‘Gunner’s death could have been avoided through responsible recce’ - Lawyer

Magistrate Audrey Demicoli today heard the final submission over the involuntary homicide of an Armed Forces gunner in 2009.

Michael Tanti Dougal, appearing for the victim's family, argued it was hypothermia and a negligent recce that led to the loss of Gunner Matthew Psaila's life.

First to voice the submissions, the lawyer said the victim's family always demanded to know the truth about what transpired that tragic day. The events are crystal clear and speak for themselves, he said.

An inquiry launched by former Prime Minister Lawrence Gonzi in 26 May 2009 showed Lt Chris Vella was the top-ranking officer responsible for the exercise and welfare of the victim. Marvic Peregin was next in rank.

In previous exercise, the rifle and webbing were not used in the training. However the accused decided to include them, adding additional weight, which was uncalled for. A reconnaissance operation was held on the day prior to the exercise, however this was done in an amateurish way. The depth of the water was calculated with a bamboo stick and the temperature of the water was checked when one of the accused put his foot in the water.

Climate data exhibited by witnesses prove the island was hit by severe rain and hail overnight. This resulted in the level of water rising and the temperatures plummeted to 5ºC but felt like 3ºC due to the chill factor and cold wind.

The officers did carry another recce but took for granted the natural elements, Tanti Dougal said.

"Did the accused behave prudently and with caution or did they simply go ahead without further checks?" he asked.

All was well until a group of five soldiers found themselves in difficulty. "The report says they were struggling not to drown," the lawyer said.

Lance Corporal Peregin himself jumped in the water and brought four soldiers to safety after they went under. Some time had elapsed since the start of the exercise and hypothermia started setting in.

"The whole case rests on whether hypothermia could have been avoided." The negligent behaviour of the accused led to all soldiers suffering from hypothermia and the death of Gunner Psaila.

The evidence and the expert led the court to believe the tragic death could have been avoided. The accused could have postponed the exercise if he had a proper responsible recce.

"He knew the effects of hypothermia and lives could be lost. Equipment was on site to address this," the lawyer said.

Moreover the water at Chadwick Lakes was dirty and had large rats. The area was listed as a high-risk place.

The exercise should have been carried out at Mellieha Bay. Psaila was an able swimmer as proved by his buddy. Witnesses held they used to swim with Psaila at Birzebbugia as part of their army training. However Psaila's swimming abilities are irrelevant, the lawyer argued. "The incident brought to mind the victims of the Titanic who simply went under as soon as hypothermia set in".

Suffering from hypothermia, Psaila swallowed dirty cold water before being pulled out. He was undressed, placed in a thermal blanket and body heat applied. He was rushed to hospital but never regained consciousness and eventually died.

The lack of a serious recce led to infected water ending in the victim's lungs. The gunner was suffering from infections in his lung and his situation remained critical. He died three days later.

The court is currently in session. Joe Giglio will be voicing the submissions for the defence.

Vella, 27, of Zabbar and Peregin, 31, of Pembroke, stand charged with the involuntary homicide of Psaila.

Mr Psaila died three days after finding himself in difficulties at Chadwick Lakes on February 13, 2009 while wading through cold water in a tunnel.

Parte Civile concludes, defence presents introduction

The submissions a parte civile were heard over two hours.

Tanti Dougal concluded the accused could not hide behind

the term 'superior orders'. Quoting the Nuremberg Trials, he said the responsibility fell squarely on the officers in charge of the exercise.

With regard to punishment, case law shows how cases of involuntary homicide give the impression human life is not precious but cheap.

Legislators stated how a maximum of four years imprisonment was enough.

Giglio, appearing for the accused, said he would only highlight points in today's session. "This is a tragic event regardless of which you to look at it. However, we should not convict someone simply to address the blame," he said.

The parte civile did not review the inquiry report in its entirety. There was no distinction between the exercise planners and the directing staff as highlighted in the report. The report was referring to the HQ and AFM and not to the accused.

Laying down recommendations the report held that no individual could be held responsible for the gunner's death which was an accident.

The report cannot be dissected and its conclusions ignored.

Giglio underlined the sadness that it took the loss of a life for recommendations to be submitted.

The Inquiring Magistrate's report exonerated Pergin and recommended the police to follow the charged only against Vella. However, the parte civile argued against both officers.

The AG had recommended the police to institute criminal proceedings against both officers.

Nevertheless, in a civil case, the AG under oath claimed the incident was the result of misadventure and bad luck.

The lack of standard operating procedures and the facts that the accused needed training themselves as mentioned by court experts were left out by Tanti Dougal, the defence said.

The court expert's statements are directly opposite to the claims of the parte civile.

Concluding for the day, Giglio said he has reservations whether the victim was able to swim. Mario Scerri, Carmelo Bartolo and the victim's mother, Marian Psaila, all confirmed the victim did not know how to swim.

In previous exercises the gunner had told army officials he was unable to swim. The officials had reassured Psaila that should he fall into the water they will be here for him every step of the exercise.

"He had returned home happy because he did not fall into the water", she had told the court.

The court is adjourned until 27 June, when the defence will continue its submissions.