‘AFM structure, not accused, to blame for gunner’s death’ - Defence

It is incorrect to refer to negligence by the accused as the cause of Gunner Matthew Psaila's death, defence lawyer Joe Giglio argued today.

Magistrate Audrey Demicoli heard the submissions of the defence in the compilation of evidence against lieutenant Chris Vella and lance bombardier Marvic Peregin. The two stand accused with the involuntary homicide of gunner Psaila, who died on 13 February 2009 during an army exercise at Chadwick Lakes.

Replying to the submission of the family's lawyer, the defence said tragedies do not often require the blame to be put on somebody.

Quoting lawyer Michael Tanti Dougal's comment, "a message should be sent that life is not cheap", Giglio said the comment was out of line as at no point was life labelled as 'cheap'. This was proven by the fact that Peregin himself went into the water to rescue the soldiers. Furthermore the reference by the parte civile to the Nuremberg Trials was unrelated to the case, he said.

The defence explained how all three inquiries held subsequent to the tragedy pointed at the lack of standard operating procedures within the Armed Forces.  

"The blame lies with the AFM structure and not with the accused. Lack of safety measures was one of the reasons behind the unfortunate events, however gunner John Cachia who was in charge of safety is not in the dock," the defence argued. 

Court expert Mario Scerri documented the result of gunner Psaila's demise as death by drowning. He highlighted the victim did not know how to swim. For unknown reasons he did not raise his hand when the group was asked, prior to the exercise, if anyone had trouble swimming. Hence, he was treated the same as those who were proficient in swimming.

Under oath, court expert Brigadier Maurice Calleja told the magistrate that if the victim knew how to swim the tragedy may have been avoided.

Dr Giglio stated the accused had checked the exercise area three times before. The training was meant to put the soldiers through their paces at any eventuality. "It was necessary to have water flowing in the tunnel to create the difficult circumstances the exercise was meant to portray. Knowing this, the accused took all necessary precautions and prepared for the possibility of hypothermic attacks".

Gunner Psaila's death has been tragic for all involved: the family, the accused and the AFM all lost, the defence said.

"It's unforgivable; it took a tragedy for changes to be implemented in the AFM, but we should not look for a scapegoat," Giglio told the court.

Reports on end exonerated the accused and laid the blame squarely on the AFM structure. The issue is not whether hypothermia had set in or not, but if death could have been prevented.

"The victim was pulled out of the water and instantly treated for hypothermia in a professional manner. The fact remains that he could not swim. The depth of the water is of no consequence as the exercise required the ability to swim."

The defence lawyer concluded his submissions just shy of two hours.

"We are faced with a case of misadventure. The accused were not aware gunner Psaila was unable to swim. The victim himself failed to inform them. The accused could do nothing to prevent the soldier's tragedy and should be acquitted of any negligence," he said in conclusion.

The case will continue on 25 September when Magistrate Audrey Demicoli is expected to deliver judgment.

Stephen Tonna Lowell is also appearing for the accused.