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…