No evidence that John Jonesse knew Ashika was unseaworthy, argues Laki Niu [1]
Monday, March 21, 2011 - 23:04. Updated on Monday, September 9, 2013 - 18:40.
DEFENCE counsel Laki Niu submitted to jurors in the Ashika trial that the Crown Prosecution had not provided any evidence to prove beyond reasonable doubt the eight counts against his client, John Jonesse.
In closing his argument this afternoon, March 21 at the Supreme Court in Nuku'alofa, Laki said that the Crown must prove that Jonesse knew the vessel was unseaworthy, "yet there was no evidence that Jonesse had known it was unseaworthy".
Jonesse is charged with eight counts of manslaughter by negligence in relation to the death of Vaefetu'u Mahe, forgery in relation to an Audit Document by David Shaw and knowingly dealing with the forged document.
He is also charged with five counts of sending an unseaworthy ship to sea, in that he is alleged to have known the vessel was unseaworthy yet he still sent it to sea.
Laki said the Crown must prove Jonesse was negligent and also that he was grossly negligent.
"If Jonesse had marine experience, like if he was a captain, then he might have known it was unseaworthy. But because he had no knowledge and had no marine experience the Crown must prove Jonesse knew very well that was the case of the vessel," said Laki.
He then asked for jurors to base their decision only on evidence in court and stressed that because the defendants chose not to give evidence it did not mean they are guilty as the onus of proof was on the Crown to prove beyond reasonable doubt the charges against them.
In the lead up to his final arguments Laki said that Tonga's Shipping Act was established so that vessels are surveyed before being issued with a certificate to permit them to operate in Tonga.
The authority of Registrar of Ships was given to the Director of Marine, a marine expert, who if satisfied with a survey of a vessel could issue a license of 12 months.
The current Director of Marine Viliami Tu'ipulotu, is a defendant in the trial.
No marine knowledge
In 2007 SCP decided not to hire a General Manager with marine experience, as they did with former manager Mosese Fakatou.
John Jonesse a New Zealander was appointed and marine expert, Vaka'uta Pola Vi, assisted him in advising about marine matters.
Laki said that, unfortunately, Vaka'uta left to teach at the Maritime Institute Fokololo and Jonesse was left by himself to operate the company and he then relied on the captain, mates and crew to advise him on marine matters.
Forgery
On the forgery charge, Laki said that the Crown must prove beyond reasonable doubt two elements, that Jonesse wrote Shaw's name or signature on the document and that he intended to deceive someone and if the Crown could not prove this beyond reasonable doubt he should be acquitted, he said.
Laki submitted that the Crown had not provided any evidence that Jonesse signed the alleged signature.
He said the only three witnesses the Crown had called in relation to this charge was, firstly, David Shaw himself who testified that he did not sign his name on the document.
The second was Kerry Bennett who in his evidence said when he signed the audit document there was no signature on it. And, lastly, there was the evidence by former Transport Minister Paul Karalus who made no reference to whom signed the audit document.
Laki then therefore submitted there was no evidence that Jonesse wrote down Shaw's signature.
"I ask you not to find anyone guilty based on your opinion of what could have happened because the law is clear. It requires that you must be sure that Jonesse himself wrote down the signature and if you are not sure then you must acquit him," the defence counsel said.
He said that the evidence in court had also showed that the content of the audit report was correct as said by Bennett and Shaw in court, who affirmed that the work they did was inspecting the Ashika's engine and gearbox.
"If the content of the document was false then there was an intention to deceive but the content was true," said Lakif.
Knowing
In regards to the charge knowingly dealing with a forged document Laki pointed out that the only evidence in regards to this charge from the Crown was Paul Karalus who said his office received the document. But he did not see that Jonesse submit the document and no one else was called to prove this, put Laki.
"There was nothing incorrect in the content in this document so I submit there was no intention to misled or deceive anyone."
Five counts
Regarding the five counts of sending an unseaworthy ship to sea on all of the Ashika's five voyages from July 3 to August 5, 2009, he said that the most important element here is that the Crown must prove beyond reasonable doubt that Jonesse knew that the vessel was in fact unseaworthy.
"No one can be found guilty if a person did not know that it was unseaworthy," he said.
Laki then recalled marine expert Mosese Fakatou's evidence in court that if SCP knew the vessel was unseaworthy then it should be guilty and, likewise, for the captain.
He said he asked Mosese: how about Jonesse considering he had no marine experience. "Mosese said he should also be found guilty because Vakauta was there to assist him, but I put to you that is false," said the defence counsel.
The only evidence given by Crown alleging that Jonesse knew the vessel was unseaworthy was that of Vaka'uta in which he told the court he saw pictures of vessel and made recommendations to Jonesse. But then this was the only thing that was not included in the list of deficiencies identified by the Marine surveyors who surveyed the vessel, said Laki.
He said Vaka'uta made a six page note and everything was in order while talking with Jonesse for about 40 minutes in their meeting. He submitted that Vaka'uta did this after the meeting when he returned to Fokololo.
He then noted Paul Karalus's evidence who told the court that the former Marine Director William Johnson had told him the vessel was seaworthy.
The vessel was also surveyed in Tonga and there was a list of deficiencies identified by surveyors who are all by marine experts, namely 'Onesi Tu'ifua, Vuni Latu and Lou Pale.
"Was Jonesse smarter than these people who are marine experts to say no it's not seaworthy," put Laki.
He said there was no evidence to say Jonesse was aware the vessel was unseaworthy. "The Crown must have evidence that he knew it but there was none," he submitted.
"Jurors you cannot assume that Jonesse knew it was unseaworthy because the law is clear in that the Crown must prove beyond reasonable doubt that Jonesse knew the vessel was unseaworthy and because you do not know you should acquit him," he said.
"What is most unfair is that if you convict any of the defendants considering from all of the voyages from July 3 to August 5, 2009 the vessel was never stopped. If the experts said the vessel was unseaworthy then why was it not stopped when it returned from its first sailing on July 3 and everyone arrested for sending an unseaworthy ship to sea?
"If it was unseaworthy why werent they charged then?" he asked the jurors.
Laki said that none of these marine experts in all of the Ashika's five voyages stopped the vessel because it was unseaworthy.
"It was only when it sank that they come running and said this and that about the unseaworthiness of the vessel. The defendants were then charged with unlawful act by taking an unseaworthy ship to sea and that was too late but that is not how the law stands," he said.