HOLDING up photographs of welding damage and holes in the hull, the Crown Prosecutor 'Aminiasi Kefu told a jury that the MV Princess Ashika was grossly unseaworthy and should never have been sent or taken to sea with passengers and cargo onboard; and he asked: "How could they disregard this, would you disregard this?.

"One's heart would miss a beat when seeing the holes and appalling condition the vessel was in and these were photos taken on August 5, the day of its last voyage," said the Crown.

He submitted that the danger of the vessel was disregarded by the five defendants charged in relation to the sinking of the Ashika on August 5, 2009. The five collectively face 30 counts including one of manslaughter by negligence in regards to the death of a passenger Vaefetu'u Mahe (22).

"All defendants, apart from the first mate, sent the unseaworthy ship to sea and the captain took the vessel to sea, knowing it was unseaworthy."

He submitted that the defence was improperly hiding behind an unlawful Provisional Certificate of Survey issued on July 3, 2009 to the Shipping Corporation of Polynesia Ltd. and received by John Jonesse.

"They were warned by the deficiency list yet they did not prepare for the danger nor did they try and eliminate the danger. That is a criminal act and that is what the Crown is concerned with when the defendants knew of the danger yet they did not care resulting in the loss of lives. We have no doubt that the vessel was danger because of its unseaworthiness," he said.

All marine experts had said in evidence that the vessel was unseaworthy to sail on Tonga waters.

In addition, all of the defendants are marine experts with the exception of Jonesse, who had no had marine experience.

"How could they have disregarded the danger of the MV Princess Ashika, this is the question of the millennium," the Crown prosecutor asked.

"We have provided more than sufficient evidence to prove beyond reasonable doubt to your satisfaction the charges against all five defendants," the Crown Prosecutor submitted.

"The Crown is not concerned with the right and wrong in purchasing the vessel because it is not relevant to your consideration and this is not the charge against the five defendants. The issue for you to consider is what they did when they received the vessel," he told the jurors.

The five defendants are the Shipping Corporation of Polynesia Ltd., Acting Director of Marine Viliami Tu'ipulotu, former SCP Managing Director John Jonesse, the Ashika captain Viliami Makahokovalu Tuputupu and first mate Semisi Pomale.

Photographs

The Crown prosecutor reminded the jury of the photographs taken by surveyor Lou Pale on July 2, 2009 that showed the vessel was heavily corroded on the second day it arrived in Tonga from Fiji.

Secondly, the 84 photographs provided by Mosese Fakatou on August 4 and August 5 while he surveyed the vessel for the insurance company.

He pointed to the jurors when they compare these two sets of photos they could see the vessel was getting worse in regards to its corroded condition. "One could smell the rust just by looking at the photos!"

"This is our ultimate submission, there was never a time that one of the experts said the vessel was seaworthy and was fine to take or send out to sea."

He said the experts included Vaka'utapola Vi and the three Marine surveyors 'Onesi Tu'ifua, Lisiate Vuni Latu and Lou Pale who made a three-page list of deficiencies.

On top of that there was the report by Mosese Fakatou and there was never a part in his report that he said the vessel was fine and seaworthy to sail. In addition, was the welding work conducted by the Katoa brothers on the vessel and photos were shown of welding of damages and holes.

Evidence

He then pointed out to the evidence by the crewmembers who said waves struck the vessel leaving a V-shaped hole, and water coming into the vessel. They also gave evidence that at one time the water came onto the vessel and they also had to bail water out even from areas where water should not have entered like the crews' cabin and mess hall.

"And while eating they tried to open the scuppers and let water out in order to save their lives. The crew had reported these incidences to the first mate and captain and at times they received no response and one was sworn at. How could they have disregarded this?" asked the Crown Prosecutor.

Experts

He said that all of the defendants are marine experts with the exception of Jonesse who had no had marine experience. But he pointed out the Jonesse was surrounded by experts and that he could have sought advice regarding the certificate.

"They should have thought better and they should never have disregarded the deficiency list," said the prosecutor.

"Unfortunately they did not care about it and took the unseaworthy vessel to sea resulting in the loss of lives and this is the heart of this case and why we are here."

He then said the defence had submitted that it was reasonable to take vessel to sea under the circumstances.

The Crown prosecutor disagreed and said this was not a legal defence and did not apply to the circumstance the Ashika was in. "You should ignore this submission, by the defence," he said

Summing up

The Crown Prosecutor's argument was completed after over three hours in court.

This leaves Justice Robert Shuster to wrap up the case with his final summing up on Tuesday, March 29, before the jurors start deliberating on a verdict.