The controversial conviction of diver Arthur Castillo for involuntary homicide through negligence after his dive buddy tragically died in January 2020 has been overturned.
The rebreather diver's suspended sentence in November 2022 came under fire from the diving industry in Malta, as there were concerns that it set a precedent for divers in Malta, Gozo and Comino being held to a higher level of responsibility for their dive buddies than they would in other locations around the world – and face more-serious consequences in the event of an accident.
The overturning of the conviction has been welcomed on the islands, particularly by the Professional Diving Schools Association, which was critical of the ruling when it was made last November.
As reported on our sister site Divernet at the time, 35-year-old Maltese soldier, freediver and dive instructor Christine Gauci was diving at the popular Mgarr ix-Xini site on 18 January with 60-year-old Castillo. Gauci was using a twin-set, and Castillo was on a CCR. According to reports, she was also wearing an oversized, and defective, drysuit, despite not being trained in how to use one.
The fatal dive was littered with further errors and issues. Gauci's air fill came from a supplier using a compressor with ‘questionable maintenance', she had repeated buoyancy problems throughout the dive, got her fin tangled in netting at one point, and then made a rapid ascent to the surface. She was later found with her twin-set empty, but a sideslung nitrox 50 decompression tank still full, and could not be revived.
Castillo was subsequently found guilty of involuntary homicide through negligence and handed a two-year suspended sentence and ordered to pay two-thirds of the expert-witness costs.
However, yesterday at the Court of Criminal Appeal, Madame Justice Consuelo Scerri Herrera stated that the case could not all be put down to Castillo's negligence and that while the buddy system was established to ensure that assistance was available, it did not mean that the two divers were responsible for each other's actions.
The causes of death established by the post mortem had been both seawater drowning and coronary artery atheroma. One of Gauci’s arteries had been found to be narrowed by 80% of normal capacity, and this could not have been foreseeable before the dive.
Common sense showed he was not responsible for the female divers death
He was not responsible… and yet he could have called the dive when he saw how many problems she was having. It might have been wise to do that, but there were complications over and above what he could possibly have known about and who knows if she would have chosen to carry on alone had he said “enough”.
Any diver can end a dive at any time, for any reason or none. Realising that your buddy was in an unfit state to be in the water would be enough for many people. That’s not a criticism: he had dived with her before and presumably knew her capabilities well. Could have been different had they not been regular buddies or if she’d been less experienced/qualified.
I don’t think I’ll be diving in Malta any times soon, though. It’s good having rigorous investigations into incidents, this is how we learn. The apparent necessity in Malta of finding a live person to carry the can is off-putting, though.