Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 20 of 2015

Been v. Regina (CR-AP 20 of 2015) [2018] TCACA 5 (01 November 2018);

Law report citations
Media neutral citation
[2018] TCACA 5
Coram
Mottley, P
Hamel-Smith, JA
Stollmeyer, JA

IN THE COURT OF APPEAL TURKS AND CAICOS ISLANDS CRIMINAL APPEAL NO 20 OF 2015

BETWEEN PAULETTE BEEN APPELLANT AND REGINA RESPONDENT

BEFORE:

The Honourable Mr Justice Mottley                President

The Honourable Mr. Justice Stollmeyer          Justice of Appeal

The Honourable Mr Justice Hamel-Smith       Justice of Appeal

APPEARANCES:

Mr Courtenay Barnett for the Appellant

Ms Latisha Williams for the Respondent

01 November 2018; 22 March 2019

JUDGMENT

Stollmeyer, JA

[1]           On 01 November 2018, we heard and allowed this appeal. No order was made as to the costs of the appeal. This is the written judgment

[2]           This is an appeal from a decision of Schuster J sitting in an appellate capacity on an appeal from the Magistrates Court where the Appellant had been convicted of an offence under the provisions of Section 5 of the Coastal Protection Ordinance, Chapter 85.

Background

[3]           On 30 January 2014, the Appellant was convicted after a trial in the Magistrates Court of having:

"during the period October 2012 to November 2012 ... caused or permitted an offensive substance, namely oil to be deposited on the coast, namely the Columbus Landfall National Park at Governors Beach".

[4]           As recorded initially, the conviction included, "...the vessel Mega One Triton..." as having been deposited on the coast, but this was an error on the part of the person recording the conviction as was pointed out to the Court by Counsel for the Respondent.

[5]           Ms Been appealed to the Supreme Court under the provisions of Section 176 of the Magistrates Court Ordinance Cap 2:03. On 07 July 2015 Schuster J dismissed her appeal as to conviction, but allowed the appeal against sentence, but only to the extent of reducing the fine imposed by the Magistrate. Schuster J otherwise agreed with all the Magistrate's findings of fact and her conclusions.

[6]           The Appellant then filed a Notice of Appeal against the decision of Schuster J pursuant to the provisions of Section 18(1) of the Court of Appeal Ordinance Cap 2:01. A further appeal under the provisions of Section 18(1) can only raise a point of law and not a question of fact.

[7]           Rule 70(1) of the Court of Appeal Rules requires such an appeal to be commenced by way of motion. At the hearing of this appeal Counsel for the Appellant applied for and was granted leave to have the Notice filed initially treated as a motion after the error had been pointed out to him by the Court.

[8]           Before this Court, Counsel for the Appellant summarised the grounds of appeal as being solely issues of law and the failure of Schuster J and the Magistrate at the initial trial, to find that:

(1) the Appellant was not the agent of the vessel;

(2) the Appellant was a separate legal entity from the company P & T, under the principle of Solomon v Solomon [1887] AC 22;

(3) the Appellant was not the master or owner of the vessel, Mega One Triton.

[9]           It emerged at the outset of the hearing, however, that another issue arose for consideration, namely, whether as a matter of law, the finding of fact that the substance in the water was oil by the Magistrate and Schuster J was correct. This issue was considered essential to the outcome of the appeal and we consequently heard Attorneys on it.

[10]         Ultimately, the determination of this issue decided the outcome of the appeal. I therefore turn to an examination of the evidence.

[11]         That examination requires only a brief rehearsal of certain of the facts. The vessel Mega One Triton arrived in Turks and Caicos Islands around 26 May 2012. It appears that arrangements were made for the discharge of its cargo and it is clear that the P & T Agency was the agent of the vessel. The vessel then remained here for another five months. On 26 October 2012 it grounded on Governors Beach and subsequently oil, as it was described, was found in the sea and on the coast. Investigations were carried out by the relevant authorities and based on these findings a range of charges were laid against the owners of the vessel and the Appellant as its agent.

[12]         When examined in detail the evidence indicates that the witnesses said it was in their view oil which was the substance in the water, and that it had originated from the vessel. There was also evidence that oil was found on the beach, but there was some doubt whether this oil had originated from the vessel. As to there being oil in the water, it was only Kathleen Wood who provided anything more than her observation to ground her opinion.

[13]         Kathleen Wood, Director of DEMA since 15 August 2012, boarded the vessel. She says that in the engine room she saw and smelt a substance which she tested with her fingers and identified as petroleum.1 She did no testing and does not know if anyone tested it.

[14]         Her evidence was that she initially identified a liquid substance and that oil could be identified by "taste, touch and smell."2 She produced in the Magistrates Court three

"...documents all of which have been taken from an internet search on "how to identify a substance by smell, taste". I have printed the screen of the computer which shows a lab sheet from the course offering chemistry. This shows how to identify a substance and lists smell, texture and the various physical attributes by which one can identify it. There are other tests, such as reaction to water."3

1 Record Of Appeal pages 51-52

2 Record Of Appeal page 55

[15]         That "screen print"4 shows references to two websites: www.d123.org and http://wiki.answers.com. There is no evidence, however, to indicate that either of these websites are of any scientific authority or are to be treated as an authority.

[16]         Jodi Johnson, a scientific officer employed with DEMA since February 2008, boarded the vessel on or about 6 November 2012. She collected

"...water samples taken from the general area around the vessel and the compartment's of the vessel...in the event they could be tested and needed to be tested."5

[17]         She also said "I had never boarded the vessel like this one before to deal with oil" and gives no evidence about prior experience of identifying oil. She did, however, testify that she and a fellow scientific officer were participants in a training course conducted by the United States Coast Guard on the early identification and assessment of oil spills about one month prior to these events. It was by virtue of this training, without the need for scientific testing, that she was instructed on how to confirm or visually identify oil and it is by virtue of that plus general knowledge of both operations that the substance was identified and referred to as such - oily water. Scientific testing, she said, would only serve to determine hydrocarbon and other chemical aspects relative to identifying the specific oil. The Magistrate concluded that the substance was oil at paragraphs 23-24 and 36 of her decision.6 Schuster J agreed with this, and the Magistrate's other findings of fact.

[18]         It is clear that neither of these witnesses could have been regarded properly as experts. Ms. Johnson's training with the United States Coast Guard, for example, does not place her in that category, and this being the first occasion on which she had "...boarded a vessel...to deal with oil...", cannot clothe her with the skill derived from long experience. Her evidence was that she saw and smelt

"...what appeared to be an oil slick7 trailing from the stern of the vessel..." and that she made "...physical contact with this water containing the oily mixture essentially to confirm what we were seeing and smelling"

3 Record Of Appeal page 62

4 Record of Appeal- Exhibits pages 101-111

5 Record of Appeal page 68

6 Record of Appeal page 183, page 140

[19]         She followed the trail from the vessel to

"...somewhere just before the wall/drop off the National Park. ...we attempted to take photos but given the glare from the water...sometimes the slick cannot be seen clearly in water, but we tried."8

[20]         She collected samples

"... Not to confirm the presence of oil as we could see that, but to determine the type of oil which can be fingerprinted back to a source by hydro carbon analysis. So this was more of a finger print sample than an identification sample, in the event that we ended up in court."9

[21]         Paul Dickenson, Senior Conservation Officer at DEMA, with some eight years' experience at the time of the incident visited the vessel on 17 November 2012 and saw and smelt oil in the vessel. He has been a boatman for 20 to 25 years. He says10 that he put a rope into the water and it came up blackish/gold in colour. Also, in his presence, Jodi Johnson put on a white glove and dipped it half way into the hole in the port hole - all five fingers of the glove were a different color when she took it out of the water - blackish/gold in colour. She also collected water collected in a bottle and oil came to the top of the bottle.

[21] Mario Smith, a police officer attached to the Marine Division since November 2012 visited the vessel on 16 November 2012 and said that from about five feet away, he could smell machine oil: "it had a small is strong smell to it, like gear oil."11 In cross-examination he said the smell was coming from the vessel it was not diesel or gasoline.12 The slick was moving from the vessel.

__________________________________

7 Record Of Appeal page 70

8 Record Of Appeal page 70

9 Record Of Appeal page 70

10 Record Of Appeal page 21

[22]         He says that he had previous experience with gear oil when doing some mechanic work at the Marine Division's Maintenance and Engineering Department. He did not test for oil and doesn't "...know what type of oil it is".

[23]         Interestingly, he also said that

"...I don't agree that the waves that pushed the vessel could have pushed the oil slick. I don't agree that the oil slick was pushed in as it was a calm day and the current will take things out to sea. I'd agree that the same waves could push other things in but not the oil slick for the reasons given."13

[24]         Dominic Missick, a police officer in the Marine Division, also visited the vessel with PC Smith on 16 November 2012. In essence he confirms PC Smith's evidence as to the existence of the smell of oil but could not say what kind of oil it was.

Analysis

[25]         In sum, all of the witnesses say that when they visited the vessel they identified the substance in the water as oil. None of them, however, could testify to the substance being oil, or the water containing oil, on any basis other than touch or smell, save for Paul Dickenson who said that the rope and Jodi Johnson's white glove became discoloured after she put it into the water.

[26]         While that evidence may have formed the basis of the Magistrate's finding of fact that there was oil in the water, the Magistrate did not address the issue of whether Ms Johnson's evidence in this respect, or the evidence of any other witness, all of which was incontrovertibly opinion evidence, was admissible as expert evidence or, indeed, admissible at all.

____________________________

11 Record Of Appeal page 12

12 Record Of Appeal page 13

13 Record Of Appeal page 12

[27]         Schuster J agreed with the Magistrate's finding, saying that the Magistrate came to this conclusion taking a common sense approach after accepting Jodi Johnson's evidence that she, Jodi Johnson, knew that it was oil.14

[28]         Whether the liquid substance in the water was oil is a matter for the opinion evidence of experts; either duly qualified in that field and with sufficient experience, or by virtue of long experience and expertise developed over that period.

[29]         It was accepted readily by Counsel for the Respondent that there was no forensic examination or analysis of the samples of the liquids collected from either the vessel itself or the sea surrounding it. Further, Counsel for the Respondent also accepted that none of the witnesses had by virtue of long experience or qualifications the expertise to conclude that these liquids were in fact oil, as alleged. It is to be remarked that Counsel's acceptance in these respects was entirely proper and appropriate.

[30]         In the Magistrate's Court, the common law applies as to procedure15 and it is long accepted that experts give evidence and do not decide an issue.16 At the trial of fact, either judge, jury or magistrate retains the power of decision.17

[31]         The opinion of a skilled witness is admissible where the competency to form an opinion can only be acquired by a course of special study or experience18 and unless the primary facts are within the expert's own knowledge established by direct testimony, the facts must themselves be proven.19

[32]         An expert's evidence is necessarily founded on his training and experience. He or she must have the advantage or particular skill or training.20

__________________________

14 Judgement of Schuster J, 07 July 2015 page 8

15Phipson on Evidence 17th Ed at paragraph 33-43

16Phipson paragraph 33-12; Metropolitan Properties Company (FGC) Ltd v Lannon [1968] 1 All ER 354

17 Phipson paragraph 33-12

18Phipson paragraph 33-09

19Phipson paragraph 33-09

20Phipson paragraph 33-10

[33]         The opinions or beliefs of witnesses who are not experts are generally not admissible but may be admitted in proof on the grounds of necessity because more direct and positive evidence cannot be obtained.21

[34]         It has long been held that evidence as to the nature of a substance is of the opinion evidence of an expert. The evidence of the substance in the water being oil is opinion evidence which of necessity must be given by an expert.

[35]         Neither Kathleen Wood nor Jodi Johnson, nor any other witness were introduced as an expert. The evidence of the Police Officers was based on their relatively short experience in the Maintenance Department, and although Paul Dickenson said that he had 20 years of boating experience he gave no basis for opining that the substance was oil, only that he recognised it as oil.

[36]         Most important is that none of the witnesses can be said to have demonstrated that they meet the duties and responsibilities of an expert as set out in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer)22 which, although a decision in the civil jurisdiction, has been approved generally. As set out there, those duties and responsibilities considered relevant to the present case are:

"1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: Whitehouse v. Jordan [1981] 1 W.L.R. 246 at 256, per Lord Wilberforce.

2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise: Polivitte Ltd. v. Commercial Union Assurance Co. plc [1987] 1 Lloyd's Rep. 379 at 386, Garland J. and Re J [1990] F.C.R. 193, Cazalet J. An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J, supra).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with on indication that the opinion is no more than a provisional one (Re J, supra). In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report: Derby & Co. Ltd. and others v. Weldon and others, The Times, 9 November 1990, per Stoughton L.J.

_________________________

21Phipson paragraoh 33-69

22 1993 FSR 563 per Cresswell J

[37]         In this case, more direct and positive evidence could have been obtained by forensic testing and analysis, but there is nothing to show that any effort was made to do so although samples of water were taken for that purpose, for example by Jodi Johnson. It was not suggested that she, or any other witness, gave evidence as to the nature of the substance in the water on the ground of necessity.

[38]         The omission to carry out testing and analysis and adduce that evidence cast doubt on the conclusion arrived at by the Magistrate and agreed with by the Schuster J that the substance in the water was oil, at least to the point of beyond a reasonable doubt.

[39]         More important, however, is that the failure to test leaves open the question whether the substance found on the coast in fact originated from the vessel. The only way in which that could be confirmed was by testing samples both from the vessel and from the coast and demonstrating that the type of oil found in both places could be "...fingerprinted back to the source by hydrocarbon analysis..." as Ms. Johnson said in her evidence.

[40]         The absence of such testing and proof leaves the issue open to doubt and both the Magistrate and Schuster J fell into error when they failed to consider the law on the giving of expert evidence, and the opinion evidence given by non-experts who were not qualified to give opinion evidence.

[41]         The consequence of all this is that both the Magistrate and Schuster J fell into error on an issue of law. The Magistrate admitted evidence which was inadmissible and came to conclusions based on that evidence. Schuster J agreed with the Magistrate and neither of them considered the issue of admissibility. This was a material error of law which allowed this court to interfere with the findings of fact below23 and this was a case in which it was appropriate "... to interfere with concurrent findings of fact of two lower tribunals" based on "... the neglect of some principle of law or procedure... ”.24

Disposition

[42] For these reasons the appeal was allowed. No order made as to the costs of the appeal and it was not considered necessary to deal with the other grounds which had been raised.

H. Stollmeyer

Justice of Appeal

I agree

E. Mottley

Justice of Appeal

I agree

R. Hamel-Smith

Justice of Appeal

_______________________________

23 See Sandra Juman v The Attorney General of Trinidad & Tobago [2017] UKPC 3 at paragraph 14 citing Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 at paragraph 67.

24Sandra Juman at paragraph 15 citing Devi v Roy [1946] AC at page 521