Presland v DPP

[2009] NSWDC 178

CITATION:	Presland v DPP [2009] NSWDC 178
HEARING DATE(S):	22/05/2009
JUDGMENT DATE:	10 July 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Application granted. Certificate to issue.
CATCHWORDS:	Criminal Law - Costs - jury trial - manslaughter by criminal negligence
LEGISLATION CITED:	Costs in Criminal Cases Act 1967
CASES CITED:	Mordaunt v DPP [2007] NSWCA 121 Allerton v DPP (1991) 24 NSWLR 550 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203 R v McFarlane (12/08/1995 (unreported) ) R v Presland [2009] NSWDC 71
PARTIES:	Adrian John Presland - Applicant DPP - Respondent
FILE NUMBER(S):	2088/00001007
COUNSEL:	Mr P Gray SC with Mr Messer - Applicant Mr P Barrett - Respondent
SOLICITORS:	Alpass & Associates - Applicant Director of Public Prosecutions - Respondent

JUDGMENT – Application for Certificate pursuant to Costs in Criminal Cases Act 1967

1 Adrian John Presland (the applicant) seeks a Certificate pursuant to s 2 Costs in Criminal Cases Act 1967 (“the Act”) in respect of his acquittal on four charges of manslaughter preferred by the Director of Public Prosecutions on 24 February 2009. The applicant was found ‘not guilty’ in respect of each count on 1 April 2009. The co-accused, Alexander Cittadini, was found ‘guilty’ in respect of each count the following day.

The background

2 The applicant was employed as a foreman/boilermaker at a business that was controlled by the co-accused and his family. That business, hereinafter, will be referred to as “Applied Engineering”. Mr Cittadini had contracted in April/May 2000 through a business vehicle called “Applied Alloy Yachts”, controlled by him and part of the Applied Engineering Group, to construct a yacht with a fellow member of the Royal Melbourne Yacht Squadron, Mr Alan Saunders. When built it became known as “Excalibur”. It began sailing in early 2002. It was a ’50 ft’ yacht, to be part of a series to be called "Extreme 50” yachts. Excalibur was constructed with a ‘fatal’ flaw in its keel. The keel had been cut horizontally on both sides of it and the cut welded back together, probably, in my view, to fit a retractable ram with a ‘piston’ attached designed to raise the keel when moored in shallow waters. The Crown case against the applicant was that he fabricated and “constructed” the keel and that he was the person that made the horizontal cut and welded it negligently. The Crown case, in summary, against Mr Cittadini was that he knew of the horizontal cut to the keel and permitted the cut and weld to be done, or, alternatively, he failed to provide an adequate system of supervision to prevent the cutting and welding occurring.

3 The keel comprised two sheets of ‘SAF 2205 – stainless steel’ that were cut, fabricated, rolled and ultimately welded together in a manner that is shown in a generally representative way in Exhibit 1 at the trial. The keel when completed had a compartment extending from the ‘top’ of the keel into its interior to a depth of approximately a metre between the gussets, or ribs, that helped stabilise the structure. Into this compartment the hydraulic ram was to fit, to be connected at the base of the compartment to a ‘clevis’ point or attachment, so that the keel could be raised. Mr Presland also constructed a ‘box’ on top of the keel above and around the ram compartment. The keel was constructed in the applicant’s work area forming part of one of two or three separate factory buildings and areas, each dedicated to different factory activities such as boiler making, fitting and turn and the like. The keel once completed was ultimately attached to the hull and the yacht completed but for rigging and other scantlings in an area separate from the applicant’s work area (see Exhibit D series).

4 Excalibur after shake down sails on Port Phillip sailed to Sydney then sailed in a race to Southport. On 16 September 2006 it competed in “winter” races in the Whitsunday Islands. It was returning to its home ‘base’ at Melbourne when it sank off the New South Wales coast approximately 20 miles east of Seal Rocks. Six crewmembers were on board. Four of them died by drowning. Only one body was recovered. The cause of the capsize was that the keel “broke in half” under the pressure of the conditions, with the bottom half of the keel breaking away along the line of the horizontal cut and the welding line, first on the starboard side (after extensive fatigue cracking over weeks or months), then the port side line broke away within minutes. When the yacht was recovered after capsize, a stump of the keel was still intact and about 60 percent of the ram piston. Hence, four charges of manslaughter by reason of criminal negligence were brought against the two accused for their role in the construction of the keel or (in the case of Mr Cittadini) for permitting the yacht to be delivered with this serious defect.

Relevant Legislation and Principles to be applied

5 The Costs in Criminal Cases Act, 1967 relevantly provides:

“s.2 The Court or Judge ….. in any proceedings relating to an offence … punishable … upon indictment may -

(a) where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.

s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… 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 contributed, to the institution or continuation of the proceedings was reasonable in the circumstances”.

6 The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. An important judgment concerned with their interpretation relevant to this matter is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that matter the Court held:

“… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial, during the trial or afterwards, admitted under s.3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings ” (559G-560B) – emphasis added.

7 In Mordaunt v DPP [2007] NSWCA 121, McColl JA gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. These are set out at [36] of her judgment and the relevant matters to this application she identified may be summarised as follows:

i. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes.

ii. The “institution of proceedings” in s.3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill.

iii. The applicant for a s.2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances.

iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: “if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?”

v. The judicial officer considering the application must find what were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted “it would not have been reasonable to institute (the proceedings)” – an applicant for the Certificate must succeed on both the “ facts issue ” and the “ reasonableness issue ”.

vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with the threshold question posed by s.3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s.3(1)(b) and to the ultimate question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s.2 (of the Act).

vii. Courts should not attempt to prescribe an exhaustive test of what constitutes “unreasonableness” for the institution of the proceedings, but the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (viii)-(xi) below in part).

viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious.

ix. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence.

x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal.

xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder. If the question for a jury depended upon “word against word” in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.

xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution.

xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges.

xiv The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate.

8 In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because “it is necessary that justice be seen to be done”. Her Honour Justice Simpson, stated:

“I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that “it is necessary that justice seem to be done”. The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction” [19]. (Also see [16]).

Course of the Proceedings

9 Before the trial commenced there was a coronial inquest held in 2005. The matter was referred to the Director of Public Prosecutions and on 14 December 2007 the learned Director filed an indictment alleging four offences of manslaughter against Mr Presland and Mr Cittadini. The trial of the two accused commenced on 23 February 2009, with the acquittal of the applicant in early April, which provides jurisdiction for this application to be made.

10 On acquittal the Court was advised of Mr Presland’s intention to make application for a certificate under the Act. That application was heard on 22 May 2009. Both parties provided written submissions, with the applicant filing an affidavit from his solicitor, part of which was objected to by the prosecution and rejected. The details of the rulings I made on admissibility of parts of that affidavit I need not dwell upon for the purposes of determining this application. I have had regard to the evidence at trial and the limited additional evidence on the application from the applicant (s 3A(1)(b) of the Act). There is no further evidence from the respondent. The evidence from the affidavit of the solicitor I have taken into account are paragraphs 1-3, 27-30 inclusive, although the determination of this application primarily proceeds on the basis of the evidence at trial.

Submissions of the Parties

11 The applicant submits, in the context of the character of the Crown case against him (para 8-9 – applicant’s submissions), that given it was an entirely circumstantial evidence case to prove Mr Presland’s guilt, it was essential for the prosecution to exclude the reasonable possibility that someone else, other than the applicant, was responsible for the horizontal cutting of the keel and the re-welding of it. Having regard to the relevant legal tests, and “all the relevant evidence”, it is submitted that the evidence inconsistent with guilt was “overwhelmingly strong” and that the prosecution had not reasonably instituted the proceedings.

12 Matters identified as showing the “inevitability” of acquittal, in the context of the case conducted by the prosecution, included evidence at trial that:

i. other persons had opportunity to cut the keel and re-weld it,

ii. evidence at trial established the applicant’s standards as a tradesman were inconsistent with the level of craftsmanship particularly in the re-welding of the keel,

iii. there were other persons employed by “Applied Engineering” who were not good welders,

iv. there was a reasonable possibility that different welders were responsible for different quality of welds,

v. there was evidence to show that the applicant had no connection with work involved in fitting the hydraulic “ram”, one reason advanced at the trial for making the horizontal cut,

vi. no rational or plausible reason was ever advanced for Mr Presland to have made the horizontal cut,

vii. there was evidence that, given the time it would have taken to make the horizontal cut and re-weld it, this could have been done without the applicant knowing that it had occurred and the polishing of the weld and the like covered up the horizontal cut to the point that nobody noticed it,

viii. the applicant always denied being responsible for the horizontal weld,

ix. the applicant’s good character was inconsistent with guilt and supported his credibility in his denial.

13 It is submitted for the applicant that not only was it impossible for the Crown to prove beyond reasonable doubt that the only reasonable inference to be drawn was that the accused was responsible for the horizontal cut and weld, but that “no inference was capable of being drawn beyond reasonable doubt” that it was Mr Presland who carried out the relevant horizontal cut and re-welding. Furthermore, no act or omission of the applicant contributed to the institutional continuation of the proceedings. It was agreed by the applicant that whilst the inference of innocence was not the only inference available, it was an inference that the prosecution had failed to negative.

14 The respondent in its submissions concedes that the applicant was not responsible for any act or omission that contributed to the institution or continuation of the proceedings that was not reasonable.

15 In its submissions the respondent states that the inference of the applicant’s involvement in the “cut and weld” was a matter to be considered in the context of all the evidence, including that the applicant had disputed before the trial that the construction had been completed before the horizontal cuts and re-welds had been carried out but changed his position in the course of the trial. The respondent did not concede that the prosecution was always going to be incapable of proving what it was required to be proved. It submitted that the ultimate issues for determination were exclusively in province of the jury and that in the circumstances where the matters for determination were “quintessentially within the realm of the ultimate fact finder”, there was no unreasonableness in instituting the proceedings (R v Manley (2000) 49 NSWLR 203 (at 206)).

16 Furthermore, the Crown submits that there was “nothing in the evidence that establishes that someone other than the applicant” was responsible for the horizontal cut and re-weld. The respondent submits that the issue of what inferences were to be drawn was a matter for the jury hearing all the evidence not a situation where there was only one inference available adverse to the prosecution. The prosecutor conceded in his oral submissions that the inference of innocence does not have to be ‘overwhelmingly strong’ for a certificate to issue, but because there were reasonably competing inferences or hypothesis this was exclusively for the jury.

17 In these circumstances where there was a prima facie case and where the evidence fell “far short” of proving that the applicant did not carry out the contentious cutting and re-welding there was nothing that supported the proposition that it was not reasonable for the respondent to have instituted the proceedings. The issues relating to his good character and competence did not militate in favour of the applicant’s contentions.

18 It is submitted by the Respondent that not only was it reasonable to have instituted proceedings but failing to do so would have “invoked a real sense of disquiet in the community”. Other parts of the written submissions were concerned with objections to evidence which have been dealt with and need not be discussed here.

Consideration

19 The Crown case to prove the ‘guilt’ of the accused (as opposed to proving that he fabricated and constructed the keel, which he admitted) was, ultimately, entirely circumstantial. Of course, as is well known, a circumstantial evidence case can be as compelling, if not more so, than a case dependent upon direct evidence inculpating the relevant accused.

20 In order to prove the guilt of the accused, the prosecution sought to establish that Mr Presland was the person who relevantly cut and welded together the keel. It relied upon proof of the fact, uncontested, that the keel ought not be cut (it had the potential to weaken the structure of the keel) but also that the welding was of poor workmanship and incomplete. The combination of the cutting of the keel and the welding was grossly negligent such as to establish the crime of manslaughter in respect of the each of the resultant deaths. These issues were not generally disputed. There was some evidence that if ‘properly’ welded with adequate preparation and ‘full penetration’ welds, the keel’s skins, theoretically at least, should be as strong as if not cut. If properly welded however, there probably would not have been any trial. The “starboard weld” of the horizontal cut was on average only to 45 percent of penetration, the port side weld was more complete, but both welds had poor preparation.

21 The keel was designed to be a retractable keel, that is a keel that could be raised within the yacht’s hull cavity. The construction of the keel required the joining of two sheets, or “skins”, of SAF steel 8 mm thick, these skins being bent, or rolled, to provide an aerofoil shape, welded together at the rear and each welded to a leading edge tube (or pipe), referred to in the trial as “the leading edge”, presumably to make the keel water-tight and/or ‘aerodynamically’ functional. From the top of the keel into the interior of the keel space between the two skins a ram compartment was constructed into which was to fit the hydraulic ram which would lift the keel upwards or downwards to facilitate the mooring of the yacht in shallow waters. The main experts who gave evidence, Mr Gray and Associate Professor Yeomans, generally agreed that, putting aside the timing of the horizontal cut to the keel, Exhibit 1 is a reasonable diagrammatical representation of the steps in the construction of the keel. These experts were reasonable, pragmatic undogmatic witnesses and ultimately they were generally in agreement. Mr Gray in the prosecution case made many concessions that supported Mr Presland’s case. Exhibits J and K, various photographs taken from Mr Gray the prosecution’s lead metallurgist, fairly show the detail of welding work associated with horizontal cut to the keel and in other parts of the keel, including the respective “cover plates”, that were placed on the starboard side of the keel to enable access to the ram compartment I presume to help fit the hydraulic ram to the bottom of the ram compartment or inspect the keel internally.

22 The key to the prosecution case in summary was that Mr Presland built the keel fin (constructed separately to the hull), but not the bulb at the end that provided ballast weight, that the cutting of the keel and the welding occurred before the completion of the construction of the keel, including the attachment of tube (or pipe) at the leading edge of the keel and a ‘box’ on top (still seen on the keel stump produced at trial), and that, in these circumstances, only the applicant would have been responsible for the cut and welding back together of the separated pieces of keel skins. There was no evidence of anyone else working on the keel fins, except Mr Harris a boilermaker/welder who helped out. There was however no evidence that the accused was observed cutting the keel and welding it as alleged. It was agreed at trial that the horizontal cut occurred after the first cover plate for the ram compartment placed on one upper side of the keel had been made by Mr Presland, but before a second, or replacement, ram cover plate, apparently bigger than the first, was cut and had been welded into place. It did not matter, on one view, for the purposes of proof of guilt, as to what was the reason for the horizontal cut and welding. On the other hand, as the evidence suggested that the fitting of the hydraulic ram had nothing to do with the applicant, the Crown case was stronger if another reason could be established or pointed to in the evidence. There were three or four possibilities identified as reasons for cutting the keel in the view of Mr Gray, the prosecution’s lead expert on metallurgy issues. These included, an inference that the cutting and the welding was to accommodate the aerofoil shape of the keel, to overcome shrinkage from welding the skins and gussets or ribs, to bend the sheets down to be welded together or, to enable the ram “compartment” to be expanded or adjusted to house the hydraulic ram to be fitted or inserted.

23 Mr Presland, at an early stage of the investigation, was interviewed in Victoria by New South Wales Police in January 2003 and admitted to building the keel. At that time it would appear the investigators had information from an expert metallurgist about some aspects of the keel’s construction. I understood the complete opinions of Mr Gray, or any other expert, were not available. Certainly they were not disclosed to Mr Presland in the questions he was asked. He suggested in this interview that the keel had been cut and welded after the completion of the keel by him, which included the welding of various ribs to enable the two sheets of the keel, or skins, to be connected, the making of the aerofoil shape, the construction of the ‘box’ on top and the placing of the ‘tube’ or pipe at the leading edge. He did not mention any cuts to the keel fins, just the probability of bending them. The expert evidence, produced by the Crown at trial, was capable of establishing that the horizontal cut to the keel and the welding occurred before the leading edge tube had been attached, as there was no evidence of any grind marks, consistent with the cutting of the keel with a 9 inch grinding disc, upon the tube or in the vicinity of the welding of the tube to the skins or gussets. The accused produced evidence from a very highly qualified metallurgist (Assoc. Prof. Yeomans) who gave evidence at the trial that his examination permitted a possible conclusion that the cut to the keel occurred after the leading edge pipe was connected. But the significance of that opinion and any conflict in the evidence on this issue fell away as an issue for consideration as the real issues in the trial progressed. In any event the accused, in the context of his denials was not in a position to say when the cut occurred. It was such a significant alteration to the keel’s fabrication it was natural for him to assume at the time of interview it happened after the keel passed out of his hands. He was building the keel over a number of months from after July 2000 (when the SAF steel was delivered) until 2001. He had other jobs to do unrelated to the yacht.

24 One of the significant features of the evidence in the case, putting aside for the moment the sworn denials of the accused concerning cutting the keel and then welding it back together, was that the welds that Mr Presland admitted to having done, such as the internal welding of the gussets used to join the skins together, welding along the lead edges with seal welding, the welding of the first cover plate, and the like, were of “good commercial quantity” and were satisfactory and adequate for the purposes of constructing a keel that would be “fit for purpose”. The evidence of the welding of the skins at the horizontal cut line together and the welding of the second cover plate, was universally agreed between the metallurgists to be not of good commercial quality, in fact of very poor quality. There was evidence of very poor welding in another area of the yacht, the rudder housing under the wheel for which there was no responsibility on the part of the applicant. Nor was there any suggestion to the applicant that he was responsible for that welding.

25 A matter advanced by the prosecution to the jury in its closing address, was that the cutting of the keel at the heart of the Crown case was concerned with various aspects of the construction of the keel, and/or the fabrication of the fins, and that it did not have anything to do with the fitting of the hydraulic ram, or the construction of the ram compartment, because the fitting of the ram occurred after the construction of the keel. The Crown suggested to the jury that one reason for cutting the keel was that the keel was bent or distorted in its shape by the effect of the welding which had taken place to attach the port side to the starboard side and/or to fit the various ribs or gussets comprising the internal structure. Alternatively, it was suggested the cutting of the keel was associated with shaping the fins. It was said that any distortions in the shape of the keel through its construction would not have been removed by the means claimed by the accused to have been used to give effect to the aerofoil shape, such as heating along the line of the keel approximate to where the horizontal cut was placed and the use of a device called a “porta power (sic)”. The prosecution’s contention in the closing address in this respect was different from its contention in its opening address that the cutting of the keel was related to the fitting of the hydraulic ram. This significant change in its case as to the reasons for the accused to cut its keel reflected, in my mind at the time, the disarray of the prosecution case on this issue of ‘motive’ or ‘reason’ to do the horizontal cuts given the evidence at trial which could reasonably have been anticipated by it. Evidence was available at trial from the applicant by production of invoices and delivery documents that the ram was ordered in August 2000 and delivered in September 2000, while the keel was still being constructed. Inadequacies in the size or shape of the ram compartment could have been identified weeks or even months before the applicant completed construction of the keel, while the keel was in the applicant’s work area.

26 One reasonable view is that the prosecution changed its ‘theory’ for the applicant’s conduct because it did not suit the way the evidence had unfolded. It reasonably ought to have been anticipated that the applicant was not concerned with fitting the ram into the ram compartment. In fact it appears the evidence available to the prosecution never suggested that the applicant had anything to do with fitting the ram. Further, the evidence at trial, at least, established and that the cutting and welding could have been done within the applicant’s work area and disguised without the applicant knowing it had occurred. The cutting and welding could be done in a day’s work or possibly slightly longer. Mr Presland obviously was not at the work site all the time, many other employees had access to the factory area and polishing of the steel obliterated the horizontal cuts and welding.

27 It was also part of the Crown’s argument in closing and on this application that the accused had “changed his position” in his evidence at trial, from the account he gave when interviewed by police on or about 28 and 31 January 2003 in a couple of respects. The accused suggested to the investigating police then that no horizontal cuts could or were made before he finished his work on the keel. Further, he could not recall any cuts made by him in the area of the horizontal cuts to the fin. As to this latter aspect he recalled the heating process in general terms. He did not remember cutting the skins. Not only in the accused’s evidence at trial, but also beforehand during the prosecution case in cross-examination of particular Crown witnesses on the topic, such as Mr Harris and the metallurgist Mr Gray, it was suggested that minor nicks at the edges of the keel, at the forward and aft ends, were done by the applicant to deal with “creasing” which had occurred when the surface of the skins had been heated and pushed down to give effect to the rolled or curved shape of the keel profile. These matters were raised with Mr Gray on 2 March 2009, very early in the prosecution case, well before the applicant gave evidence. Related to this assertion was the accused’s account of heating the skins horizontally, forward to aft, to aid the bending process when applying ‘G’ clamps and the polishing or cleaning up that followed to remove the mark or line caused by the heating. Mr Harris’s recollection of events at trial supported the accused’s version of events, and the sequence of events, in which Mr Presland and Mr Harris were involved together in the construction of the keel, primarily between stages one and seven of the schematic drawings made by Mr Presland (Exhibit 1). The creasing effect at the edges requiring nicks to be made at the edges to clean up and smooth out those areas. Mr Gray and Associate Professor Yeomans, acknowledged the potential for creasing at the outer edge of the skins and the use of nicks, ‘dressing’ (or bashing down) them and welds on the area of the nicks to smooth them out. These creases and “nicks” could have been obliterated by the horizontal cut of the keel.

28 This purported “change” in the account given by Mr Presland was not a dramatic shift in his recollection. The circumstances of it are rationally and reasonably explained given the limited opportunity Mr Presland may have had to reflect upon the technical aspects of the construction of the keel at the time of the police interview in the absence of any real detail provided to him of the opinions available to the police from Mr Gray, or others, or the absence t the investigation at that time of the opinions of Mr Gray. The detail of what he was able to tell the police, in the absence of access to detailed information available to the police or available at trial, of what he did in the construction was neither surprising nor unusual in the circumstances. Such detail as he gave the police must be seen in the context of his adamant denial that he had not cut the keel or welded it back together as was suggested. Mr Gray was still preparing reports during the inquest in 2005. Certainly based on the questions asked of the applicant in January 2003, the full technical picture interpreting the sequence of the construction of the keel was not available, nor were all relevant findings disclosed to the applicant. Most importantly, these nicks, dressing down and welding were minor matters, every day occurrences for boilermakers. The applicant was being questioned about a major attach upon the integrity of the strength of the steel. This was not reasonably to be regarded as a deliberate change in his recollection.

29 The other “change” suggested by the respondent particularly in its written submissions on this application was a concession by the applicant in evidence, not previously made when interviewed 6 years before that the cut and weld occurred before the attachment by him of the leading edge tube. This concession was merely a concession with an awareness of all the relevant information. As he claimed he had no knowledge of the cut and weld to the keel and as it could have been ‘concealed’ from him, or not apparent given other work done by the applicant such as polishing the heat line, it did not matter whether the applicant made the concession, or not, for him to be acquitted. Proving that the horizontal cut happened during the fabrication of the keel did not exclude the reasonable possibility that someone else did it. He denied at all times making the horizontal cuts and welds and the evidence which the prosecution could reasonably have anticipated demonstrated that he had good reason not to notice it whilst he continued his work.

30 Although the Crown sought to suggest to the jury that Mr Presland had ‘suspiciously’ changed his account, this was not the only interpretation a fact finder might make of Mr Presland’s evidence. The jury would have appeared to have rejected this argument, but that is neither here or there. His assertion that in this particular case his memory had improved as more and more information was provided to him was entirely understandable, given the fact that the construction of the keel that took place over many weeks and the evidence revealed that it was a pick up, put down job where Mr Presland was as foreman responsible for supervising many other works or projects within the factory. The cutting and welding of the keel could have been done with a days work. The overwhelming weight of evidence was that the horizontal cuts and the welding, once polished up, would not have attracted any suspicion to Mr Presland or anybody else continuing to work on the construction of the keel, as would the replacement of the original cover plate constructed by Mr Presland. The facts were clear from the evidence at trial, within the prosecution’s own case, that when the keel finally left Mr Presland’s workshop once he had completed his tasks, including attaching the leading tube, if he had not undertaken the horizontal weld and welding and had not been told about it, he might reasonably have not been any the wiser that it had occurred. His and Mr Harris’ evidence of use of heat to bend the keel skins and polishing the markings, irrespective of whether the surface of the keel would be covered by other material, was supported as a reasonably correct step in the process of fabrication by Mr Gray for the prosecution.

31 As there was a reasonable explanation for him being unaware that the horizontal cut and welding had occurred in the context of his consistent denials, other matters which have been adverted to in the applicant’s submissions taken into account as well, lead to a conclusion that his acquittal was inevitable. This did not turn upon ‘word against word’. This other evidence underscored what was clear from the totality of the expert evidence and the maintained denials of wrongdoing by the accused and strengthened an inference or conclusion inconsistent with guilt. Some of these matters have been referred to before in different contexts. They included:

(i) Unchallenged evidence that the welding that Mr Presland admitted to, or was otherwise proven to be his, was of a far superior quality to that of the person who welded the horizontal cuts to the keel. The evidence from the main experts, particularly Mr Gray and Associate Professor Yeomans, was to the effect that it was inferior welding which ordinarily one would not expect from a person of Mr Presland’s skill. Mr Gray agreed that welds admitted by Mr Presland on the original cover plate were possibly not made by the same person(s) who did the poor welds on the second cover plate which remained when the yacht was inspected after capsize.

(ii) Given the time taken for the construction of the keel to occur, the workforce and the layout of the factory, there was ample opportunity for other persons or another person, to horizontally cut the keel and weld it back together in the absence of Mr Presland.

(iii) There was evidence that there were a large number of people who could weld but of whom most, not necessarily coincidentally, were of a less skilful standard than that consistently displayed by Mr Presland during his employment.

(iv) There was evidence that Mr Presland himself knew that to horizontally cut and weld the skins of the keel would cause a weakness to its structural integrity and that he would not do that, either of his own motion and/or without consulting someone superior to him such as Mr Cittadini.

(v) He had no reason to horizontally cut and weld the keel skins back together.

32 As the evidence in the joint trial unfolded, it is open to finding that the Crown failed to prove beyond reasonable doubt that Mr Cittadini himself was aware of the horizontal cut and welding, or that the Crown had not proven that he directed it, or approved it. In fact the evidence pointed the other way.

33 For the purposes of the ultimate conclusion as to whether I should order the issue of a certificate under the Act, I am setting aside two matters, one at least raised by the applicant as militating in favour of the grant of a certificate. Firstly, Mr Presland was a very impressive witness who was unshaken by the Crown. This matter goes to credibility, properly a matter for the jury. Secondly, the accused was a man with no prior criminal convictions who produced positive evidence of good character in addition to meticulous workmanship throughout the Crown case. His letter of resignation, tendered in evidence at trial, in its terms and effect was powerful evidence of his protestations of innocence to a person who, on one view of how the prosecution ran its case, was concerned to suppress the truth. It was clearly prepared without regard for any future litigation. The prosecution opposed its tender for reasons that were not clear. This evidence was relevant to the issue of credibility of the accused’s denials and the likelihood of guilt. The evidence of general good character, as opposed to workmanship and professional responsibility relevant to facts in issue, I need not consider.

34 Reference was made by the respondent to the decision of the Court of Criminal Appeal in Manley v Regina [2000] NSWCCA 196, to which I referred when I summarised the prosecution’s submissions. It should be noted that Wood CJ at CL, as part of the majority and approving the observations of Simpson J, rejected a contention put by the prosecution in that appeal that,

“In determining whether it was or was not reasonable for the DPP to institute the proceedings, it was proper to take into account matters of public policy such as the necessity to ensure that justice is seen to be done in serious cases of criminality etc”.

35 He was of the view that

“such considerations are irrelevant to the evaluation, by the hypothetical prosecutor, of the evidence, the knowledge of which is imputed to the prosecution.” [17]

36 He noted that the independence of the Director’s office is not threatened by a construction of the provision which directs attention to the evidence of the relevant facts in an individual case.

37 He said:

“It would be unacceptable to impose some qualification upon the section designed to encourage prosecutions in order to satisfy some ill defined community interest in bring a particular accused, or kind of matter before the courts. Indeed, to do so may only serve to threaten the independence of the DPP” [18].

38 Here the Crown suggested that not to prosecute Mr Presland would have caused “disquiet in the community”. Given the Allerton test of what material the prosecution must consider there would be no reasonable basis for such claimed disquiet in the minds of a fully informed “community”. Neither the prosecution or the Courts should pander to the whims of the ill informed or those who have no interest in justice being seen to be done.

39 Of course Manley was a case where an accused was found guilty by a jury, but acquitted by a Court of Criminal Appeal on the same evidence, because the verdict was plainly “unjust and unreasonable”. Sully J (in minority) approved what Blanch J had held in McFarlane (12 August 1995 (unreported)) that it may be unreasonable to have prosecuted the accused because the evidence favouring him was “overwhelmingly strong”. The majority agreed with Blanch J that in such circumstances “it would be open to find that it had been unreasonable to prosecute”, noting however that the Court did not suggest that a certificate will be granted to a successful accused only where the evidence favouring him is “overwhelmingly strong” [42]. Simpson J likewise did not believe that the need for “justice to be seen to be done” was a relevant consideration, or one of any weight.

40 In analysing the Crown case in Manley, Simpson J was of the view that the conflicts in the testimony amongst the expert witnesses that the Crown itself had called, led to a conclusion that no verdict of guilty was reasonable and that, also, taking into account evidence available to the defence, it would not have been reasonable to institute the proceedings [77]. Although Manley is a very different case from this case for determining whether a certificate ought be issued, the conclusion must ultimately be the same in this matter, as in that case. The submission of the prosecution about supposed “community disquiet” by not prosecuting can also be seen to be rejected by the observations of Simpson J in Johnston, earlier quoted.

41 Looking at the matter from the perspective of the prosecutor’s submissions concerning cases of competing inferences available from the evidence, the fact that there were reasonable competing inferences as to whether the accused was guilty required some judgment by the prosecution as to whether it was “reasonable to institute the proceedings” as that expression is understood in the authorities. It was not “reasonable” that the matter could be just “left for the jury”, particularly where, as a matter of logic, left with a reasonable hypothesis of innocence the jury would, if acting on instruction, inevitably acquit. There will be cases where there is “contradictory evidence and where it is reasonable to expect the prosecutor to make some evaluation of the evidence”. This was such a case.

42 The course of the trial from the applicant’s perspective and approach was largely plotted in Mr Gray SC’s opening address on behalf of the applicant immediately after the prosecutors opening. Having correctly characterised, in essence, what the Crown case was in relation to Mr Presland (see transcript p118 l.20 ff), he then set out in summary what he anticipated would emerge from the evidence (in the prosecution’s case as it turned out) identifying 8 points or issues (see p 118 l.35 – p1201.9) relevant to how the supposed logic of the Crown case fell down. That the matters Senior Counsel anticipated at the beginning of the trial unfolded (putting aside other technical or expert evidence in the trial that was capable of militating in favour of acquittal) underscores what might reasonably have been anticipated by he prosecution to put findings of guilt against Mr Presland beyond reach.

43 One other aspect of the respondent’s submissions given on 22 May was the contention that no evidence emerged at the trial as to who did cut and weld the keel. It is reasonable for the prosecution to assume that the accused bears no onus, he is presumed to be innocent. The accused had maintained that he was innocent and did not know how the cut occurred. He could not know on that version who did it. It is not to point in this matter that the evidence did not identify another person who did the cut and the welding. This proceeding was a criminal trial, not an inquisition. If there was such evidence that would be an additional reason for the applicant to the acquitted. But is not decisive or even persuasive in the circumstances of this application.

44 In the context of the state of the matter after Mr Presland was interviewed by police in 2003, given his admission that he constructed the keel, there may have been a basis for a “reasonable suspicion” justifying his prosecution on the basis of his admissions and in conjunction with other evidence. There may have been even a belief by individuals considering the matter that there was a “reasonable prospect of conviction” with that admission and other evidence relating to the cause of the capsize. However, despite the matters relied upon for that possible reasonable suspicion, the prosecutor would have had to also consider Mr Presland’s straightforward denials and the other aspects of the matter inconsistent with guilt that might reasonably have been anticipated, as exemplified by the opening address of Senior Counsel for the applicant. As the matter advanced during trial with evidence of Mr Presland’s skills and responsibilities, the operation of the factory, the process of manufacture, the relevant date of delivery of the hydraulic ram to the construction of the keel and other matters, the reasonableness of the institution of the prosecution of Mr Presland receded.

45 I am mindful of course that an application for a verdict by direction was refused at the end of the prosecution case. Here, as the judgment I gave on this application makes clear (R v Presland [2009] NSWDC 71) I was compelled by higher authority not to direct an acquittal. Of course, a prima facie case established, does not mean that it is reasonable to launch a prosecution, as the authorities make clear. An application for a “Prasad” direction to the jury was not sought. It may be said that at the end of the Crown case it was not practical for it to be given, without a “mini summing up” which the authorities on such matters do not encourage. A “Prasad” direction also denies the prosecution an opportunity to put its case in summary to the jury. Here, of course, another complication may have been that if a “Prasad” direction was given in respect of Mr Presland, there would have been inevitable unfairness to Mr Cittadini for whom, in any event, this joint trial did not kindly treat, given the fact that Mr Presland raised his good character and Mr Cittadini (who as it turned out had no prior criminal convictions) did not, Mr Presland gave evidence and Mr Cittadini did not.

Conclusion

46 For the reasons above I have come to the conclusion that it would not have been reasonable to institute the proceedings against the applicant because, had all the relevant facts been available to the prosecution, they pointed away from Mr Presland as the person responsible for the horizontal cut and the welding, or, at least, contradicted that conclusion and left his acquittal as inevitable.

47 Further, having formed the opinion that it would not have been reasonable to institute the proceedings and noting no act or omission of the applicant contributed or might have contributed to the institution or continuation of the proceedings I have also concluded that, taking into account all that has been put by the respondent and the applicant, I should not exercise the residual discretion of the Court not to issue a certificate. No good reason for that has been identified.

Order

48 As I am of the opinions required pursuant to s.3(1) (a) and (b) of the Act it is appropriate for the Court to exercise its discretion pursuant to s.2 of the Act to order a certificate to the applicant, the Court orders the issue of a certificate to the applicant, Adrian John Presland.

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