R v Borkowski

Case [2009] NSWCCA 302


New South Wales
Court of Criminal Appeal

CITATION: Cittadini v R R v Cittadini [2009] NSWCCA 302
HEARING DATE(S): 30 September 2009
 
JUDGMENT DATE: 

18 December 2009
JUDGMENT OF: 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
LEGISLATION CITED: Jury Act 1977
CATEGORY: Principal judgment
CASES CITED: Andrews v DPP [1937] 2 All ER 552
Arul Thil Akan v R 2003) HCA 74; (2003) 203 ALR 259
Campbell v The Queen (1981) WAR 286; (1980) 2 A Crim R 157
Causevic v R (2008) NSWCCA 238
Cornwell v R [2007] HCA 12; (2007) 234 ALR 51
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Fermanis v State of Western Australia [2007] WASCA 84
Fernando v R [2008] NSWCCA 97
Gordon v Ross [2006] NSWCA 157
KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
Knight v The Queen (1992) 175 CLR 495
M v R (1994) 181 CLR 487
March v Strathmore (E & MH Pty Ltd) (1991) HCA 12; 1991 171 CLR 506
MFA v R (2002) 213 CLR 606
R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8
R v Cramp [1999] NSWCCA 324 (1999) 110 A Crim R 198
R v Dally (2000) 115 A Crim R 582
R v Hillier [2007] HCA 13; 233 ALR 634
R v Klamo [2008] VSCA 75
R v Lavender (2005) 222 CLR 67
R v Nicholls (1874) 13 Cox CC 75
R v Roulston (1976) 2 NZLR 644
R v Serratore (1999) 48 NSWLR 101
R v Spathis & Patsalis (2001) NSWCCA 476
R v Stone & Dobinson; R v Cowan [1955] VLR 18
R v TakTak (1988) 14 NSWLR 226
Royall v R (1991) HCA 27; (1991) 172 CLR 378
Walsh v R [2002] VSCA 98; (2002) 131 A Crim R 299
PARTIES: Alexander Cittadini (Appellant )
The Crown
FILE NUMBER(S): CCA 2008/1008012; 2008/1008013
COUNSEL: 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 COURT JUDICIAL OFFICER: Norrish DCJ
LOWER COURT DATE OF DECISION: 10 July 2009




                          2008/1008012
                          2008/1008013

                          McCLELLAN CJ at CL

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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.

Orders

Orders of the court

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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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