, super-fast from her recollection and she felt the need to grip her seat as she was afraid if she let go she would fall. She recalled flying in the air and hitting the water like hitting a wall. She does not have visual memories because of the impact but in those moments she recalled thinking she was dying and remember panicking to try and do something before it was too late to save herself, she tried moving in a running motion but couldn't move. The next time she got up was in a hospital room.

11

Ms. Schaffer relayed that she was in a coma for 1 month in Intensive Care Unit. She couldn't speak because of the tube in her trachea and she laid in the hospital terrified. Ms. Schaffer listed a series of injuries she sustained including breaking both arms in multiple locations, shattering both wrists, losing a significant amount of muscle in her left arm, broken multiple rib bones, broken sternum, pelvic bone, spine in 2 areas, lost both legs together with other injuries and that she is now a paraplegic having had up to 45 surgeries as a result of the explosion.

Inspector Dwayne Lewis
12

Inspector Lewis gave evidence that he is attached to the Marine Support Services arm of the Royal Bahamas Police Force. He was deemed an expert as a marine technician specialists and boat captain. He has an A Captain License and his training has also included fire prevention on boats, boat safety, navigation and chart plotting amongst others.

13

He stated that on June 30, 2018 he along with other officers were taken to the Barre Tarre Bridge in Exuma to the office of Four Seas Adventure. While there he viewed a vessel that had extensive fire damage on the right side or Starboard side of the vessel. There was extensive damage to the Hull. The Left side or Port Side also received damage but the color and sign of the boat which was white and yellow could still be seen. There were two 300 horsepower Yamaha motors with sustained fire damage but were not completely destroyed. Inspector Lewis stated that the boat was some 40 ft. in length with a catamaran type hull. The right side was completely damaged with extensive damage to the Bow. Inspector Lewis further testified that he had not seen the boat prior to that day.

14

Upon examining the vessel to ascertain the cause, he asserted that it appeared to be an explosion/fire. Investigation results included the following:

Stern:
15

Inspector Lewis explained that the stern was the back portion of the boat where the engines are affixed and stated that there was hardly any damage to the engine and stern but from the right stern area starting from the engines it was observed that there was a housing for the fuel filter directly above where the batteries were stored and the batteries were badly destroyed.

16

When asked if anything significant turned on this, he stated that the putting of flammable batteries on top of a fuel filter was not a good idea, and in this area was also a vice grip which is normally used for clamping something, tightening something that gets loose and would typically be used for a quick fix and that was not a basic maintenance tool.

17

He also stated that he took photos of the damage during his inspection.

Top Deck:
18

The entire top deck, the part to step onto the vessel was completely damaged so everything in the below section of the boat could be seen.

Rib of Boat or Stringers:
19

The fuel tank at the center of the vessel was damaged and had a hole on top.

Filler port:
20

This is where the vessel would be fueled up and where the fuel nozzle will go into to dispense fuel.

Hose connecting filler port:
21

The hose/filler port had a hole and the hose was completely gone. Normally there would be a 350/360 series heat / flame resistant coating these materials that were not present and the hose was not the proper size. The hose connecting the engine was still intact.

Bilge Pump Hose:
22

The bilge pump is typically used for water and sewerage. The hose of the pump sustained damage because it was not meant for it or outfitted for this particular pump.

Bulk heads
23

The boat did not have bulk heads which is the containment wall to prevent fuel spillage, sewerage etc. The hull was wide open and was said to create an atmosphere for an explosion.

Lack of Fire protection and Insulation
24

There was also no fire wall or insulation surrounding the fuel tank itself to prevent it from shifting and provide fire protection. There was also no insulation placed around the tank or hull. There were the remains of wires, copper wire were the only thing left behind and this was very concerning to him because if you install wiring you should use a fire protectant conduit and this was not present. If there was a conduit they would have used a heat protectant like PVC or Styrofoam to insulate wires and to prevent movement and shifting.

Batteries
25

Batteries having a positive and negative connection, sitting on top of a piece of metal could cause a metal spark which could cause further problems.

Bilge
26

Upon questioning, Inspector Lewis further explained that the bilge is the bottom portion of the boat that you don't see, it's below deck and a bilge pump and blower blow water and chemicals etc. out of the boat. There was no indication of any bilge pump on the boat.

27

When asked whether a vessel to take tourists excursions should have a homemade tank?

28

Inspector Lewis asserted that it can be used if it is tested particularly for leaks, pressure testing, safe to contain gasoline.

29

Inspector Lewis testified that the atmosphere was ripe for an explosion that there were three factors present and these included:

  • 1. Flammable Liquid: Gasoline spilling into the bilge from hose. Which could have been because of a ruptured tank, tank not insulated properly, shifting in boat, homemade tank...

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