McClellan CJatCL at 1; Fullerton J at 128; Schmidt J at 129
DECISION:
1. Appeal upheld and the conviction quashed. 2. Direct verdicts of acquittal.
CATCHWORDS:
CRIMINAL LAW - appeal - conviction and sentence appeal - defective keel of a yacht causing the death of four people - criminal negligence manslaughter - whether the verdict of the majority of the jury was unreasonable - whether the Crown Prosecutor's final address caused a miscarriage of justice - whether the trial judge erred in respect of the directions to the jury on the "reasonable person" test - whether the trial judge erred in failing to direct the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown put its case - appeal upheld - verdicts of acquittal directed
S J Odgers SC /D Priestly (Cittadini) D Arnott SC (Crown)
SOLICITORS:
Mitchell Laywers (Cittadini) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11/0072
LOWER COURTJUDICIAL OFFICER:
Norrish DCJ
LOWER COURT DATE OF DECISION:
10 July 2009
2008/1008012 2008/1008013
McCLELLAN CJ at CL
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.
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Details
AGLC
R v Borkowski [2009] NSWCCA 302
Case
[2009] NSWCCA 302
Decision Date
CaseChat Overview and Summary
The case of R v Borkowski involved a conviction and sentence appeal by the respondent, who had been found guilty of four counts of manslaughter by criminal negligence. The deaths of four people were caused by the defective keel of a yacht which the respondent had manufactured and supplied. The legal issues before the court included whether the verdict of the majority of the jury was unreasonable, whether the Crown Prosecutor's final address caused a miscarriage of justice, whether the trial judge erred in respect of the directions to the jury on the "reasonable person" test, and whether the trial judge erred in failing to direct the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown put its case.
The court found that the trial judge had erred in not directing the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown put its case. The court also found that the majority of the jury's verdict was unreasonable because the Crown Prosecutor's final address caused a miscarriage of justice. The court further held that the trial judge erred in respect of the directions to the jury on the "reasonable person" test. The court found that the appeal should be upheld and that verdicts of acquittal should be directed.
The court's decision resulted in the acquittal of the respondent on all counts of manslaughter by criminal negligence. The court found that the trial judge's errors in directing the jury and the Crown Prosecutor's final address had caused a miscarriage of justice, and that the majority of the jury's verdict was unreasonable. The court held that the appeal should be upheld and that verdicts of acquittal should be directed. The court's decision in this case highlights the importance of ensuring that juries are properly directed and that prosecutors do not overstep the bounds of their final address.