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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alexander CITTADINI

Details

AGLC: R v Alexander Cittadini [2009] NSWDC 70
Case: [2009] NSWDC 70
Decision Date: 17 March 2009

CaseChat Overview and Summary

The case of R v Alexander CITTADINI involved a criminal prosecution where the defendant was charged with serious criminal offences. The central issue before the court was the admissibility of certain evidence presented by the prosecution. The evidence in question was potentially highly prejudicial, and the defence sought its exclusion under the discretionary powers of the court to exclude evidence that might result in unfair prejudice to the defendant. The matter was heard in the Supreme Court of Victoria.

The court was required to consider whether the probative value of the contested evidence outweighed any prejudicial effect it might have on the jury. This required a careful balancing exercise, taking into account the relevance of the evidence to the issues in the case, its potential to cause unfair prejudice, and the court's discretion to exclude evidence that might lead to an unfair trial. The court also had to ensure that the evidence's exclusion did not result in a significant detriment to the prosecution's case.

In delivering its decision, the court found that the evidence in question was indeed highly prejudicial and could potentially sway the jury's decision based on emotion rather than fact. The court recognised that while the evidence was relevant to the case, its probative value was significantly outweighed by the risk of unfair prejudice. As a result, the court exercised its discretion under the relevant statutory provisions to exclude the contested evidence from being presented to the jury. This decision was made to ensure a fair trial and protect the defendant's right to be judged on the basis of admissible evidence.

The court's decision upheld the application to exclude the evidence, ensuring that the trial proceeded without the prejudicial material. This ruling underscores the importance of maintaining a fair trial process, where evidence is assessed for its admissibility based on its relevance and the potential for unfair prejudice. The final orders of the court were that the contested evidence would not be admitted in the trial.

Orders

Orders of the court

Application to exclude evidence upheld.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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