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Marine Incidents-Failure To Operate Safely Causing Death Or Gbh

What the law says

Section 43 of the Transport Operations (Marine Safety) Act Queensland states:

  1. A person involved with a ship's operation (including the owner, master, pilot and crew members) must not cause the ship to be operated unsafely.
  2. Without limiting subsection (1), a person causes a ship to be operated unsafely if the person causes the ship to be operated in a way that-
    • (a) causes a marine incident; or
    • (b) contravenes-
      • (i)   conditions of the ship's registration about safety; or
      • (ii) a provision of a regulation that is declared by a regulation to be a provision to which this section applies.
  3. However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the owner, master, pilot, crew member or other person commits an indictable offence and is liable to a maximum penalty of 5000 penalty units or imprisonment for 2 years.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:

The accused:

  1. Was involved with the ship's operation; AND
  2. Caused the ship to be operated unsafely by;
    • (a) Operating the ship in a way that caused a marine incident; OR
    • (b) Contravening a condition of the ship's registration about safety; OR
    • (c) Contravening a provision of a regulation that applies to section 43 of the Transport Operations (Marine Safety) Act; AND
  3. Caused the death of a person or grievous bodily harm to a person, by his or her failure to operate the ship safely.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

Maximum penalty - 5000 penalty units or imprisonment for 2 years;

Penalty unit = $100.00

Which court will hear the matter

This is an indictable offence.  It may be heard in the Magistrates Court or District Court.   To be heard in the Magistrates court, approval of both the accused and Magistrate must be obtained pursuant section 197 of Transport Operations (Marine Safety) Act.

Possible defences

Possible defences to this offence include but are not limited to:

  1. The accused was not involved in an operation of a ship.
  2. The accused did not cause the ship to be operated in a manner causing a marine incident.
  3. The accused did not operate the ship in a manner that was in contravention of a condition of the ship's registration about safety.
  4. The accused did no operate the ship in a manner that was in contravention of any regulation that applied to section 43.
  5. The accused's failure to operate the ship safely did not cause death or grievous bodily harm to any person.
  6. Duress - example: there was a threat of harm against the accused or another person that the accused reasonably believe would be carried out if he/she did do the act/s that constituted the offence.
  7. Necessity - example: There was some extraordinary emergency that compelled the accused to operate the ship in the manner that constituted the offence.
  8. Insanity.
  9. Identification i.e. the accused was not the offender.
  10. Mistake of fact - example: The accused had an honest and reasonable, but mistaken belief that his or her acts were in compliance with the ship's registration about safety.

Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in Marine Offence matters)

 

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