NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Cittadini v R [2010] NSWCCA 291
FILE NUMBER(S):
2008/1008012
HEARING DATE(S):
JUDGMENT DATE:
9 December 2010
PARTIES:
Alexander Cittadini (App)
The Crown
JUDGMENT OF:
McClellan CJatCL Fullerton J Schmidt J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
S Odgers SC/D Priestly (App)
D Arnott SC (Crown)
SOLICITORS:
Mitchell Lawyers (App)
Director of Public Prosecutions (Crown)
CATCHWORDS:
CRIMINAL LAW
costs
application dealt with on the papers
conviction appeal upheld
whether it was reasonable for prosecution to institute proceedings
LEGISLATION CITED:
Costs in Criminal Cases Act 1967
Criminal Appeal Act 1912
Director of Public Prosecutions Act 1986
CASES CITED:
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Chahal v Director of Public Prosecutions [2008] NSWCA 152
Cittadini v R; R v Cittadini [2009] NSWCCA 302
Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510
R v Manley [2000] NSWCCA 196; 49 NSWLR 203
R v C [2009] NSWCCA 81
R v Cittadini [2008] NSWCCA 256
TEXTS CITED:
DECISION:
Certificate for costs granted.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2008/1008
McCLELLAN CJ at CL
FULLERTON J
SCHMIDT J9 DECEMBER 2010
CITTADINI v R
JUDGMENT
McCLELLAN CJ at CL: I agree with Fullerton J.
FULLERTON J: On 18 December 2009 this Court quashed the applicant’s convictions on each of four counts of manslaughter by criminal negligence and directed verdicts of acquittal (see Cittadini v R; R v Cittadini [2009] NSWCCA 302). A co-accused, Mr Adrian Presland, was acquitted by the jury.
The charges concerned the deaths by drowning of members of the crew of the yacht “Excalibur” in September 2002 when its keel broke at sea causing it to capsize. It was common ground that the keel failed because it had been cut horizontally through its entire width and then welded together during the course of its manufacture at the premises of Applied Contract Engineering Pty Ltd in Victoria. The applicant is the Managing Director of that corporation.
A coronial inquest into the deaths was held in 2005. The proceedings were instituted by the filing of an ex officio indictment in the District Court on 14 January 2008.
The relevant law
In an application brought pursuant to the Costs in Criminal Cases Act 1967 (“the CCC Act”) the applicant seeks a certificate for the costs associated with those proceedings on the asserted basis that it was not reasonable to institute the proceedings. Section 3(1) of the CCC Act provides:
“A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have…
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- AGLC
- Cittadini v R [2010] NSWCCA 291
- Case
- [2010] NSWCCA 291
- Decision Date
CaseChat Overview and Summary
The legal issues the Court was required to decide were whether it was reasonable for the prosecution to institute proceedings against the appellant for manslaughter by criminal negligence based on his failure to implement a safe system of work and whether the necessary causal connection between the death of the sailors and what is said to be the appellant’s breach of duty remained weak. The Court found that while there was some force in the Crown’s submission, it was difficult to overlook the fact that the alternate basis upon which a conviction was sought at trial was very much secondary to the Crown’s primary case, which suffered from a deficit of proof capable of establishing the appellant’s knowledge that the keel was constructed with a structural defect. The Court held that the necessary causal connection between the death of the sailors and what is said to be the appellant’s breach of duty remained weak and that it was not reasonable to institute the proceedings based upon the appellant’s failure to implement a safe system of work.
The Court of Criminal Appeal found that the Crown’s alternate case was contingent on a diverse range of variables of proof and approaches to proof which, while theoretically available, did not comprise a sufficient body of relevant facts to meet the test of reasonableness under s 3(1) of the CCC Act. The Court held that the necessary causal connection between the death of the sailors and what is said to be the appellant’s breach of duty remained weak and that it was not reasonable to institute the proceedings based upon the appellant’s failure to implement a safe system of work. The Court exercised the discretion pursuant to s 2 of the CCC Act and granted a certificate in relation to the proceedings instituted against the appellant by the prosecution. The Court also allowed the appeal in part by ordering a new sentencing hearing.
In conclusion, the Court of Criminal Appeal upheld the conviction of the appellant for manslaughter by criminal negligence but allowed the appeal in part by ordering a new sentencing hearing. The Court found that it was not reasonable to institute the proceedings against the appellant based on his failure to implement a safe system of work, which contributed significantly to the failure of the keel of a yacht and the death of four sailors. The Court held that the necessary causal connection between the death of the sailors and what is said to be the appellant’s breach of duty remained weak and that it was not reasonable to institute the proceedings based upon the appellant’s failure to implement a safe system of work. The Court granted a certificate in relation to the proceedings instituted against the appellant by the prosecution.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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