R v Borkowski

[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
FULLERTON J
SCHMIDT J

FRIDAY, 18 DECEMBER 2009

CITTADINI, Alexander v R

R v Alexander CITTADINI

Judgment

1 McCLELLAN CJ at CL: On 16 September 2002 the ocean going yacht “Excalibur” lost its keel at sea. The boat capsized and four members of the crew were lost. There is no doubt that the keel failed because it had been cut horizontally through its entire width and then welded together during the course of its manufacture at the premises of Applied Contract Engineering Pty Ltd in Victoria (“Applied Engineering”).

2 The appellant who is the Managing Director of Applied Engineering and Mr Adrian Presland, one of his employees, who had been responsible for much of the work on the keel were charged and tried for four counts of manslaughter by criminal negligence. Mr Presland was acquitted.

3 The appellant was convicted by a majority of the jury. Pursuant to s 55F of the Jury Act 1977 the judge took a “majority verdict”, one juror not joining in the decision to convict.

4 The Crown put its case on two bases. It firstly alleged that the appellant knew that the keel had been cut and had allowed the yacht to be supplied in that condition. In the alternative the Crown alleged that the appellant had failed to implement reasonable measures for the supervision of the process of manufacturing the yacht and to provide adequate quality control at various stages in that process. The Crown case was entirely circumstantial.

5 There were considerable difficulties for the Crown in establishing the appellant’s guilt on either of the alternate bases of its case. No one admitted to having cut the keel or to knowledge that it had been cut. There were also difficulties in establishing the measures which the appellant should have had, but failed to have, in place as part of the manufacturing process in order to discharge the duty of care owed to the owner and prospective sailors of the yacht. Before considering these difficulties I will outline some factual matters relevant to the resolution of the issues in the appeal.

The appellant is engaged to manufacture “Excalibur”

6 Mr Alan Saunders, who was known to the appellant through boating activities, engaged the appellant to construct “Excalibur” on a “do and charge” basis. As a consequence there was no apparent incentive for the appellant to “cut corners” to save costs for Mr Saunders or to maximise profit for his own company.

7 Applied Engineering had been in the business of fabricating and installing metal items for the mining and heavy clay industries and the automotive industries for many years. It had made a few yachts, but was not significantly engaged in building boats. The appellant was himself a keen sailor.

8 The yacht was designed by Mr David Lyons, a marine architect. He specified that 8mm stainless steel was to be used for construction of the keel and, in particular, that each side or face of the fin of the keel was to be made from a single sheet of stainless steel to maximise the strength in the keel fin. The fin was supported by a heavy bulb at the bottom of the keel. The appellant had a part in designing a retractable ram for the keel so that it could be raised hydraulically. This was necessary as the yacht was intended to be berthed in Port Phillip Bay which would require it to be able to navigate in shallow waters.

Constructing the keel

9 Mr Presland was a foreman at the premises of Applied Engineering and was given primary responsibility for building the fin of the keel. He was an experienced and skilled welder. He gave evidence that when he commenced work on constructing the keel for “Excalibur” he was not provided with sufficient specifications. Upon request he was given a plan with detailed measurements from which the keel could be constructed. That plan cannot now be located.

10 Mr Presland was assisted from time to time by another employee, Mr Derek Harris. It was Mr Presland who carried out most of the welding, Mr Harris’ duties were confined to some minor or short term welding referred to as “tack welding”.

11 Although no other employee was tasked to participate in the construction of the fin, employees from another section of the factory were required to undertake the manufacture and insertion of the ram into the keel.

12 Stainless steel is hard and difficult to manipulate. It is not uncommon to find difficulty in bending the outer skin of the fin of a keel to the required shape. It must be bent in two directions, horizontally and vertically. Heat is sometimes applied to allow a bend to be made in the skin of the fin without compromising the strength of the keel itself. It is contrary to good practice, indeed dangerous, to cut the keel to facilitate its assembly. The cut creates a point of weakness which, given the forces on a yacht at sea, may cause the keel to fail. Tragically that is what happened in the present case. Not only was the keel cut but the weld which was intended to fuse the two parts of the keel was of poor quality, particularly on the starboard side.

13 Although the yacht had been at sea for a number of weeks, and had sailed to and raced at Hamilton Island, the keel fatigued and ultimately failed along the line of the cut, the starboard side being the first to fail. Although the lower half of the keel was not recovered the stump of the keel and the broken end of the lifting ram remained in place on the hull and were subject to examination by an expert metallurgist. He concluded that the cut in the keel gave the appearance of having been cut with an abrasive cutting disc such as an angle grinder. He also noted that the weld intended to join the two parts was not a full penetration weld and that there was no weld fusion at all in some sections. In addition, the cut was not made so as to leave a bevelled edge to ensure a secure weld, a deficiency which was contrary to good welding practice and which also compromised the strength of the weld.

14 There was no dispute at the trial that the keel had been cut horizontally and welded back together at a time when the keel was located at Mr Presland’s work station. Once completed the weld was polished so that the cut could not be detected with the naked eye. The polished fin included a horizontal band where the cut had been made, which gave it an appearance consistent with the fin having been heated at that location. The possibility that the metal had been heated to facilitate it bending would not have caused any concern to anyone who observed it.

15 Evidence was given by Assoc Prof Yeomans that “the standard fabrication method to clean up” the effect of blueing following the application of heat is to use a flexi-disc or a sanding disc to polish up the area. Mr Harris testified that he took it for granted that the area of polishing was cleaning up the “heat line” and it never occurred to him that it might have been a weld line. Mr Fred Buono, a foreman who worked on the keel after it must have been cut and before it had been painted said that he did not see a “weld line” across the keel.

16 The evidence was that during the construction of the fin the appellant realised that the box to house the ram inside the top of the keel had not been made waterproof before it was installed. To overcome this problem the appellant instructed Mr Presland to cut a rectangular shaped section on one surface running vertically from the top down the centre for about one third of the length of the fin, which enabled the ram box to be worked on. The cut section was referred to as the cover plate of the ram box. The box was then seal welded by Mr Presland so it would not leak. Mr Presland re-applied the cover plate with full penetration welds and polished the steel so that the outer surface of the keel appeared smooth. This was referred to in the evidence as the first cover plate.

17 It was common ground that the first cover plate had been cut and removed and replaced while the fin was at Mr Presland’s work station. When the remaining portion of the keel was recovered after the accident the cut in the fin did not extend through the cover plate which was found to have been made of different steel to the fin itself. This suggests that at least the original portion of the fin covering the ram box had been cut out and discarded. Whether the original cover plate was cut through at the time the fin was cut is unknown. However, because the cover plate which was present when the fin was recovered was not cut horizontally, it was accepted that the fin was cut and rewelded before the second cover plate was installed. Mr Presland denied applying the second cover plate.

Why was the keel cut and who cut it?

18 The Crown case was that it was likely that the keel was cut because the fin, when assembled, was “bending or warping or twisting or curving as a result of steps taken during its construction.” The evidence established that the two pieces of steel comprising the fin were bent by Mr Harris applying the press brakes in concentrated areas along the surface of the skin.

19 After Mr Harris delivered the pressed skins to Mr Presland heat was applied to the metal skins to enable them to be joined to the bulb of the keel. This was referred to as the bend line. It created a band 50-60 millimetres wide across the keel that was blue in colour. Mr Harris assisted Mr Presland in the process of bending the keel into shape. When the appropriate bend was achieved peaks at either end of the bend line were noticed. Nicks were made in the edges of the fin by Mr Harris to deal with this minor distortion in the shape of the fin. They were hammered down before a full penetration weld was applied. The bend line and the nicks were then polished with a disc sander. It was not suggested that this process was inappropriate or contributed to the ultimate failure of the keel. However, the appellant was not told that these nicks were made or that the fin had been bent under heat to facilitate its construction.

20 It was accepted at the trial that cutting the fin would have allowed the required aerofoil shape to have been more easily achieved.

Knowledge that the keel was cut

21 Mr Presland gave evidence in which he denied cutting or welding the fin back together or knowing that it had been cut and re-welded. It was submitted on his behalf that the jury should have a reasonable doubt as to whether he cut the keel or, alternatively, have a reasonable doubt as to whether a reasonable person in his position (with his limited experience of sailing and yachts) would have foreseen that death or really serious harm might follow from such action. Of course, it is not known how the jury reasoned to its verdict of not guilty in relation to Mr Presland.

22 It was common ground at the trial that the appellant was in charge of the construction of the yacht. He made a formal admission that he was the supervisor of the work that was carried out. When he was interviewed by the police the appellant accepted that he should have been informed of any proposal to cut the keel given that it constituted a major departure from the architect’s design. The Crown Prosecutor submitted that the appellant “obviously” did know about the cutting because it could not have been done “without reference to him.” It was assumed that the appellant should have been consulted or informed about the cutting of the keel and that he would have known it had been done, or told about it, given that the operation was noisy and time consuming. However, it was argued on his behalf that there were good reasons why the cutting of the keel may have been kept from him.

23 Cutting the keel across was a major variation to its design, which specified that the fin of the keel should be constructed of two solid pieces of stainless steel. In these circumstances, it was submitted on the appellant’s behalf that it would not be surprising if the person, or persons, who cut the keel and welded it back together decided to keep their actions a secret from the appellant. It was submitted that if Mr Presland cut the keel to assist him in performing his task of constructing the fin (as the Crown contended) he had good reason to keep this secret from the appellant.

24 Mr Presland accepted that he was aware that the keel had been cut by Mr Harris by putting the “nicks” (that is, 50mm cuts) into the leading edge and the trailing edge of the fin of the keel and that this was done without discussing the matter with the appellant or seeking his permission. He agreed that he did not subsequently tell the appellant that he had made these cuts.

25 When it became public knowledge that the keel had been cut the appellant held a meeting at the factory and asked if anyone had cut the keel. He also asked Mr Harris, who was not present at the meeting, whether he had ever cut the keel across. No one admitted to cutting the keel.

The appellant says “no”

26 Mr Harris gave evidence. Mr Harris testified that because he was having difficulty bending the plates in a press he had asked the appellant “if I could cut the keel plate”. The appellant said “No.”

27 Later in his evidence Mr Harris testified that the appellant had said to him “No, you must not do that” and told him that if he could not perform the task assigned to him without cutting the plates “it would have to be sent out” that is, sent to another factory with different equipment, to achieve the result without cutting the plates. Mr Harris said that he told Mr Presland about this conversation.

28 Mr Presland accepted that the appellant had made it absolutely clear that the two plates forming the exterior of the fin of the keel (the “skins” of the keel) were not to be cut.

The relevant arguments

29 The trial judge directed the jury that before the appellant could be convicted of manslaughter by criminal negligence four elements must be proved:

(a) The appellant had a duty of care to the deceased persons.

(b) The appellant was negligent in that, by his act(s) or omission(s), he was in breach of his duty of care (in that he did something that a reasonable person in his position would not do or he omitted to do something that a reasonable person in his position would have done).
(c) Such a breach fell so far short of the standard of care that a reasonable person in his position would have exercised and involved such a risk of death or serious bodily harm as to constitute, “gross” or “wicked” negligence and be treated as criminal conduct.
(d) The appellant’s act(s) or omission(s) caused the death of the deceased persons.

30 The appellant did not challenge the existence of the first element. The appellant had made an oral contract with Mr Saunders to construct much of the yacht including the keel. The appellant accepted that he had a duty of care in relation to the construction of the yacht, particularly the keel, that extended not only to the owner of the yacht but to anyone who was going to sail on it. However, the remaining three elements were in issue.

31 The Crown did not contend that the appellant himself cut the keel. As I have already indicated, the prosecution case was put on two bases:

(a) The appellant delivered the yacht knowing that the keel had been cut horizontally and then welded back together, or
(b) The appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control and that he failed to implement such a system and that failure caused (or resulted in) the delivery of the yacht with the defective keel.

32 The alternative Crown case relied on alleged omissions by the appellant. The Crown alleged that the appellant was guilty of criminal negligence, even if he was not aware that the keel had been cut and notwithstanding the evidence of his express orders that it should not be cut.

33 The elements of the offence on this alternative basis which were in dispute were:

(a) The appellant was negligent in that he omitted to do something that a reasonable person in his position would have done.
(b) Such a breach fell so far short of the standard of care that a reasonable person in the appellant’s position would have exercised and involved such a risk of death or serious bodily harm as to constitute “gross” or “wicked” negligence and be treated as criminal conduct; and
(c) But for such omissions the yacht would not have been delivered with a defective keel.

34 There are four grounds of appeal:

Ground 1 – The verdict of the majority of the jury was unreasonable.

Ground 2 – The Crown Prosecutor’s final address caused a miscarriage of justice.

Ground 3 – The trial judge erred in respect of the directions to the jury on the “reasonable person” test.

Ground 4 – 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 puts its case.

Ground 1
General principles

35 The principles which are engaged when a submission is made that the verdict of a jury was unreasonable are well known see M v R(1994) 181 CLR 487; MFA v R (2002) 213 CLR 606. I recently summarised them in Fernando v R [2008] NSWCCA 97. It is essential for the appeal court to make its own independent assessment of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt of an appellant’s guilt. In M at 494.6-495.1 Mason CJ, Deane, Dawson and Toohey JJ said:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.”

36 In the present case although Mr Presland gave evidence, the appellant did not. His ERISP was tendered. Apart from Mr Presland there was no challenge made by the Crown to the credibility or reliability of any witness relevant to the case against the appellant. In these circumstances there was no identifiable advantage for the jury in evaluating the evidence as against that task being undertaken by this Court.

37 The prosecution case against the appellant was entirely circumstantial. Accordingly, “if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance” Knight v The Queen (1992) 175 CLR 495 at 503; R v Hillier [2007] HCA 13; 233 ALR 634.

38 Before the jury could find the appellant guilty of manslaughter by criminal negligence they were required to be satisfied to the criminal standard of the high degree of negligence required for that charge. In R v Nicholls (1874) 13 Cox CC 75 that degree of negligence was described as “wicked negligence” being “negligence so great, that you must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not”, The degree of negligence must extend beyond a mere matter of compensation between citizens but show such disregard for the life and safety of others as to amount to a crime against the state. R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8 see also Andrews v DPP [1937] 2 All ER 552.

39 In R v TakTak (1988) 14 NSWLR 226 this Court referred with approval to what was said in R v Stone & Dobinson; R v Cowan [1955] VLR 18:

“It is clear from that passage that indifference to an obvious risk, and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness … What the prosecution have to prove is a breach of duty in such circumstances that the jury feel convinced that the defendant’s conduct could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

40 In R v Lavender (2005) 222 CLR 67 Kirby J said at [128]:

“In the overwhelming majority of cases, a person who causes death by aggravated criminal negligence will be regarded as extremely blameworthy. The criminal law, by fixing liability only on those who act with aggravated negligence confines liability to case of very serious wrongdoing in circumstances of moral blame. In Wilson (1992) 174 CLR 313 at 334 Mason CJ, Toohey, Gaudron and McHugh JJ stated that there must ‘… be a close correlation between moral culpability and legal responsibility [for manslaughter]’. Notwithstanding that manslaughter is defined by reference to an objective test, this correlation is assured by the degree of negligence required.”

41 As I have related below I am persuaded that in the present case the verdict of the majority of the jury was unreasonable and cannot be supported by the evidence. To my mind the Crown case failed to establish the appellant’s guilt beyond reasonable doubt on either of the bases.

First basis

42 The prosecution did not contend that the appellant himself cut and welded the keel. Furthermore it was not contended that the appellant must have been present when this was done. It was contended that the size of the task and the time and resources necessary to complete it, together with the associated noise, made it inconceivable that the appellant did not know it had been cut. It was submitted that no-one would have undertaken such a major operation without informing the appellant.

43 Although someone must know who cut the keel, as I have indicated, there was no evidence about that matter at the trial. There was expert evidence that the process of cutting, welding and polishing would have taken at a minimum about 6 hours. The process would have been noisy and would be likely to have required two persons and the use of lifting gear to enable the keel, which is large and heavy, to be manoeuvred and the cutting and welding completed.

44 There was evidence which established that the cutting, welding and subsequent polishing of the cut could have been completed within a period of time when the appellant was not present on the premises. He was not there for all of every day. It could also have been completed during a weekend when he may not have been present at all. The weld was of poor quality, which was consistent with it having been completed very quickly.

45 Although the evidence gave rise to a suspicion that the appellant would have been aware of the cut it otherwise lacked conviction. The prosecutor submitted to the jury that the appellant “obviously” did know about the cut because it would not have been done “without reference to him”. This was a classic “bootstraps” argument. It is obvious that the cutting should not have been done without first consulting the appellant. However, there was no evidence that the cutting would not or could not have been done without reference to him. There was evidence from Mr Presland that work was done on the keel on weekends.

46 In its written submissions on the appeal the Crown accepted that the only reasonable inference was that the fin of the keel was cut by someone concerned with the manufacture of the keel and with the ram cover plate who had access to the factory and the necessary equipment outside normal working hours.

47 Although the appellant accepted that as he was the person ultimately in charge of the construction of the yacht he should have been informed of any proposal to cut the keel, there is no evidence from which it could be inferred that he was consulted about the cut that was actually made. Indeed the evidence indicates the contrary.

48 I have already referred to the evidence that there had been a discussion between the appellant and Mr Harris about whether the keel could be cut. The evidence was that the appellant told Mr Harris that the keel must not be cut. The prosecution did not challenge that evidence. Having directed that it should not happen it is unlikely that the person who actually did the cutting would have told the appellant about it. If he had been told it would be likely that the appellant would have required the keel to be reformed, or, at the very least, have instituted thorough checks of the welded portion. There was no apparent financial cost to the appellant were he to have taken these steps. The contract was on a “do and charge” basis.

49 I have already referred to the small nicks or cuts to the fin to address minor distortions in the skins of the fin after they had been pressed. This action was taken without telling the appellant or asking his permission. As it happened these nicks were of no consequence but the fact that this occurred confirms that those fabricating the fin carried out their tasks without always consulting the appellant.

50 It is important that no one who saw the keel after it had been cut, welded and polished identified the fact that the cut had been made. Once polished the cut and welded section appeared consistent with the steel having been heated in that location to enable a bend to be created. I have referred to the relevant evidence in [15] above.

51 After it became known that the keel had been cut the appellant held a meeting at the factory and asked if anyone had cut it. I have referred to the relevant evidence at [25] above. Although perhaps not of great significance, this action by the appellant was inconsistent with any prior knowledge that the keel had been cut.

52 The ultimate submission which the Crown made both at trial and on the appeal was that because the appellant was in charge of the construction it was reasonable to infer that he must have known that the keel had been cut. Although it is entirely rational to expect that he should have been told of the work which had been done on the keel, there is absolutely no evidence that he was told that it had been cut. In his ERISP he said otherwise.

53 It is obvious that some person or persons cut the keel and one or more persons must know who that was. On the appeal the Crown submitted that the hypothesis consistent with innocence required that the unknown persons who performed the task of cutting, rewelding and attaching a second cover plate before polishing off the cut to disguise the weld marks did so undetected and that those same persons have chosen, notwithstanding the enormous tragedy which has occurred, to secrete the truth and remain silent.

54 In the course of his remarks on sentence the trial judge, as he was required to do, considered the evidence at the trial. His Honour concluded that the jury could not have convicted the appellant on the basis that he knew that the keel had been cut. In my opinion this conclusion was correct. If the appellant was convicted on this basis the conviction was unreasonable.

Second basis

55 The second basis upon which the Crown put its case was that the appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control. It was submitted that he failed to implement such a system, which failure caused, or resulted in, the delivery of the yacht with a defective keel. It was contended that the appellant was guilty of manslaughter by criminal negligence even if he was not aware that the keel had been cut.

56 The process of constructing a yacht is not a matter within the experience of the ordinary person. Evidence was required to establish the steps which the appellant should reasonably have taken to discharge his duty of care. It is necessary to consider, inter alia, the obligations, if any, arising from the appellant’s contract with Mr Saunders and any generally accepted industry practice which may have been relevant in the construction of an ocean going yacht, together with any steps which might reasonably have been taken to avoid defects in the constructed yacht. Importantly, in this case, it was also necessary to consider whether, if the steps which the Crown alleged should have been taken had been taken, the Crown established beyond reasonable doubt that, if taken, they would have prevented or detected the cutting of the keel.

57 I have already indicated that the evidence at the trial was that boat building has been an unregulated industry with no regulatory requirements and no standards of accepted practice. The level of quality assurance is a matter for contractual agreement between the construction company and the client. There were no express obligations with respect to any method of quality control arising from the contract with Mr Saunders.

58 There was no question but that the appellant employed competent and experienced tradesmen. The evidence indicated that the various foremen at the appellant’s factory had responsibility for ensuring that the tasks allocated to them were properly carried out. They were required to supervise the tradesmen within their department and, where necessary, sought the assistance of the appellant. There was evidence that was unchallenged, that from time to time the appellant checked on the progress of the yacht including the progress of the construction of the keel. If nothing else his personal interest in the project would have prompted him to pay close attention to its construction. Both Mr Harris and Mr Presland agreed that they were aware that the appellant would have expected to be informed of any proposal to cut the keel horizontally. There was evidence that the appellant’s orders were normally obeyed and that an employee who failed to do this would be “out the door.” It was expected that neither the workers nor the foremen would contravene the appellant’s instructions or depart without approval from the design of the yacht. There was nothing to suggest that this expectation was unreasonable and there was no expert evidence that the standard of supervision employed in the appellant’s premises was negligent much less criminally so.

59 As I have previously indicated, the Crown Prosecutor submitted to the jury that there was no system of quality control at all and that submission was repeated on the appeal. The jury were also told that the system of control that was said to be in place was inadequate. In his final address the prosecutor emphasised three examples of the kind of measures that could have been implemented. Firstly it was alleged that the appellant failed to pre-test welders working on the yacht. This would have required the welders to carry out a test weld which could be checked to establish that they had the necessary skill. It was secondly submitted that the appellant failed to prescribe particular weld procedures. Finally, it was submitted that he failed to put in place a system of visual examination and spot checks at each stage of construction. I have set out below a summary of the evidence relevant to these issues.

Failure to pre-test welders working on the yacht

60 The evidence tendered at the trial did not suggest that it was general practice in the yacht building industry at the relevant time for welders to do test plates to ensure they could competently weld the metals to be utilised in the manufacture of a yacht. However, as it happens, the only two employees authorised to do work on the keel (Mr Presland and Mr Harris) had successfully performed test welds on the stainless steel used to construct the keel. This occurred in 1996. The appellant’s brother Mr Albert Cittadini, the operations manager of Applied Engineering, gave evidence that once a tradesman had successfully done a test weld it would generally not be necessary to retest the person on the same material. The person with primary responsibility for working on the keel, and the only person authorised to do any extensive welding on the keel (Mr Presland) was generally recognised as an “exceptional welder” and the welding of the keel that he was responsible for was of sound quality. The Crown submitted that despite Mr Presland’s skill as a welder he had no marine experience, virtually no experience in boat building and none with the construction of a keel and was given no instructions or explanation as to the function of a keel. In circumstances where the welding that Mr Presland did perform on the keel and the construction of the keel, absent the horizontal cut, was sound the submission has little probative weight.

61 There was evidence at the trial from Mr Greg Brown, a director and owner of a boat building company, Aluminium and Steel Boats Australia, that “as a quality control before starting to do the work he had his welders do test plates which were stamped and tested by a company in Newcastle”. In his statement, admitted into evidence without objection, Mr Brown stated:

“As a quality control prior to starting a yacht my welders do test plates which are stamped, stress tested and x-rayed by CCI Pope Pty Limited in Warabrook, Newcastle. These tests indicate that the quality of welding will be of high standard which flows through to the construction of the vessel.”

However, Mr Brown did not say that, in his opinion, welders must “do test plates” prior to performing welding on a yacht, nor did he say that it was the general practice in the yacht building industry to “do test plates” at any time.

62 A metallurgist called by the Crown, Mr John Gray, gave evidence in relation to “welding standards”. He referred to Australian and New Zealand standards which applied where an engineer specified a particular type of weld and the standard applicable. He said that if such a standard was specified, the welder should be qualified to carry out the specific weld procedure “by carrying out a weld procedure test … by doing the welding on test plates”. However, he made it clear that if no welding standards were specified by an engineer, such a test plate procedure would not be required:

“[F]rom the fabricator’s point of view if there are no standards applied to them, whatever they do with respect to the welding is essentially down to what they believe is the right thing to do or their own decision making processes. So if there’s no standard applies, then there’s no – these procedures et cetera aren’t actually mandatory, they’re just good practice.”

63 The evidence at the trial did not suggest that welding standards were specified in respect of the construction of “Excalibur”. The contract with the owner, Mr Saunders, was oral and there was no evidence of any terms or conditions of that agreement dealing with welding standards.

64 The marine architect, Mr Lyons gave evidence that he “did not impose any requirements on Applied Engineering in relation to engineering or methods of construction”; “did not impose any requirements, for example, in respect of particular methods of welding” and “did not impose any requirements on Applied Engineering in respect of quality control or quality assurance relating to the construction of the yacht”. Matters of construction “were left to the discretion of Applied Engineering”.

65 Mr Albert Cittadini confirmed that neither the owner nor the marine architect had specified standards of welding that had to be adopted in respect of the construction of the yacht and, in particular, there was no requirement that the persons who worked on the keel had to have completed test welds on the material from which the keel was constructed.

66 In my opinion the submission that there was a negligent failure by the appellant to impose welding standards in the construction of the keel or the yacht by failing to pre-test welders cannot be sustained.

Failure to prescribe particular weld procedures

67 In his final address, the Crown Prosecutor stated that “[t]here were clearly no particular weld procedures laid down for construction of the keel or the hull for that matter”. The Crown contended that the appellant was negligent in failing to require that “standard welding procedures” be adopted in the construction of the yacht. I do not accept the submission.

68 The prosecutor did not isolate the particular welding procedures which it is said should have been required, with one exception. The exception related to weld preparation by bevelling or angling the sides of the material to be joined. The Crown Prosecutor pointed to the fact that this had not happened in relation to the welding where the keel was cut. There was expert evidence that such a procedure should be adopted to ensure full penetration of the weld. However, as noted above, all the welding that Mr Presland was known to have performed on the keel was of good quality and, where necessary, the required bevelling procedure was adopted.

69 Mr Albert Cittadini testified that all the welders employed in the factory were proficient in general welding standards and were expected to apply those standards. There was no evidence that, in construction of this yacht, there was a failure to adopt the bevelling procedure where necessary – except in respect of the welding along the keel where it had been cut.

70 Mr Greg Brown did not indicate any particular welding procedures that he required his welders to follow, apart from doing test plates prior to welding. Mr John Gray testified regarding “welding standards” which applied where an engineer specified a particular type of weld and the standard applicable. In such circumstances, the standards specified the welding procedure to be adopted. However, he made it clear that if no welding standards were specified by an engineer, such procedures would not be required.

71 The evidence in the trial established that no specified standards of welding had been imposed in respect of the construction of the yacht. In these circumstances, the standard to be adopted would be left to the discretion of the welder.

Failure to put in place a system of visual examination of all construction

72 In his final address, the Crown Prosecutor contended in various ways that there was a negligent failure to put in place a system of checking of work done on the yacht, referring, in particular, to visual examination at each stage of construction and “spot checks”. The submission was repeated on the appeal. In my opinion it should be rejected.

73 The Crown Prosecutor emphasised the evidence from Mr Greg Brown that “in relation to the yacht Frantic that he built he said he completed spot checks very regularly. He did that to ensure quality control of all welding on the hull…”. In his statement Mr Brown said:

“During construction of Frantic’s hull I completed spot checks very regularly. I did this to ensure quality control of all welding on the hull, and I am a very fussing [sic] person when it comes to building a yacht.”

Mr Brown did not state that such a quality control procedure must be adopted or that it was generally adopted in the yacht building industry in 2000-2001. He did not explain how often he conducted such “spot checks” or the process involved in making a check.

74 The evidence was that individual foremen in the appellant’s factory were given responsibility for ensuring that the work in their departments was done properly. There was also evidence that some spot checks were done on work in respect of the yacht. Mr Presland testified that the appellant regularly inspected the work he had done on the keel although this does not seem to have been on any systematised basis. This may have occurred twice a day on some days.

75 There was evidence from Mr Chandler, an experienced boat builder and repairer based on Hamilton Island that, when he inspected the yacht on 19 August 2002, prior to the keel being lost in September, he observed that there was evidence of poor design of the rudder housing and some of the welding of that housing was of poor quality. He said that the welds appeared to have been done by different people. Evidence was led at the trial that neither Mr Presland nor Mr Harris performed any of the welding on the rudder housing. The evidence suggested that this poor quality work would have been revealed by visual inspection. It played no part in the failure of the keel.

76 There was no suggestion that, apart from a system of spot checks, any other more rigorous inspection of the work in the course of construction was required. On the appeal it was submitted that because the keel passed through different stages of manufacture, commencing with the work performed by Mr Presland, moving then to a different work station where the ram was fitted before ultimately being painted and coated with fibre glass, an effective system of supervision would have been to check the work at each stage before it moved to the next stage. That submission lacks force in light of the evidence that after polishing the cut and weld line would not have been obvious to the naked eye. Furthermore, there was no evidence that it was general practice in the yacht building industry at the time for a system of visual inspection of each stage of construction.

77 It is possible to use x-ray procedures to verify the quality of a weld. However, it was not suggested that this was required in the present case. In any event because the cutting and welding were apparently unauthorised and the weld unknown there is nothing to suggest it would have been x-rayed, even if the technique was available.

78 There is no doubt that a more effective system to verify the quality of the work done on the yacht could have been implemented. A process described as internal test procedures (ITP) could have been adopted. There was also discussion about a formal process of quality assurance “QA”. ITP would require a systematic checking of various components as they were made by a person other than the individual responsible for it on the factory floor. There was no evidence that an ITP or QA process was used by other yacht makers and the evidence did not suggest that it was necessary to provide them to meet the appellant’s duty in the present case. Indeed as I discuss in relation to ground 3 [115] the situation was otherwise. The trial judge directed the jury that they were to ignore what had been said by the prosecutor about QA and ITPs.

Conclusion with respect to the second basis

79 The ultimate question is whether the evidence bearing upon the supervision of the manufacturing process and the adequacy of the measures for quality control supports a conclusion that the process of construction of the yacht was so deficient that the appellant was guilty of negligence that substantially contributed to the failure of the keel and that his negligence was of such a high order as to amount to criminal negligence.

80 The only available conclusion is that there was no obligation to adopt particular weld procedures (although bevelling was desirable in the appropriate circumstances) or formal methods of quality control. Although more rigorous control of the process and checking of completed work could have been undertaken, in my judgment there was no evidence which could have allowed the jury to determine that the process of constructing the yacht was so lacking in quality control that the appellant breached his duty of care to the criminal standard. To my mind the defects which were apparent in some other parts of the yacht, although suggesting poor workmanship of the items involved would not, without more, justify a finding of criminal negligence in the construction of the yacht or its keel. Although a greater level of supervision of the construction was obviously possible the evidence does not allow of a conclusion that the level of supervision was inadequate so that the appellant breached his duty much less to the criminal standard.

Causation

81 There is one other matter of ultimate significance. Before the appellant could be convicted of manslaughter by criminal negligence the jury had to be satisfied beyond reasonable doubt that the failure to provide reasonable measures for the supervision and quality control of the construction of the yacht caused the failure of the keel and the tragic loss of life. Causation in the law of negligence has proved a difficult issue: Mason CJ in March v Strathmore (E & MH Pty Ltd) (1991) HCA 12; 1991 171 CLR 506. In Royall v R (1991) HCA 27; (1991) 172 CLR 378, the High Court considered issues of causation in the criminal context. Mason CJ accepted with approval the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286 at 290; (1980) 2 A Crim R 157 at 161 that it is:

“enough if juries (are) told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.”

82 In Royall McHugh J said at [23]:

“In criminal cases the common law has also refused to apply the ‘but for’ test as a sole test of causation. Nevertheless, the ‘but for’ test is a useful tool in criminal law for determining whether causal link existed between an accused’s act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility ie legal responsibility, to that person. Causation in fact is not causation in law; see Colvin , “Causation in Criminal Law” (1989) 1 Bond Law Review 253 at pp 254-258.

83 His Honour continued:

“Causation is a question of fact: … To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person who is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of common sense, an ordinary person would not hold an accused’s act or omission to be a cause of the event of occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence.
In most criminal cases, the issue of causation is not controversial. If an accused’s act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the common sense test of causation is enough to determine whether the accused’s act or omission was sufficiently significant to make him or her ‘causally responsible’ for the event or occurrence in question (references omitted).”

(See also the discussion in Arul Thil Akan v R 2003) HCA 74; (2003) 203 ALR 259).

84 In the present case, the Crown had to establish to the criminal standard that the alleged omissions by the appellant caused the tragic loss of life by significantly contributing to the failure of the keel. To my mind this presented an insurmountable difficulty for the Crown case.

85 The evidence at trial only allowed a conclusion that the cutting and welding of the keel was a completely unplanned event. It was not part of the specified design of the keel and was a gross variation from that design. The evidence was that the appellant had given instructions that the keel was not to be cut. When it had been cut and welded it was polished so that no one by visual inspection, and it is reasonable to assume that a number of people looked at it, said that they detected the cut. The evidence at the trial allowed only a conclusion that the person who cut and welded the keel decided to keep his actions secret, at least from the appellant. The evidence was that the keel could have been cut and welded back together at a time when no one else, including the appellant, was present in the factory. Once QA and ITP’s are put to one side there can be no suggestion that a system of supervision should have been in place which could have recognised an unauthorised event of the nature of that which appears to have happened.

86 In these circumstances it was not open to the jury to conclude that failure of the keel of the yacht was caused by the negligent failure by the appellant to put in place reasonable measures for the supervision of the process of manufacturing the yacht and provide adequate quality control.

87 These conclusions are sufficient to dispose of this appeal. However, the appellant advanced further grounds of appeal which must also be considered (see Cornwell v R [2007] HCA 12; (2007) 234 ALR 51 at [105]).

Ground 2

88 The appellant submitted that the Crown Prosecutor failed to act “in fairness” or to “aid the attainment of justice” as distinct from “securing a conviction”. The submission was directed to the prosecutor’s final address where he discussed the allegation of criminal negligence by the appellant and suggested that he had a duty to “ensure” that the yacht, including the keel, was constructed “properly” and that, because it was plain that it was not so constructed, he was guilty. The appellant drew attention to the following passages in the Crown Prosecutor’s submission:

“[he was] responsible for ensuring you might think that the yacht was constructed properly”.
“[t]he responsibility of Mr Cittadini for the construction included I would be submitting to you an obligation to … have in place methods and systems of supervision and quality control that would ensure that the yacht was built properly”.
“very little if any attention was paid to ensuring quality”.
“really no steps or processes were in place to ensure that construction was done properly”.
“there were no processes in place and no procedures used to ensure that the welding was done properly”.
“you would have expected that some procedures would have been put into place to ensure that at each step of construction those carrying out the work were able to be assured that the work ws done properly, and the ultimate supervisor of it, Mr Cittadini, would have been able to be satisfied that each part of it had been built properly; that each part of it would have been by someone would have been examined, at least visually, to ensure that it met the design to ensure that whatever metalwork was done was sufficient for the purpose that it was being used, and to ensure it was the very minimum that the welds being done were adequate to meet the job for which they were being used.”
“it would be insufficient … without any steps being taken to supervise the work and to check the work as it was being done in a formal way, to ensure that the welds were being carried out properly”.
‘[t]here was nothing done to ensure, apart from occasional visits which I suppose could be described as spot checks – nothing done to ensure that the keel was constructed in accordance with the design”.
“[Mr Cittadini] did not say that there were any particular checking procedures in place for ensuring that the work was carried out properly. We do know that the work in the construction of this keel was not carried out properly. The issue is, should it have been detected. Should it have been detected by virtue of systems that had been put in place to ensure just simply quality control, that the job was being built properly and consistent with what was intended to be constructed”.
“[w]e say that there are things that could have been done that, including pre-testing the welders; including doing spot checks; including having checking procedures in place to ensure that the job was built according to what was supposed to be built, and built in a proper fashion”.
“he was responsible for having put having put systems in place to ensure quality control and systems of supervision to ensure proper construction, and failed to put those systems in place”.

89 No complaint was made about these statements at the trial and leave pursuant to rule 4 is required.

90 The appellant accepted that on occasions the prosecutor expressed the legal obligation falling upon the appellant in appropriate terms. At one point after stating that the appellant had an obligation to “ensure that the yacht was built properly” the prosecutor said:

“Mind you it’s not enough to simply say, ‘Well, we know the keel wasn’t built properly because it failed. We know it failed because it was badly built and therefore it’s Mr Cittadini’s responsibility.”

91 The appellant submitted that this statement was correct but that it did not remove the overall tendency of the prosecutor’s address, which was to effectively invite the jury to convict on the basis of absolute liability. Although the appellant does not make this complaint of the trial judge’s summing-up it was submitted that his Honour was unable to remove the risk that the prosecutor’s address caused a miscarriage of justice.

92 Other criticisms were made of the prosecutor’s address including the fact that the prosecutor referred to the concepts of “building to survey”, “internal test procedures” (“ITP”) and “quality assurance” (“QA”). As I have indicated these are standards that may be required by a client in respect of the manufacture of a metal product, which may include the x-ray of welds prior to delivery. The evidence at this trial was that such procedures had not been required under the agreement with Mr Saunders. Notwithstanding this evidence the prosecutor suggested that these procedures could have been adopted. This submission was made although, apart from not being required under the agreement, there was no evidence that a reasonable person in the position of the appellant would have adopted any of these procedures in the absence of any obligation to do so.

93 The trial judge endeavoured to confine the effect of the prosecutor’s submissions and directed the jury that they should ignore what had been said about QA and ITPs. However, the judge did note that the Crown relied on the evidence relating to “QA” and “ITPs” to establish that the appellant was “aware” of procedures that might be adopted for the construction of the yacht but were not. The appellant submitted that the effect of the prosecutor’s submissions raised a significant risk, which was not alleviated by his Honour’s directions, that the jury may have reasoned that, because the appellant was aware of additional procedures which could have been adopted which may have ensured that the yacht was delivered in a proper condition, the appellant was negligent in failing to adopt those procedures.

94 The respondent submitted that the prosecutor’s use of the word “ensure” was merely intended to indicate to the jury that no system had been implemented by the appellant to ensure quality control, not that the appellant had failed to ensure that the yacht had been properly built. It was submitted that the failure was the failure to implement the system, not the failure to ensure the result. The respondent emphasised that the prosecutor expressly disavowed the proposition that the mere presence of the defect in the keel warranted the conclusion that there had been a failure to supervise. The respondent also emphasised that the trial judge directed the jury that the prosecution case was based on an alleged failure to implement a system of proper supervision and quality control and that the appellant’s liability lay in “omitting to do something that a reasonable person in his position would have done.”

95 The respondent also emphasised that the jury were reminded by the trial judge that the issue of QA’s and ITP’s was “a waste of time” and that both matters were “not relevant to this trial.” The respondent stressed that his Honour reminded the jury that no system of ITP or QA was required by Mr Saunders or Mr Lyons and that evidence was not to be considered “in relation to a consideration of what a reasonable person in the position of the accused would have done in the particular case.”

96 This ground of appeal is significant in two respects. To my mind the overall thrust of the prosecutor’s address carried the considerable risk that the jury would have understood that they were being invited to convict the appellant on the basis of absolute liability. Even if it is accepted that the trial judge gave firm directions designed to deal with the problems the prosecutor had created, there is a real possibility that the verdict resulted from the inappropriate form of the prosecutor’s address. It is known that one juror was not prepared to convict. The circumstance that four persons were tragically drowned when the keel of the yacht failed would lead many people to the conclusion that some person or persons should be held responsible. When told, as the jurors were, on a number of occasions that the appellant could have and should have taken steps to ensure that construction was done properly, a conclusion that the appellant was negligent and should be held responsible for the deaths was likely. There were real difficulties in diverting the jury from a line of reasoning that the appellant was responsible for the deaths because he failed to create a system which ensured the yacht, including the keel was properly constructed.

97 I have discussed in greater detail in relation to ground 3 the issue of ITP and QA. To my mind the trial judge’s directions were adequate to deal with any problems due to the prosecutor’s reference to these matters.

98 The appellant submitted that the prosecutor may have deliberately intended to mislead the jury. It was submitted that the principles relevant to a Crown address which I summarised in Causevic v R (2008) NSWCCA 238 at [4] were breached.

99 Those principles are:

A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth ( Whitehorn at 663).
Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor’s function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]).
Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286).
In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]).
When complaint is made it is necessary to consider whether the prosecutor’s conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).

100 A careful reading of the prosecutor’s address does not support a conclusion that the prosecutor set out to deliberately mislead the jury. However, as I have indicated his address lacked the clarity which was required in the circumstances. Bearing in mind that the prosecution was concerned with tragic events when four lives were lost the prosecutor had a duty to ensure that his address did not divert the jury from considering factual matters in their appropriate legal context.

101 It is difficult to separate the problems with the Crown’s submissions and whether leave to raise this ground of appeal should be granted from my conclusion that the verdicts were unreasonable. As I have said I believe it to be likely that the prosecutor’s emphasis on the appellant’s obligation “to ensure” diverted the jury from its proper task. In the circumstances of this case the prosecutor’s submission misrepresented the task for the jury and it is reasonable to conclude that the judge’s attempts to confine their significance failed, contributing to verdicts which the evidence does not support. Although the issue was not raised at the trial, and it should have been, I accept that its significance was not perceived at that time. No tactical considerations were involved. The difficulties raised are fundamental to the reasoning of the jury. I would grant leave and uphold this ground of appeal. However, on its own it would of course only justify a new trial.

Ground 3

102 As I understand them, in part the appellant’s arguments in relation to ground 3 overlap with the issues raised under ground 2. Before the jury returned its verdict, but after the conclusion of the summing-up, trial counsel sought further directions to assist the jury to determine what a reasonable person would have done in the circumstances. The following directions were proposed:

“I direct you that you should consider evidence as to what other persons in the same industry as the accused did and did not do in 2001. That would be material to determining what a reasonable person in his position would have done. I also direct you that the evidence regarding systems of QA, ITPs, construction to survey and so on should be disregarded in determining what a reasonable person in the position of the accused would have done because there was no dispute in this trial that such systems were not required pursuant to contract and there is no suggestion that a reasonable person in the position of the accused would have adopted such systems in the absence of a contractual obligation. Finally, you should not reason that simply because four persons died as a result of the construction of the keel, a reasonable person in the position of the accused would have put in place a system of construction that would have prevented delivery of the yacht with a defective keel.

103 The trial judge declined to give any of these directions and said they had in substance already been given to the jury. It was submitted that by so doing his Honour erred.

104 The appellant supported his submission by emphasising the fact that, although Mr Brown gave evidence of what he would do when building yachts, the prosecution did not adduce any evidence of accepted or common industry practice. It was submitted that the evidence was that the appellant by carrying out spot checks conducted his business in a similar manner to that of Mr Brown.

105 The Crown took issue with this submission. It was submitted that the appellant’s procedures fell significantly short of those adopted by Mr Brown and any reference to them as a “yardstick” would accordingly have reflected adversely on the appellant.

106 During the course of the summing-up the trial judge referred to the evidence of Mr Brown describing him as a person who had expertise from his specialised knowledge or training in the building of yachts. The trial judge said:

“The Crown pointed out that this evidence is relevant to show what he would do for the purposes I would assume of indicating what may be done in the construction of a yacht that he with his background and his welding qualifications he had built yachts to ABS standards.”

107 This direction indicated that Mr Brown’s evidence was relevant to show what could have been done at the appellant’s factory. However, it was submitted that it did not direct the jury that what Mr Brown said he did and did not do should be taken into account by them for the purpose of determining what a reasonable person in the appellant’s position would or would not have done, being the legal test which the jury was required to apply.

108 Before a finding of negligence can be made it is necessary for a court to consider, where it exists, a common practice in the relevant field of endeavour. In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 McHugh J said at [34]:

To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute.”

109 There will be occasions when acting in accordance with a common practice will nevertheless be negligent. This may occur when, notwithstanding the practice, it is determined that “a reasonable person in the defendant’s position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff.” However, as McHugh J pointed out it is important to guard against the risk of hindsight informing a finding of negligence (see also Gordon v Ross [2006] NSWCA 157 at [74]-[78]).

110 In the present case, although Mr Brown gave evidence of the manner in which he conducted his own operation there was no other evidence of the manner in which boat builders carried out their tasks. It was open to the jury to conclude that Mr Brown himself carried out more detailed supervision when constructing yachts than the appellant did in the construction of “Excalibur”. Before they could return guilty verdicts, they would have to be satisfied that the appellant’s conduct fell so far short of what was reasonably required that he was guilty of criminal negligence.

111 The building of boats is not within the experience of the ordinary person and Mr Brown’s evidence was relevant to this question. The jury should have been instructed that it was relevant for them to have regard to his evidence when considering what a reasonable person in the appellant’s position would have done. However, they should also have been told that merely because, if it was the case, they were satisfied that the appellant did not do what Mr Brown would have done did not mean he was guilty of criminal negligence.

112 Accordingly, the direction which the appellant submitted should have been given was itself inadequate. Because there was good reason to believe that Mr Brown had imposed greater quality control than the appellant in the manufacture of a boat a direction in the terms requested may have operated adversely against him. By not giving the requested direction his Honour did not err.

113 The appellant submitted further that although the trial judge directed the jury that they should ignore what had been said about QA and ITPs, the direction which his Honour gave was insufficient to cure the prejudice to the appellant created by the prosecutor’s address, being the matters raised under ground 2. Because it was not suggested that there was any obligation under the appellant’s contract for the construction of the yacht, or evidence that a reasonable person in the position of the appellant would have adopted the identified systems in the absence of such a contractual obligation, it was submitted that there was a real risk that the jury would have reasoned that because those procedures were not followed the appellant was criminally negligent.

114 The direction which his Honour gave was as follows:

“Now it is in this context that the Crown made a number of comments about QA, what is called QA and Quality Assurance and ITPs. In the context of what you are considering in this case I want you to ignore what has been said about Quality Assurance and ITPs. Nobody has come to this court to give you any evidence as to what Quality Assurance is relevant to the building of a yacht.
Nobody has given you any evidence as to the detail of ITPs that may be relevant in relation to the building of the yacht or anything else for that matter. You might be rest assured if we had evidence in relation to quality Assurance and ITP matters it would have been of considerable detail and of considerable length. I appreciate the Crown puts the submission to you in relation to Mr Cittadini’s experience, that he would have been aware of Quality Assurance matters, in fact had complied with them in relation to work he had done in relation to other jobs and he would have known abut ITPs, Internal Test Procedures, where they were required.
In fact you might remember in his interview he discussed these matters. But the facts of the matter are in this case, and this is a most important matter that you must understand, Quality Assurance and ITPs, that’s Internal Test Procedures, were not part of the requirement of the construction of this yacht. I am not suggesting for a moment that it was a requirement of this yacht that it be badly built or anything of the sort, I am simply saying that those matters that have been the subject of quite, with respect, wasted time in the trial in terms of evidence from other witnesses, including examination of Mr Cittadini, are not relevant to this trial.
You have to look at the question of whether a reasonable person in the position of the accused provided proper supervision and quality control in the context of the reality of this case. The designer did not require these matters. The owner did not demand or require these matters. There was no agreement in relation to these matters and I can assure you again these matters they flow off tongue, Quality Assurance and ITP, but they are very complex matters indeed and they arise without, bearing in mind in this trail there is no evidence of it, they arise in very particular circumstances, as you might have inferred from the evidence that has been given.
So when you are considering the issues of supervision and Quality Control in the context of the Crown case as it is presented about Mr Cittadini, you must understand that he was under a duty to implement a system of construction of the yacht that incorporated adequate and proper supervision and quality control. He failed to implement such a system and the failure caused or resulted in the delivery of the yacht with a defective keel.”

115 To my mind this direction was adequate. Although his Honour did remind the jury that the Crown had referred to ITP and QA his Honour forcefully told the jury to ignore them. The Crown should not have referred to them but his Honour adequately neutralised any problem which may have been created.

116 The appellant complained of a further direction which the trial judge gave. His Honour directed the jury in the following terms:

“The Crown submitted to you, and I am quoting from his submission, that the responsibility of Mr Cittadini for the construction included, the obligation to supervise the yacht and supervise its construction and having placed methods and systems of supervision and quality control that would ensure that the yacht was built properly. Mind you, he said, and quite properly so, ‘It’s not enough to simply say well we know the keel wasn’t built properly because it failed. We know that it failed, because it was badly built and therefore it’s Mr Cittadini’s responsibility’.”

117 The appellant submitted that this direction was inadequate because it did not make clear to the jury that they should not reason from the deaths of the deceased to a conclusion that the appellant failed to do what a reasonable person would have done. It was submitted that the jury should not only have been warned about reasoning from outcome directly to criminal responsibility but also from outcome to a conclusion of negligence.

118 I do not accept this submission. To my mind the distinction which the appellant seeks to draw is of no significance. The direction that the trial judge gave in this respect was adequate.

119 Accordingly, none of the complaints raised in respect of his Honour’s directions under ground 3 was in my opinion justified. I would dismiss this ground of appeal.

Ground 4

120 As I have discussed the Crown put its case against the appellant in two ways. It was submitted by the appellant that these alternate legal bases did not depend substantially on the same facts but on discrete acts and omissions and for this reason a direction should have been given that the jury were required to be unanimous in respect of the way in which the Crown put the case.

121 The appellant relied upon the principle stated in Walsh v R [2002] VSCA 98; (2002) 131 A Crim R 299 at 316 [57] where it was said by Phillips and Buchanan JJA:

“where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient.”

122 It was submitted that this analysis is supported by the weight of recent authority: R v Cramp [1999] NSWCCA 324 (1999) 110 A Crim R 198 at 212 [65]; Fermanis v State of Western Australia [2007] WASCA 84 at [69]-[71]; R v Klamo [2008] VSCA 75 at [75]-[76]. See also KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417 where the appellant had been charged with the offence, under s 229B(1) of the Criminal Code (Qld), of maintaining an unlawful sexual relationship with a child. That offence involved proof that the offender had done an act defined to constitute an offence of a sexual nature in relation to the child on three or more occasions. Evidence was led of a large number of incidents amounting to offences of a sexual nature in relation to the child. However, the trial judge did not instruct the jury that they were required to be of the unanimous opinion that the appellant had done the same three acts, each constituting an offence of a sexual nature against the child. The respondent conceded that such a direction should have been given and the court found that the concession was correctly made: at 422 per Brennan CJ, Toohey, Gaudron and Gummow JJ, at 431 per Kirby J.

123 In the present case, the conduct constituting the primary and alternative bases relied on substantially the same facts. The negligence lay in the process of manufacture of the yacht. The same course of conduct was relied on as showing either that the appellant knew the keel had been cut and allowed the process to continue or that he allowed it to continue without any system of supervision or quality assurance.

124 No direction as to unanimity was sought at trial, probably because both the primary and alternative cases were circumstantial and depended on the same “factual matrix” which, as the appellant acknowledged, was “largely uncontroversial” as to what happened during the manufacture of the yacht. They were merely different ways of inferring negligence from the same evidence in relation to the process of manufacture.

125 In those circumstances the general rule that it was not necessary for the jury to be unanimous on how they reasoned to guilt applied and no direction in the terms now sought was required: R v Serratore (1999) 48 NSWLR 101; R v Dally (2000) 115 A Crim R 582; R v Spathis & Patsalis (2001) NSWCCA 476.

126 I would reject this ground of appeal.

Sentence

127 Both the appellant and the respondent filed appeals in relation to sentence. Because I am satisfied that the convictions should be quashed it is unnecessary to consider those matters.

Orders

1. Appeal upheld and the convictions quashed.
2. Direct verdicts of acquittal.

128 FULLERTON J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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