R v Alexander CITTADINI

[2009] NSWDC 70

CITATION:	R v Alexander CITTADINI [2009] NSWDC 70
HEARING DATE(S):	12/03/09
JUDGMENT DATE:	17 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Application to exclude evidence upheld.
CATCHWORDS:	Criminal Law - admissibility of evidence - relevance - unfair prejudice - probative value - discretionary exclusion
LEGISLATION CITED:	s55, s137 Evidence Act 1995
CASES CITED:	R v Cittadini [2008] NSWCCA 256 R v Ibrahim [2001] NSWCCA 72 R v Abdul-Razzak, Razzak & Razzak [2006] NSWCCA 195 R v GAC [2007] NSWCCA 315 R v BD (1997) 94 A Crim R 131 R v GK (2001) 53 NSWLR 317 R v Sing-Bal (1997) 92 A Crim R 397 R v Yates [2002] NSWCCA 520 R v Haouni [2005] NSWCCA 209 R v Swaffield & Anor (1995) 192 CLR 159
PARTIES:	Regina Alexander Cittadini
FILE NUMBER(S):	2008/00001008
COUNSEL:	Mr Barrett - Crown Mr S Odgers SC - Offender Mr Priestley - Offender
SOLICITORS:	Solicitor, Office of Public Prosecutions Mitchell Lawyers

JUDGMENT

Introduction

1 On 16 September 2002 the yacht ‘Excalibur’ sank approximately 20 miles off Seal Rocks, just north of Port Stephens, and four of the crew died. Alex Cittadini and Adrian Presland are currently on trial in respect of four counts of manslaughter arising from these deaths. The cause of the capsize was the shearing away of the bottom “half” of the keel fin (with the lead bulb attached) along a horizontal line where the starboard and port sides, or “skins”, of the fin had been cut and then welded back together. The evidence in the trial is that the two sheets of stainless steel that comprised the ‘skins’ of the keel fin were not designed to be cut and that such cutting and welding was a fundamental defect in the construction of the yacht.

2 The prosecution sought to lead evidence only in relation to the trial of Alexander Cittadini,

(i) of the presence of, and relevant opinions about, alleged deficient welding in the hull as a consequence of investigation of employees from Australian NDT Services Pty Ltd in 2006, and

(ii) from Alan Saunders (the owner of the yacht) and two Hamilton Island tradesmen, Brian Chandler and Craig Berg, who undertook the relevant repairs regarding particular deficiencies in the welding of what might generically be called the “rudder post” housing less than a month before the yacht capsized and

(iii) from Mr Saunders concerning the positioning of staunchions for a safety rail which did not comply with “Blue Book” requirements, on examination of the yacht in Sydney in mid 2002. The yacht was built between mid 2000 and early 2002 and was sailing in open water by at least May 2002.

3 The evidence is said to be relevant to proof of the alternative basis of the allegation of manslaughter against Mr Cittadini, that is, gross negligence by omission of the accused. It has no relevance to the prosecution case against Mr Presland. Objection is taken to the admissibility of the evidence by the accused, on the basis that the evidence subject of objection is either that it;

(i) is not relevant (s55 Evidence Act 1995 – “the Act”), or

(ii) or ought be excluded pursuant to s 137 or s 135 of the Act.

4 I earlier ruled that the evidence outlined in 2(i) and (iii) ought be excluded, but that outlined in 2(ii) ought be included. These are the reasons for those decisions.

Background to the Application

5 The evidence now the subject of objection, refined and narrowed in the course of a “voir dire/Basha” enquiry and as the trial has unfolded, was the subject of objection when a trial before his Honour Judge Sorby was to commence in October 2008. His Honour excluded some of the evidence, then the subject of objection, on the basis that it was “tendency evidence” and did not have “significant probative value”, such as to satisfy admission pursuant to s 97 of the Act.

6 The learned Director appealed his Honour’s ruling and in R v Cittadini [2008] NSWCCA 256, the Court of Criminal Appeal held by majority that the evidence was not “tendency evidence” and was thus not inadmissible by reason of the application of s 97. The Court held that the evidence might be relevant as “circumstantial evidence” of a lack of adequate, or any, supervision or quality control, in the construction process that led to a delivery of a defective yacht. The Court observed that adequate supervision or “quality control” would have detected the defect in the keel which caused the yacht to capsize (causing the deaths of the four deceased) and thus it would have been repaired or dealt with before delivery.

7 As the majority of the Court summarised the alternative Crown case against Mr Cittadini, the Crown puts its case for criminal negligence amounting to manslaughter on the basis that the accused failed to implement a system of adequate supervision and quality control in the construction of the yacht. The Crown seeks to show by identification of certain defects that the supervisory and/or quality control process was inadequate and that as a consequence of that inadequacy the boat was delivered with a defective keel.

8 At [29] Simpson J, for the majority, summarised the position as follows:

(i) Mr Cittadini was director and manager of the company and under a duty to implement a system of the construction of the yacht that incorporated adequate and proper supervision and quality control,

(ii) he failed to implement such a system,

(iii) that failure (or breach of duty) resulted in the delivery of a yacht with a defective keel,

(iv) the defective keel was the cause of the deaths.

9 Her Honour identified the evidence excluded by Sorby DCJ as going to the second matter “the alleged failure to implement an adequate system”, which caused the delivery of a yacht with a defective keel. Her Honour categorised the evidence sought to be admitted as “circumstantial evidence” from which the jury would be required to “draw inferences”, that the system was “inadequate and negligent” [30]-[31]. She said the evidence goes to “the correct characterisation of the system”. She noted that none of the instances of defective workmanship of itself would prove the system was inadequate or negligent, in combination it might. Her Honour pointed out that the asserted breach of duty was in “the implementation of the system of work”. She noted that the issue of the necessary causal connection between the alleged breach and the cause of death was a question for the jury, not the Court. She also observed it was inappropriate for the Court to determine that the evidence is admissible for “non tendency” purposes as there may be reasons that the evidence is “inadmissible” and the Court had not seen the evidence in a form in which it would be tendered.

10 The issue of admissibility now argued was one which could not be resolved at the commencement of the trial and had to be considered at such time as the relevant evidence in relation to the circumstances of the construction of the yacht was available such as to put the objected evidence in proper context and to understand what was relevant to determining what a reasonable person in the position of the accused would do. (Some of the evidence was not in “statement” form, hence a “Basha” inquiry.) Her Honour pointed out in her judgment that the correct analysis of the Crown case was that it was not part of the Crown’s case, on the alternative basis, that Mr Cittadini knew or even ought to have known of the defective keel. That is relevant to the first basis upon which it presents its case (Cittadini [25]). The ‘non tendency’ purpose of the evidence was that the inadequacy of the “system” was the cause of the delivery of the yacht, with a negligently constructed keel (Cittadini [26]). The Crown would seek to show the supervisory process was inadequate and negligent by showing an accumulation of defects. The negligence in supervision allowed a yacht with a defective keel to be delivered (Cittadini [27]).

The Relevant Legislative and other Principles

11 In proof of guilt of manslaughter by criminal negligence through omission, apart from having to prove relevant duty of care to the deceased persons relevant to the particular charges by reason of the alleged omission(s) by the accused, he was in breach of a duty of care owed to a particular deceased and that the omission caused the death of a particular deceased, the prosecution must prove that such omission merited criminal punishment because:

(i) it fell so far short of the standard of care that a reasonable person would have exercised in the circumstances and

(ii) it involved such a high risk that death or really serious bodily harm would follow and

(iii) the degree of negligence involved in the omission(s) is so serious that it should be treated as criminal conduct.

12 S 55 of the Act provides as to the meaning of “relevant evidence” that:

“(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

No issue adverse to admissibility arises under s 55(2) of the Act.

13 S 137 of the Act provides:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

“Probative value” is defined in the Act to mean, “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” .

14 The “danger of unfair prejudice” has been discussed in a number of authorities such as R v BD (1997) 94 A Crim R 131 (at 139, 151), R v GK (2001) 53 NSWLR 317 (at [30] per Mason P), R v Sing-Bal (1997) 92 A Crim R 397 (at 403), R v Yates [2002] NSWCCA (at [252]), R v Haoui [2005] NSWCCA 209, and in a common law context R v Swaffield & Anor (1995) 192 CLR 159 (at 192).

15 The relevant ‘fact in issue’ is, whether the accused failed to establish systems of construction that, if they had been adopted, would have prevented the yacht being delivered with a defective keel.

The Evidence the Subject of Objection - Hull Welding

16 The evidence the prosecution seeks to lead in relation to the welding of the hull was given on the voir dire by Travis Tuck, a technician for Australian NDT Services Pty Ltd and his “employer”, Ross McNeill the General Manager of that company. It is concerned with non-destructive testing of metal products and objects; including welding, amongst other tasks. The basis of their oral evidence is to be found in the report prepared by Mr Tuck from his examination of the hull of Excalibur conducted on 15 September 2006 (Exhibit 4 on the voir dire) the admissibility of which as a document has not been discussed but which I assume for the purposes of this judgment. He conducted a visual examination of the hull, conducted testing by “eddy current” (an “oscilloscope type” instrument), which he said was concerned with the keel area (although his report says otherwise) and separate radiographic testing of twelve random areas by 22 x-ray images.

17 The location of radiograph testing was assisted by Mr Saunders who was concerned to determine whether the hull was in condition to be used again. The examination occurred at a property on the Mornington Peninsular four years after the capsize. Mr Tuck using a standard that he misdescribed as AWSD 1.1 (but which in fact was AWSD 1.2), which is a standard, or code, applicable in the United States for aluminium welding amongst other matters relating to aluminium. He concluded from his radiographic examination that 19 of the 22 plates revealed non-compliance with the “American Welds Standard”. No defects were found in the welding examined by ‘eddy current’ method. Mr Tuck did not observe on visual examination any cracking in welds examined by him. His visual examination was confined to the interior of the hull, as the exterior was covered by fibreglass or an epoxy resin. Mr Tuck gave evidence of examples of non-compliance (which are coded in the report) as varying between “incomplete root penetration”, “uniform porosity”, “gas porous welds” and/or “transverse cracks” in welds. These expressions are explained in the evidence on the voir dire. Mr Tuck was a technician skilled in undertaking the non-destructive testing and interpreting the results of his testing, however he was assisted in that regard by Mr McNeill, who examined the radiographic plates and made his own comments in a covering letter.

18 Summarizing Mr McNeill’s evidence, he expressed the view that the testing revealed that the welds were defective in a range of ways by reference to the ‘Standard” and said that the non compliance reflected a “lack of quality control”. He said in the absence of any standard applying in Australia in relation to the welding of aluminium, there were still procedures for welding and testing welders that could be obtained from the aluminium manufacturer, the materials supplier, or the welding supplier. The “American” standards may be downloaded from the internet for a fee, but they did not strictly apply in Australia. He said for the purposes of “quality control” that there was a wide range of inspection techniques including visual inspection, through to ultrasound and radiography. Visual inspection would reveal obvious defects. He said that the methods of inspection were provided for in the ‘Standard’. His inspection of the yacht visually revealed some corrosion or “oxidising” from immersion in salt water but not “a tremendous lot”. He could not examine the aluminium externally covered by epoxy paint or fibreglass. Internally there was some oxide showing. There was no evidence from him of visual observation of cracking in the welds he may have examined. There is no evidence of any records kept by him of any of welds he may have examined. There was some conflict in the evidence of Mr Tuck and Mr McNeill as to whether finding defects was common place under radiography. Mr Tuck said a defect was usually found but may still comply with the ‘Standard” (893). Mr McNeill said, “you normally don’t see many defects” (967).

Rudder Post Housing and Placement of Staunchions

19 The evidence relevant to the inadequate welding of the rudder housing, comes primarily from observations of Mr Saunders and from the two tradesmen working at Hamilton Island in August/September 2002, Mr Chandler and Mr Berg. The evidence from Mr Saunders is to the effect that during a race in the Hamilton Island area the rudder housing broke free. Subsequent investigation by Mr Chandler and Mr Berg revealed inadequate welding of the housing box to the hull and of a plate required to secure it. Mr Chandler and Mr Berg re-welded this area. Mr Saunders said that when the rudder housing broke his visual observation revealed deficiencies in the welding, although he admitted no expertise in that area.

20 As to the placing of the staunchions Mr Saunders gave evidence that when the yacht was submitted to Cruising Yacht Club of Australia inspection to participate in a race Southport the staunchions at the rear of the boat were “2.1 or 2.2” instead of “about 2 metres” apart as required by the ‘Blue Book’, which sets out standards for ocean racing yachts. The relevant passage of the ‘Blue Book’ in fact requires them to be 2.2 metres apart, but I accept that an official of the CYC required relevant staunchions to be closer together by .1 of a metre. This was done (with assistance from Mr Cittadini) to comply with the direction of the Yachting official.

Submissions

Defence Submissions

21 It is submitted by the accused that the Crown has particularised the alternative case of failure to implement a system of adequate supervision and quality control in the construction of the yacht by alleging that the accused was negligent in failing to do the following things:

(a) ensure that “standard” welding procedures were adopted in the construction of the yacht;

(b) ensure that welders engaged in welding the yacht do test plates; and

(c) ensure that spot checks be conducted on a regular basis in respect of the construction of the yacht

22 It is not alleged that the accused was negligent in failing to do the following things:

(a) employ more staff;

(b) employ staff with maritime experience;

(c) employ only staff with experience in yacht construction;

(d) radiograph the yacht prior to delivery;

(e) use different tools and machinery;

(f) use someone other than Mr Presland to construct the keel;

(g) employ staff with different qualifications to those who were employed.

23 It is submitted that what must be assessed for the purposes of s 55 of the Act is the extent to which, if at all, the evidence in question could rationally affect the assessment of the probability that the accused failed to establish systems of construction that would have been implemented by a reasonable person in the accused’s position and “would have prevented the yacht being delivered with a defective keel”.

24 As to the deficiencies in welding of the rudder housing and the staunchion placements it is submitted that asserted deficiencies would not have been prevented or detected (and remedied) by a system of construction that would have been implemented by a reasonable person in the accused’s position. The presence of deficiencies does not, of itself, tend to establish either of that proposition or the proposition that they would not have been prevented by any system not implemented by the accused. It is submitted that the deficiencies as to the staunchions and the rudder housing were discovered in the period after delivery during what may properly be described as “shake down sails”. These may be regarded as part of a “system” designed to detect deficiencies and then correct them, as occurred here.

25 In respect of the deficiencies identified by Australian NDT Pty Ltd staff, discovered by the use of radiography, there is no suggestion that a reasonable person in the accused’s position would have radiographed the yacht. This is conceded by the prosecution. It is submitted that there is no evidence that the deficiencies would have been prevented or detected by some other system of construction that would have been implemented by a reasonable person in the accused’s position. It is submitted that it may be concluded that the Crown has failed to adduce any evidence tending to show that the asserted deficiencies would have been prevented or detected (and remedied) by a system of construction that was not implemented by the accused and would have been implemented by a reasonable person in his position.

26 It was submitted that, assuming that the evidence of the asserted deficiencies does tend to establish that they would have been prevented, or detected (and remedied), by a system of construction that was not implemented by the accused and would have been implemented by a reasonable person in his position, the Crown must show a logical process of reasoning by which it may be concluded that the failure to implement that system caused the yacht to be delivered with a defective keel. In assessing that issue this Court should note that while the other alleged defects related to a planned part of the yacht, the cutting (and welding back together) of the keel was a completely “unprogrammed event”. It was not part of the design of the keel and was a gross variation from the specified design of the keel. On the assumption that the accused was not informed of the cutting and welding back together of the keel (the assumption made for the purposes of the Crown’s alternative case: Simpson J at [27]), the person or persons who cut the keel and welded it back together must have decided to keep such a major departure from the construction plan secret from the accused. In such circumstances, the welding back together of the keel may well occur without adoption of proper methods for welding and without the application of standard monitoring procedures. The strength of an inference from inadequate processes of supervision or quality control in respect of programmed steps in the construction of a yacht must be very limited where the particular defect in question was not programmed and takes place in secret. It is submitted that standard quality control methods that might work for programmed work may well be completely ineffective for “unprogrammed” and “secret” work – so that failure to adopt such monitoring methods may have made no difference whatever to the outcome. It is submitted that it is difficult to see how they could have prevented the yacht being delivered with a defective keel as the prosecution presents this case. Thus, there would not be the necessary causal connection between the failure to adopt such methods and the negligent defect that caused the deaths.

27 With regard to the evidence of asserted deficiencies relating to welding it is submitted that the following points are material on the basis that Mr Presland made the relevant ‘cut’ to the keel:

(a) the person (Mr Presland) who, on the Crown case, cut the keel and welded it back together, was fully qualified to perform that work. Systems designed to ensure proper qualification of welders could not have prevented what happened,

(b) since the operation of cutting the keel and welding it back together was unprogrammed and, on the Crown alternative case, the accused was not aware of the operation (indeed, he had expressly directed that the keel was not to be cut per Derek Harris a boilermaker/welder), Mr Presland must have decided to keep such a major departure from the construction plan secret from the accused. In such circumstances, the welding back together of the keel might well occur in a rush and without adoption of proper methods. A system designed to ensure adoption of proper procedures cannot operate in such circumstances and could not have prevented what happened.

If a third party, or Mr Presland, was responsible for the cuts:

(c) it should be noted that the operation could have been conducted in less than 6 hours, and there was nothing suspicious about the keel after the operation had concluded, any system of monitoring that might be adopted (short of radiography of the yacht) was most unlikely to detect what had happened.

28 The accused submits that it is extremely difficult to see how any processes that would have been adopted by a reasonable person in the accused’s position to prevent other deficiencies could have prevented or detected the deficiencies in respect of the cutting (and welding) of the keel. No evidence has been adduced to support the existence of such a causal link. The accused’s counsel asked rhetorically: how (for example) might a system of construction that would have ensured that stanchions on the yacht complied with AYF regulations have prevented or detected the cutting of the keel?

29 As to the objection pursuant to s 137 Evidence Act 1995, it is submitted that the evidence has very low probative value in respect of the use to which it may be put, in the context of other matters raised as relevant. It is submitted also as to “the danger of unfair prejudice” that while sometimes it may be assumed that a jury will follow judicial directions, that is certainly not always the case (see, for example, R v Ibrahim [2001] NSWCCA 72 at [33]; R v Abdul-Razzak, Razzak & Razzak [2006] NSWCCA 195; R v GAC [2007] NSWCCA 315, at [87]). Based on that last judgment (through Giles JA) it is submitted that while the fundamental assumption of a criminal trial is that the jury acts on the evidence and in accordance with the directions of the trial judge are well known, “prejudicial effect, however, is to be evaluated without such a foreclosing assumption”. In this case, there is a real the danger that the jury may conclude that the accused is a “sloppy boat builder” and, as a result, the evidence may be misused to ‘sheet home’ blame so to speak unfairly or improperly.

Crown Submissions

30 In general terms in relation to the objection taken as to the relevance of the evidence the Crown said its case was “there were no systems of supervision in place and no systems of quality control in place”. The Crown submits that laying down of weld procedures, testing welder qualification, the use of standards available for welding, regular programmed and unprogrammed visual inspections, requirement of reporting provisions, supervision, adequate instruction to tradespersons, inspections of the product of each stage of the construction were matters that would have provided a system to prevent the delivery of a defective keel.

31 The probative effect of any evidence of this type, bearing in mind it was circumstantial evidence, required consideration of all the circumstances taken as a whole. Although it is submitted that each of the circumstances sought to be adduced had “significant probative value”.

32 Generally, on matters relating to s 137 Evidence Act, the Crown submitted that the evidence sought to be adduced has probative value and no unfair prejudice had been demonstrated. The evidence could not be “misused by the jury” in that it would invoke horror or some other emotion, or any other unfair prejudice.

33 Particularly in relation to the detail of the evidence, the subject of objection, to summarise the prosecution’s position it submitted:

(a) in respect of the alleged deficient welding in the hull, the purpose of tender was to show that Mr Cittadini failed to implement any, or any adequate, processes of supervision of quality control in the construction process and this failure resulted in the supply to Mr Saunders of the defective yacht. It is not tendered to show that Mr Cittadini might have utilised radiograph testing to discover defects in the welds nor should have employed the standard used by NDT. Nor is it suggested Mr Cittadini should have employed such testing. The evidence of radiograph testing is simply evidence that discloses defects in the welds. The evidence is intended to be used as “one circumstance” in support of the case of the absence or of inadequacy of supervision or quality control that would or could have prevented delivery of the yacht in a defective condition. The evidence of the NDT investigation was available to enable the jury to draw an inference, in conjunction with other defects, that an inadequate and negligent system of supervision was in operation. Perhaps the best summary of the Crown’s position on this aspect is in the oral submissions of the learned Crown Prosecutor at p993 -994 of the transcript.

(b) As to defects in the rudder housing it is submitted that the significant defect observed by Mr Saunders and the tradesman, would have been capable of being prevented by proper supervision and quality control checks. It was on a section of the boat that was critical to sea worthiness and safety and a major mechanical component, the engineering and construction of which was the responsibility of the accused. Mere visual checking would have revealed the defects and they could have been remedied during manufacture”. It was submitted that it was not to point that it would be expected to find such a defect in a “shake down cruise”. The evidence is said to be a circumstance in support of the inference that an inadequate and negligent system of supervision and quality control was in place.

(c) In relation to the spacing of the support staunchions, essentially it was submitted that the boat was a ocean racing yacht and was meant to be available for Category 1 racing, that is open water racing, and as it was constructed for that purpose, the builder was aware of the requirements calling for the fitting of “jackstays” and “safety rails and fences” and would have known that these were preconditions for participation in yacht racing, particularly as Mr Cittadini was an experienced sailor. The requirements were readily available in the form of the ‘Blue Book’, which set out the requirements of yachts participating in different categories by the Australian Yachting Federation. The Crown conceded that the error in construction, claimed by Mr Saunders but not the subject of any other direct evidence, of approximately .1 of a metre might be regarded as “insignificant” and it would not effect the sea worthiness of the yacht, but that the requirements were so specific for obvious safety reasons and it prevented the yacht being raced as constructed. It is asserted that the spacing requirements should have formed part of the construction drawings and details and would have been easily capable of being installed correctly during manufacture and were not something that could be left to be discovered and remedied during any shake down. It is said that the “defect” is evidence of a circumstance in proof of the inadequacy of the systems of supervision and quality control in the construction of the yacht. The error could easily have been found. As with the deficiency in the welding of the rudder post housing, these matters were not those that could reasonably be expected to be ‘ironed out’ or detected in the “shake down” phase of the yacht.

Consideration

34 It is important to note from the outset that the prosecution case, in the alternative, is that the cutting of the keel and its re-welding was not known by Mr Cittadini to have occurred. If he knew that had occurred that would be relevant to prove the primary case against him (Cittadini [13] [27]). Although I propose to deal with each part of the evidence separately, I appreciate that the strength of inferences from a particular circumstance may strengthen when considered alongside other circumstance(s).

35 The evidence of the deficiencies in the welding of the rudder housing to my mind present little difficulty both in relation to the issues of relevance or in relation to potential exclusion pursuant to s 137, or alternatively s 135 Evidence Act. The existence of an obvious deficiency in welding in a vital part of the yacht which readily could be identified by visual examination is of substantial, at least, probative value, and could not be said to not be able “to rationally affect directly or indirectly the assessment of the probability of the existence of the fact in issue”, as previously identified in the submissions of Mr Odgers SC. This defect is not one that reasonably (or in the mind of the owner of the yacht) was one which could be expected to be identified in “shake down exercises”. It was one that a reasonable person in the accused’s position could have identified or would be expected to identify. The unfair prejudice is said to be the misuse of the evidence for “tendency purposes”. In my view appropriate direction minimises any risk of misuse of the evidence in that regard although may not necessarily remove it. I do not agree with the prosecution that there is no danger of unfair prejudice in the manner in which it has been identified by the accused’s counsel, notwithstanding the observations of Giles J in R v GAC at [83]-[87]. In fact, adopting the approach that his Honour recommends, I am of the view that the risk of, or danger of, unfair prejudice is outweighed by the probative value of the evidence.

36 In relation to the staunchions the Crown submitted in the course of oral submissions that the nub of the deficiency was that the placement of the staunchions (the workmanship of which is not the subject of any criticism) was “not fit for purpose” or not capable of satisfying the “purposive” test of construction. The Crown case however for “fit for purpose” must be understood in the context of the case it seeks to establish. This is not an action in “negligence” at common law. That case is one of a lack of system which otherwise would have detected, in the course of construction, or before delivery, the particular deficiency in the keel. The failure to put staunchions in at the distances required by the “Blue Book” (if indeed the evidence of Mr Saunders establishes that) does not speak of an absence of system which would lead to the delivery of a yacht with a “deficient” keel, notwithstanding consideration of other relevant “circumstances” to the issues requiring proof by the prosecution under this alternative basis for manslaughter. Building the boat with regard to the requirements of the “Blue Book”, to make the boat eligible for particular categories of competitive sailing, even as a safely issue, does not go to a system of construction that the Crown is required to establish ought to or could have existed, such that a reasonable person in the accused’s position would or could have implemented to prevent the delivery of a negligently constructed yacht, that is with a defective keel. Evidence of the placement of the staunchions contrary to the ‘Blue Book”, notwithstanding potential ‘safety considerations’, is not, in the absence of evidence of any lack of structural integrity, inherent design, engineering fault or any manufacturing weakness, is not something that rationally, directly or indirectly leads to proof of the “fact(s) in issue”, for a case of manslaughter by negligent omission, even when taken into account with other circumstances.

37 In any event, even if relevant, the matters identified above as to the workmanship of the staunchions both as to design, manufacture and installation significantly diminish the probative value of the evidence. Further, the ‘fit for purpose’ issue identified by the Crown, even if it characterises correctly the relevance of the evidence, is quite remote from both the fundamental lack of ’fitness for purpose’ of the keel such as to speak of an absence of system with any real force by itself or in combination with other matters. Here in any event one would reasonably expect that the requirements of placement of staunchions for the purpose of ocean racing, was something that would be detected in the course of ‘rating‘ the yacht before it entered its first “category” race, as opposed to sailing the boat in ‘non race’ conditions on Port Phillip Bay, or even while sailing up the coast to commence racing from Sydney. In all these circumstances I regard the probative value of this evidence as slight, perhaps even neutralised by the weight of other considerations. The evidence of Mr Saunders may be regarded as hearsay evidence. There is an ever-present risk of unfair prejudice, as identified by the accused that, notwithstanding appropriate direction and given the availability of other circumstances, outweighs the probative value of the evidence.

38 As to the evidence of investigations and opinions from Mr Tuck and Mr McNeill (“NDT” evidence), noting the character of the prosecution case for the alternative basis for manslaughter and the “fact(s) in issue” the assessment of which the evidence is claimed to directly or indirectly affect, the relevant “system” would have to be one which detected unprogrammed work, performed without the knowledge of Mr Cittadini (perhaps even contrary to instruction) and possibly over a relatively short period of time (less that 6 hours) and in secret. In these, or some of these, circumstances the failure to comply with an “American Weld Standard”, not strictly or legally applicable, in the context of the evidence of the yacht’s designer David Lyons, an alleged failure to have any or some supervision to ensure test welds, and/or inquiries of various sources as identified by Mr McNeill, does not rationally effect the assessment of the facts in issue.

39 David Lyons has given evidence that he provided the “naval architecture” for the yacht, comprising its shape and some of the construction scantlings (the dimensions of the structural components within the yacht), including designing the hull, the keel, the rudder, the mast rigging and the dimensions of the sails. He did not impose any requirements in respect to engineering or methods of construction, particular methods or standards of welding or matters relating to quality control. There was no “quality assurance” component required in the construction of the yacht. These were matters left to the discretion of ‘Applied Engineering’. There is no evidence in the trial that the owner of the yacht made or set requirements in relation to “quality assurance” matters, in accordance with any Australian or other Standards. It was not part of the agreement for the construction of the yacht. There was no requirement for independent engineering standards or testing to be undertaken. In fact the evidence is clear from Albert Cittadini and Mr Lyons that no system of “quality assurance” was required. Of course, “quality assurance” as understood by Mr Lyons and Albert Cittadini may not necessarily in any event be a yardstick for “quality control” and do not necessarily mean the same thing. Mr Lyons described the cutting of the keel as not only “a gross variation from the specified method for constructing the keel” but said that it would be “inherently dangerous”.

40 It was submitted by the prosecution that the evidence of Mr Harris and Mr Cittadini was that the accused was aware of “types of systems and quality controls” that had been employed in other projects and that Mr Cittadini “would have been aware of the existence of various standards of welding that he might have used in such systems of supervision and/or quality control”. This submission ignores the import of the evidence of Albert Cittadini as to the lack of relevance of other projects and the application of quality assurance standards of those projects to the construction of the yacht in question. A quality assurance standard, such as described in the evidence of Mr McNeill, was not required by design or agreement. It should be noted that the very central issue of this trial is concerned with a defect in the yacht that was so contrary to the design specifications of the yacht that no issue of compliance with a particular standard or “quality assurance” arises.

41 I accept the concern expressed by Mr Odgers in reply (pages 999-1000), underpinning part of the objection to this evidence on relevance, but also relevant to discretionary considerations, concerning the failure of any witness, including experts such as Mr Gray and Mr Burns, the metallurgists, to suggest that quality assurance standards were required, ought to have been sought or insisted upon, or might reasonably be expected in the welding of the yacht. Mr McNeill’s evidence, it might be said, casts little or no light upon the practical situation in the construction of the yacht, unlike the evidence of Mr Gray. Although this point of the trial is not the time for final pronouncements on the matters identified by the Crown as “particulars” of the absence of any, or adequate, systems, some earlier identified appear not supported by the evidence otherwise admissible. I am of the view ultimately that the evidence the subject of objection does not satisfy s 55 of the Act. Further, both to underline that finding, but perhaps more pertinent to the issue of assessing the probative value of the evidence, there is no evidence of any defect in the hull’s operation by reason of the welds examined by Mr Tuck, no evidence of leaking, structural failure, failure of the welds contributing to the failure of any other part of the yacht. There is no evidence that the defects in the welds identified by NDT were either “seal welds” or “structural welds”, as discussed by Mr Gray. The prosecution puts this as a matter adverse to the submissions justifying rejection of the evidence. In my view these are matters favourable to the defence objections in the context of assessing the probative value of the evidence and its relevance.

42 Although the objected evidence was not available to the prosecution, no practical attempt was made particularise these matters in the evidence of Mr Gray. Little evidence has been led from Mr McNeill about practical implications of the alleged defects during his evidence on the voir dire. In assessing the probative value of the evidence, in the context of a claim failure to undertake adequate or any ‘spot checks’, it is the case that the defects were not visibly identifiable, or revealed by ‘eddy current’ detection but only identified by radiographic examination. Even allowing for the Crown’s submissions as to the significance of the use of radiography to detect defects in the context of the objection, as opposed to being an examination technique required of the accused, the absence of observable defect and evidence of physical consequence of the defect is a matter to be taken into account in assessing the probative value of the evidence. In this context I also note the earlier cited observations of Senior Counsel for the accused as matters that diminish the probative value of the evidence.

43 The danger of unfair prejudice, in the sense of misuse of the evidence, is real and looms larger when considering that this evidence concerns a “latent defect”. The misuse of the evidence in my view would be greater, even with careful directions, than would be case of an obvious defect in welding as might be exposed in race conditions. The judgment of this aspect includes consideration of what was observed by Giles JA in GAC. Here in my view the danger identified outweighs the probative value of the evidence. Further in this matter the danger of unfair prejudice is increased because issues of the claimed failure of adequate or any system, in the welding of the hull, or relevant to that issue arising from Mr McNeill’s evidence, noting the evidence of Greg Brown an experienced builder of aluminium boats, have not been taken up, within permissible limits of examination in chief, with any relevant witness to that aspect of the construction of the yacht. In this regard I point to the evidence of Derek Harris who, according to him, welded seventy percent of the hull. Neither the “Standard” discussed by Mr McNeill, the competence of Mr Harris, or his methods of welding etc have been seriously raised with him.

44 There is procedural unfairness in my view that arises with the introduction of the evidence the subject of objection, if evidence germane to its practical relevance has not previously been addressed. For example, to recall Mr Harris would have the effect of exacerbating matters, which if relevant, are still only circumstantial, in proof of an alternative case which even allowing for this evidence would have difficulties in establishing the kind of “wicked” or “gross” negligence sufficient to prove manslaughter. Foreseeability of death or really serious bodily harm of a reasonable person in the position of the accused, one might have thought, are somewhat more present in cases of breach of duty of care by omission arising, as usually is the case in manslaughter trials, by failure to provide medical care to a person when the alleged offender has some knowledge of the deceased’s antemortem condition or his or her presentation.

**********