R v De Saint-Aromain
[2013] VSC 495
•2 August 2013 (delivered ex tempore; revised 13 September 2013)
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0006
| THE QUEEN |
| v |
| CARL ANTHONY DE SAINT-AROMAIN |
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JUDGE: | BONGIORNO JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-26 and 29-31 July, 2 August 2013 | |
DATE OF RULING: | 2 August 2013 (delivered ex tempore; revised 13 September 2013) | |
CASE MAY BE CITED AS: | R v De Saint-Aromain | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 495 | |
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CRIMINAL LAW — Manslaughter by criminal negligence — No case to go to jury — Acquittal entered pursuant to s 241(2)(b) Criminal Procedure Act 2009
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr A Lavery | Rainer Martini & Associates |
HIS HONOUR:
The Crown case has now closed and argument has been heard as to whether there is a case to go to the jury on the principal charge on this indictment, namely the charge of manslaughter. The principle to be applied is not in doubt. If there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the jury and that evidence is capable of supporting a verdict of guilty, the case must be left to the jury for its decision.[1]
[1]Doney v The Queen (1990) 171 CLR 207.
In order to establish its case of manslaughter, the Crown must prove beyond reasonable doubt that the accused was grossly negligent and that that negligence caused the death of the deceased. Here the Crown relied on a number of matters as being relevant to these issues:
1. The accused had fitted a motor to the boat which was too large, powerful and heavy.
2. That there were holes unfilled in the transom of the boat.
3. That the accused failed to ensure that the passengers wore life jackets.
4. That the accused operated the boat under the influence of cannabis.
5. That the accused operated the boat under the influence of alcohol.
6. That the accused was aware that his brother and the deceased were both alcohol and drug‑affected yet permitted them to travel on the boat.
Often in a case of negligent manslaughter the event by which the deceased died is not a matter which needs great attention. It is often obvious. But that is not this case. Here it is the first question which must be resolved before one can determine the efficacy of the case which the Crown has sought to make. There are only two people who could give a first‑hand account of the event which caused the boat to sink and which thus led to the deceased’s death by drowning.
Dean De Saint‑Aromain, the accused’s brother, described the event. He said that as the boat “came off the plane” the deceased, who was seated on the back seat of the boat on the right‑hand side, reached for a fishing rod which was on a pile of rods to the front left of the boat. To do so he moved forward. The boat had stopped. He and the deceased switched seats just as the boat was coming to a halt. As he moved towards the transom, water started to flood over the transom in the left‑hand corner. The water just came straight in. He described it as being initially a small flood which immediately became a large flood filling the boat, which then sank. He said there was no time to bale out water or even to grab the baling bucket. He estimated that the time between the water beginning to come into the boat and the boat sinking was, “seconds, probably five, if that”.
The only other direct evidence as to the boat sinking came from the accused’s record of interview. He said he was driving the boat. As they approached the fishing spot he dropped off the power and slowed down, although before that he was not going fast, “Just like idling along”. He said he felt something and thought that he had touched the bottom. He said that the bow wave that “we just created from taking off a bit came over the back of the boat. The boat tilted both ways. It was engulfed and went under”. He said that before that event there had been a little bit of water on the floor of the boat. He said he did not lose control of the boat before this event and it did not happen because of speed. He described the propeller as having grabbed, “…something just before the boat stopped”. Later in the interview the accused described Dean and the deceased as leaning forward.
There were no other eyewitnesses and no expert or other witnesses who contradicted these accounts or gave evidence which would cast doubt on their general explanation as to how the boat sunk; that is to say by water entering from the stern or back of the boat.
There is nothing in either of these accounts which would permit the jury to come to any conclusion as to the speed at which the boat was travelling before it, “came off the plane” other than that deposed to by the accused’s brother and the answers of the accused himself. It follows that there is no causal link established by their evidence between the power of the motor and the cause of the boat sinking, as, although a motor of greater power might have the potential to propel the boat faster, and thus create a larger bow wave which might imperil the boat when it stops, if the extra power is not used, there is no reason to conclude that the bow wave referred to by the accused in his record of interview would be any bigger or more dangerous with a more powerful motor than with one less power.
As far as the size of the motor is concerned, there is no causal link suggested by the evidence between the physical size, (that is to say the bulk or weight) of the boat’s motor, and its sinking in the circumstances of this case.
It follows from the above analysis that there is no case to go to the jury here based upon either the size or power of the motor. To leave such a case to their consideration would be to invite the jury to speculate as to the cause of the boat sinking.
The Crown case was gravely deficient with respect to the weight of the motor. There was no evidence as to the weight of the motor; nor was there any evidence as to the weight of the motor recommended by the boat’s manufacturer which, the Crown contended, had been negligently replaced by the accused with one which was too heavy.
The only evidence which might go to this issue is contained in one answer of the accused in his record of interview to the effect that he was a bit worried that the motor was, “A bit heavy for it” and an answer by a previous owner of the boat, Christopher Martin, that the motor which he saw on the boat after he no longer had it was, “A lot bigger” than the 15‑horsepower Suzuki motor which had previously been on it. But again this evidence does not come even near to providing a sound legal basis for a finding that the cause of the boat sinking was that the motor was too heavy or, for that matter, too big.
Further, none of the witnesses who gave evidence as experts expressed the opinion that this incident was caused by any excess weight in the motor. Mr Daniels, a marine assessor, expressed no opinion about the accident at all. His evidence was confined to an examination of the motor for damage, the relevance of which evidence is not immediately apparent. In cross‑examination he gave uncontested evidence that there is not necessarily any correlation between the power of an outboard motor and its weight, so that a 15‑horsepower motor may, in some cases at least, be heavier than a 20‑horsepower motor. He did not weigh the motor he examined, nor did he weigh any other motor for the purposes of comparison.
Mr McLellan, an employee of Transport Safety Victoria, upon whom the Crown appeared to place principal reliance, gave evidence of various tests he carried out on the relevant boat as to its characteristics. He did not weigh the relevant motor. Nor did he examine or weigh a relevant 15‑horsepower motor so as to demonstrate any weight differential. No explanation as to why this was not done was even proffered by the prosecutor.
The tests which Mr McLellan undertook, which were designed to simulate what happened on 3 September 2010, could not for various reasons be rationally regarded as valid simulations. Any inferences from those tests were at best inconclusive. They proved nothing relevant. Nor were they documented adequately or in some respects at all; no data was recorded as to the subjects used in the test and no opinion was or could have been expressed which would entitle a jury to reach the conclusion that the weight of the engine was even a contributing factor to the relevant event.
Mr McLellan said that the boat was suitable for internal waterways and bay conditions when they are calm. There is no suggestion here that there was anything other than calm water in the bay at the time of the relevant event.
Had there been any contest to the admission of Mr McLellan’s evidence and an adequate examination of it on the voir dire undertaken, most, if not all of it, would have been very likely to have been excluded as irrelevant or at least excluded on discretionary grounds.
The third technical witness, Mr Wallace, was a former employee of the boat’s manufacturer. He gave no evidence as to the relevant incident, merely that the manufacturer had recommended an engine of a maximum power of 15‑horsepower. He said nothing about the weight of the motor, nor did the manufacturer. I conclude that there is no evidence upon which the jury could legally find that the size, power or weight of the motor was an operating or substantial cause of the boat foundering and hence of the death of the deceased.
As the Crown did not ultimately suggest in argument that the holes in the transom were relevant to the boat’s sinking, the second of the six matters referred to can be eliminated.
The third matter upon which the Crown relied concerns life jackets. This matter puts the Crown case on a different basis. To succeed in establishing negligence on this basis the Crown would have to have proved that the deceased would not have died had he been wearing a life jacket. But there was no evidence as to the efficacy of life jackets generally or as to the efficacy of the life jackets which were on this boat. Nor was there any evidence of how long after the boat sank the deceased survived and whether a life jacket would have continued to support him for this length of time or whether he would, had he been supported, been liable to have died from some other cause such as hypothermia. For a jury to conclude that the deceased would have survived had he had a life jacket on would have to be speculation. It could not act on evidence because there is none. This basis for a manslaughter conviction cannot be left to the jury. There is no evidence.
The fourth and fifth matters relied upon by the Crown were the intoxication of the accused by alcohol and marijuana; but there is not the slightest evidence that such intoxication had any effect on the accused’s handling of the boat. Having regard to the evidence put at its highest, the jury could not legally find that the accused’s ingestion of either alcohol or marijuana was causative of the sinking of the boat in any sense. Accordingly, it could not find that the death of the deceased was causally linked to the accused having drunk alcohol or inhaled or ingested marijuana. These matters likewise cannot be left to the jury.
In its argument the Crown did not appear to rely upon the sixth of the above matters, that the accused allowed the deceased on to the boat when he knew the deceased was alcohol or drug‑affected. In any event, to have done so it would have had to establish that the cause of the boat sinking was as it contended: that the accused had fitted an inappropriately heavy motor to it. For the reasons given, there is no evidence upon which a jury could legally and lawfully find that this was so. Accordingly, this way of establishing the Crown case also cannot be left to the jury.
There is no case to go to the jury on any of the bases contended for by the Crown. Accordingly, the jury will be discharged from giving a verdict, and an entry of not guilty to the charge of manslaughter will be entered in respect of the accused, pursuant to s 241(2)(b) of the Criminal Procedure Act 2009.
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