Cittadini v R

Case [2010] NSWCCA 291

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 J

9 DECEMBER 2010

CITTADINI v R

JUDGMENT

  1. McCLELLAN CJ at CL:  I agree with Fullerton J.

  2. 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.

  3. 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.  

  1. 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

  1. 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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Details
AGLC
Cittadini v R [2010] NSWCCA 291
Case
[2010] NSWCCA 291
Decision Date

CaseChat Overview and Summary

The case of Cittadini v R involved an appeal against the conviction and sentence of the appellant, Claudio Erle Cittadini, who was charged with manslaughter by criminal negligence. The appeal was heard by the Court of Criminal Appeal, which upheld the conviction but allowed the appeal in part by ordering a new sentencing hearing. The Crown had submitted that it was reasonable to institute proceedings against the appellant for manslaughter by criminal negligence 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 Crown also argued that the appellant was in charge of the construction of the keel and that it was reasonable to infer that he must have known that the keel had been cut, which was a structural defect. However, the Court of Criminal Appeal found that there was no reasonable basis for the institution of proceedings against the appellant for manslaughter by criminal negligence on this basis. The Court held 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 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

His Honour then went on to say: “[50] It is important that no one who saw the keel after it had been cut, welded and polished identified the fact that the cut had been made. Once polished the cut and welded section appeared consistent with the steel having been heated in that location to enable a bend to be created. I have referred to the relevant evidence in [15] above. [51] …[52] The ultimate submission which the Crown made both at trial and on the appeal was that because the appellant was in charge of the construction it was reasonable to infer that he must have known that the keel had been cut. Although it is entirely rational to expect that he should have been told of the work which had been done on the keel, there is absolutely no evidence that he was told that it had been cut. In his ERISP he said otherwise. [53] It is obvious that some person or persons cut the keel and one or more persons must know who that was. On the appeal the Crown submitted that the hypothesis consistent with innocence required that the unknown persons who performed the task of cutting, rewelding and attaching a second cover plate before polishing off the cut to disguise the weld marks did so undetected and that those same persons have chosen, notwithstanding the enormous tragedy which has occurred, to secrete the truth and remain silent. [54] In the course of his remarks on sentence the trial judge, as he was required to do, considered the evidence at the trial. His Honour concluded that the jury could not have convicted the appellant on the basis that he knew that the keel had been cut. In my opinion this conclusion was correct. If the appellant was convicted on this basis the conviction was unreasonable.”The significance of Mr Elliott’s statement and his evidence at the inquest to the first basis upon which the Crown put its case The Crown submitted that Mr Elliott’s statement and his evidence at the inquest was material to both of the bases upon which the case against the applicant was left to the jury. Mr Elliott was a fitter and turner employed at the applicant’s premises at the time that the keel was constructed. The relevant portions of his statement are as follows: “9. I did not have anything to do with the manufacture of the keel at this stage but I was in the bottom factory doing various duties with the fabrication of the boat. It would have been around the same time that I was rolling the hull of the yacht when I saw the following. I saw what I knew to be the keel completed in its raw metal state. By that I mean that it was fabricated to the point that only bulb needed to be fitted. The keel was clamped to a thick bench, there was a hydraulic jack or what is known as a porta-power of at least 4 inches in diameter between the keel and bench. I don’t remember how it was actually clamped to the bench but I know it was. From memory Claudio Erle said to me to go and have a look at what they were doing to the keel, the amount of stress that they were putting it under.10. The keel was clamped to Adrian Presland’s bench. He was the person working on the keel. I cannot remember any other person working on the keel with him. Although I saw Alex Cittadini talking with Adrian when the keel was clamped on his bench.11. I remember seeing the keel on Adrian’s bench, I’m not sure if the keel was clamped or not but I saw a cut running across from the leading edge of the keel to the trailing edge. Detective Senior Constable Dean has provided me with a drawn diagram. I have marked on this diagram where I saw the cut running from the leading edge to the trailing edge. I saw this cut only on one side as the other side was on the bench. I cannot be sure if the leading edge or the tailing edge of the keel had been fitted and welded when this cut was present. I remember the cut because I was quite surprised that anybody would allow it to be cut horizontally. Nobody in the right mind would put a cut in that position on a keel. For one you’re never going to get full strength out of the piece of steel after re-welding it. I had a laugh with the guys in the machine shop, Maurice Painter and Claude Erle about how much stress they were putting the keel under. I knew that the cut had been done by a 9-inch grinder. I could tell that just by looking at it. 12. I was in and out of the bottom factory and welding shop. The next time that I saw the keel was that it was still on Adrian’s bench and that the cut had been welded, reground and cleaned up. Where the cut was, the metal was of a different texture and appearance. It looked as though the weld had been sanded. This section was noticeable from the remainder of the keel. It was shiny across the face where the cut was. In my opinion it was not a clean up line for a heat-affected zone because of two reasons. One is that I saw the cut in the same location prior, and knew that it had to be welded and secondly why would you need to clean up a heat-affected zone when the keel was being sand blasted.”

Decision

Reasons for decision

CLELLAN CJ
In the result, the Crown submitted that on an objective analysis of all relevant facts when the proceedings were instituted, it was reasonable for the Crown to hold to the view that a jury could have been satisfied that the applicant’s failure to provide an adequate system of work caused the death of the four sailors by contributing significantly to the failure of the keel. The fact that the weight of the evidence of the need for and practice of pre-testing welders was diminished as the trial progressed, and that the availability of the dye penetration test was not adduced at the trial at all, is, as the Crown emphasised, not determinative of the question posed by the application under the CCC Act, namely whether the applicant has made good its submission that proof of causation on the alternate basis upon which the Crown put its case was so problematic that it was not reasonable for the proceedings to be instituted. Conclusion While there is some force in the Crown’s submission it is 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 – a case that this Court was satisfied suffered from a deficit of proof capable of establishing the applicant’s knowledge that the keel was constructed with a structural defect and that the yacht was delivered in this state. In [27] above, and for the reasons there stated, I concluded that there was no reasonable basis for the institution of proceedings against the applicant for manslaughter by criminal negligence on this basis despite the additional material upon which the Crown relied on the application. Even on the Crown’s alternate case, proof of the necessary causal connection between the applicant’s omissions and the death of the sailors was significantly diminished by the lack of evidence establishing the applicant’s knowledge (or means of knowing) that the keel was constructed with a structural defect. After close analysis of the evidence led at trial, and after taking into account the other relevant facts relied upon by the Crown in resisting the application for a certificate under the CCC Act, and the Crown’s analysis of those further facts, I am of the view that the applicant’s submission that it was not reasonable to institute the proceedings based upon the applicant’s failure to implement a safe system of work should be accepted. In my view, the necessary causal connection between the death of the sailors and what is said to be the applicant’s breach of duty remains weak. It is not that the Crown was without any basis for a case of manslaughter by criminal negligence on this alternate basis, but rather that it was a case 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. In these circumstances I consider it appropriate to exercise the discretion pursuant to s 2 of the CCC Act and to grant a certificate in relation to the proceedings instituted against the applicant by the prosecution.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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