Cittadini v R

Cittadini v R - [2010] NSWCCA 291 - NSWCCA 2010 case summary — Zoe

[27]

19 Mr Derek Harris gave unchallenged evidence that he was having difficulty bending the plates to form the keel and asked the applicant if he could cut the plate to facilitate the process. He said he was told that he must not and that if he was not able to perform the task assigned to him the plates would have to be sent out to another factory. 20 In the result there was no evidence at trial as to who cut the keel and no evidence that anyone knew it had been cut. McClellan CJ at CL noted: "[43]… There was expert evidence that the process of cutting, welding and polishing would have taken at a minimum about six 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.

[32]

The significance of Mr Elliott's statement and his evidence at the inquest to the first basis upon which the Crown put its case 22 The Crown submitted that Mr Elliott's statement and his evidence at the inquest was material to both of the bases upon which the case against the applicant was left to the jury. 23 Mr Elliott was a fitter and turner employed at the applicant's premises at the time that the keel was constructed. The relevant portions of his statement are as follows: "9. I did not have anything to do with the manufacture of the keel at this stage but I was in the bottom factory doing various duties with the fabrication of the boat. It would have been around the same time that I was rolling the hull of the yacht when I saw the following. I saw what I knew to be the keel completed in its raw metal state. By that I mean that it was fabricated to the point that only bulb needed to be fitted. The keel was clamped to a thick bench, there was a hydraulic jack or what is known as a porta-power of at least 4 inches in diameter between the keel and bench. I don't remember how it was actually clamped to the bench but I know it was. From memory Claudio Erle said to me to go and have a look at what they were doing to the keel, the amount of stress that they were putting it under. 10. The keel was clamped to Adrian Presland's bench. He was the person working on the keel. I cannot remember any other person working on the keel with him. Although I saw Alex Cittadini talking with Adrian when the keel was clamped on his bench. 11. I remember seeing the keel on Adrian's bench, I'm not sure if the keel was clamped or not but I saw a cut running across from the leading edge of the keel to the trailing edge. Detective Senior Constable Dean has provided me with a drawn diagram. I have marked on this diagram where I saw the cut running from the leading edge to the trailing edge. I saw this cut only on one side as the other side was on the bench. I cannot be sure if the leading edge or the tailing edge of the keel had been fitted and welded when this cut was present. I remember the cut because I was quite surprised that anybody would allow it to be cut horizontally. Nobody in the right mind would put a cut in that position on a keel. For one you're never going to get full strength out of the piece of steel after re-welding it. I had a laugh with the guys in the machine shop, Maurice Painter and Claude Erle about how much stress they were putting the keel under. I knew that the cut had been done by a 9-inch grinder. I could tell that just by looking at it. 12. I was in and out of the bottom factory and welding shop. The next time that I saw the keel was that it was still on Adrian's bench and that the cut had been welded, reground and cleaned up. Where the cut was, the metal was of a different texture and appearance. It looked as though the weld had been sanded. This section was noticeable from the remainder of the keel. It was shiny across the face where the cut was. In my opinion it was not a clean up line for a heat-affected zone because of two reasons. One is that I saw the cut in the same location prior, and knew that it had to be welded and secondly why would you need to clean up a heat-affected zone when the keel was being sand blasted."

[33]

24 His evidence at the inquest was broadly consistent with his statement save for the fact that he made it clear that he did not see anyone at Mr Presland's bench when he saw the keel in its cut state, and that he believed that it was most likely that he saw the keel in that state in the evening, when he was picking up some steel from the factory using a key that allowed him access to the factory after hours. He said that the factory was empty at that time. He said that he doubted that it would have been on a weekend as he did not work weekends. He also said that he was unsure as to whether it was on his return to work after a weekend that he saw that the cut had been welded and the cut line cleaned up. He said it might have been a week after he saw it cut or it might have been three days or even five days later. In short, he was unsure of the time gap between seeing the keel cut and when he next saw it after it had been welded. 25 The Crown submitted that the significance of Mr Elliott's evidence on the first basis upon which the Crown put its case (namely that he actually knew the keel had been cut) was that the cutting and re-welding of the keel may not have been a secret operation performed by unknown persons within a period of six to eight hours such that the applicant could not have been expected to prevent it occurring or detect that it had occurred, given that Mr Elliott saw the keel in its cut state, albeit after working hours, and that some days later he saw the two parts welded together. The Crown also submitted that the fact that there was no one else present when Mr Elliott saw the keel in either its cut or its welded state strongly suggested that the cutting and welding was not performed in one single operation. This not only supported the Crown case that the operation was not a clandestine operation concealed from others in the factory but, further, that if Mr Elliott saw the cut and the re-weld before it had been bent and polished by Mr Presland and Mr Harris, the keel must have borne obvious marks when they dealt with it such as to cast serious doubts on their evidence (and the applicant's case by association) that they saw nothing irregular when they applied heat to it. If, on the other hand, Mr Elliott saw the keel cut after it had been bent and polished then the resultant horizontal band should have alerted Mr Presland to the fact that someone else had worked on the keel.

[35]

27 There is, however, some force in the applicant's submission that although Mr Elliott's evidence was probative of the question of whether Mr Presland was involved in the cutting and re-welding of the keel, the fact that he recalled seeing the keel in its cut state when no one else was present, does not make it materially more likely that the applicant was aware of the operation, or that he would or should have been aware of it were he to have undertaken adequate supervision of those who were engaged in the construction of the keel. According to the applicant this was said to follow from the fact that, taken at its highest, Mr Elliott's evidence does not exclude the possibility that the whole operation of cutting and re-welding, even if separated by days or a weekend, was nevertheless performed out of hours and in secret or, contrary to Mr Presland's evidence at trial, that he knew that the keel had been cut, or was himself responsible for it, but kept it from the applicant knowing the applicant had not authorised the cutting. The applicant submitted that the evidence tendered on the application as it related to Mr Elliott's observations failed to establish any additional relevant fact in the Crown case against the applicant and, for this reason, the evidence does not make the decision to prosecute the applicant on the basis that he knew the keel was cut and re-welded any more reasonable. I accept that submission. The principles which are involved when this Court considers whether the verdict of a jury was unreasonable, having determined that there is nothing additional to the evidence led at trial probative of the applicant's guilt on the first of the alternate bases upon which the Crown put its case, and consistent with the unanimous judgment of this Court on the conviction appeal, and in particular the reasons set out in [42]-[54] of the judgment of McClellan CJ at CL. I am compelled to the view that it was unreasonable for the Crown to have instituted proceedings against the applicant on the basis that he knew the keel had been cut. The significance of Mr Elliott's evidence on the second basis

[46]

36 It was not submitted by the applicant that the Crown's evaluation of the weight of the evidence which was ultimately excluded, but which was otherwise available to be considered at the time of the institution of proceedings, was wholly unreasonable. The applicant's submission was that evidence of other defects in the construction of the yacht was not relevant on the application or, if it was received, it should carry no weight since its probative value was outweighed by impermissible prejudice as reflected in the ruling of the trial judge. It was further submitted that the Crown's reliance on the evidence invites this Court to speculate on its true probative value when the evidence is not at this time susceptible to challenge or explanation. I do not accept this submission. In my view, an objective assessment of the evidence supports a finding that the Crown, acting reasonably, was entitled to regard the evidence of other defects in the construction of the yacht as relevant and admissible in accordance with what was its submitted position on the s 5F appeal in October 2008 (see the analysis of that evidence by Simpson J extracted in [34] above). The fact that the judge who ultimately presided over the trial came to the view that the evidence of other defects should be excluded in the exercise of discretion does not render the evidence that was excluded irrelevant, or of no probative value, in the evaluative exercise under s 3 of the CCC Act. 37 In my view, when the Crown instituted the proceedings it was entitled to regard the extent of other defects in the construction of the yacht in the context of the cutting and re-welding of the keel as relevant to proof of an inadequate and potentially negligent system of work for which the applicant may have been criminally responsible. That is not to undermine the fact that the applicant has been acquitted by this Court. This appeal was not concerned with the views expressed by other judges in a series of interlocutory appeals brought under s 5F of the Criminal Appeal Act, nor concerned with the fact that as the trial progressed otherwise relevant evidence was excluded by the trial judge in the exercise of discretion. The focus of the first ground of appeal was the evidence which was actually led at trial and whether, having regard to that evidence and the way the Crown put its case, the verdict of the majority of the jury was unreasonable. The potential to skew the test which needs to be applied on this application by reference only to the judgment of this Court in directing verdicts of acquittal must be guarded against. The test is whether it was reasonable to institute the proceedings by the presentation of the ex officio indictment in January 2008, not whether, in the result, the verdicts were reasonable having regard to the evidence that was ultimately considered by the jury.

[47]

38 In resisting the application for costs the Crown also relied upon the fact that the applicant gave evidence at the inquest that there were facilities available at his premises for implementing an inexpensive and relatively simple dye penetration test capable of testing whether welds applied to various parts of the yacht were properly achieved. If implemented, the Crown submitted these tests might have ensured that a weld of appropriate penetration was achieved at any given point in the construction of the yacht including, for relevant purposes, the area of the re-weld across the horizontal face of the keel by those responsible for applying the weld. Even if the cutting and re-welding was kept secret from the applicant, the Crown submitted that this Court should regard the procedure as one undertaken by employees as a short cut or to overcome a problem they encountered in the construction of the keel and not an act of industrial sabotage. In these circumstances, so it was submitted, if a simple method of testing the penetration welds was available, those same employees would likely have utilised that test and determined for themselves that the welds were inadequate such that the disaster at sea may have been averted. This issue was not canvassed with the applicant in the ERISP. In addition, the Crown submitted that the defence advanced by the applicant at trial, namely that QA and ITPs were expensive and were only required on the client's express instructions and the applicant's client did not require them, was not able to be tested by reference to the availability of the dye penetration test because the applicant elected not to give evidence. (The Crown did not make clear why this evidence was not explored with Mr Presland in cross-examination.) 39 Whether it is reasonable for the Crown to approach an evaluation of the strength of its case on the basis that an accused might give evidence is not to the point. The point is that the applicant's evidence at the inquest was available to the Crown before the proceedings were instituted. (The evidence was not given under a s 128 certificate.) Despite the fact that the applicant made no admissions of substance at the inquest, in my view the availability of inexpensive testing procedures not incorporated into the work system was a matter the Crown was entitled to take into account in formulating its approach to proof of the applicant's guilt on the basis of his failure to implement a safe system even if, in the result, the evidence was not before the jury. I am of the view that this is so despite the fact that the trial judge ultimately directed the jury to ignore the prosecutor's submission concerning QA and ITPs when considering what a reasonable person in the applicant's position would have done because, as the evidence established, the applicant was under no contractual obligation to provide them, and that this Court was satisfied that it was not necessary for the applicant to provide them in discharge of his duty of care (see [115] of the appeal judgment).

[48]

40 At [84]-[85] of the appeal judgment, McClellan CJ at CL was also of the view that causation presented what his Honour described as "an insurmountable difficulty" for the Crown at trial. If that observation applies equally to an objective assessment of the evidence available to the Crown at the time the proceedings were instituted, as contended for by the applicant, then the application for costs is well founded. 41 In order for the Crown to make good its case against the applicant it was not enough, as a matter of law, that the deaths were causally linked to the failure to provide or implement proper supervision and quality control. It was necessary for the Crown to establish to the criminal standard that the applicant's omissions (as alleged) caused the death of those on board the yacht by "significantly contributing" to the failure of the keel. Because the cutting and welding of the keel was an unauthorised deviation from the architect's plans and, as this Court found, executed without the applicant's knowledge (in fact contrary to his express instructions), and because the cut and weld was not detectible by visual inspection, McClellan CJ at CL concluded that once QA and ITPs are put to one side it was not open to the jury to find that a system of supervision which was capable of identifying an unauthorised event of the kind that occurred in this case should have been in place. 42 The Crown emphasised that his Honour's conclusion on the issue of causation hinged upon the direction the trial judge gave the jury to disregard the QA and ITPs. This much is clear from his Honour's reasoning in [85]. When the proceedings were instituted, however, the Crown submitted that it had available to it evidence from a variety of sources additional to the evidence the trial judge directed the jury to disregard. This included the applicant's evidence at the inquest that there were measures available to be implemented as part of a system of quality control (including the dye penetration test and pre-testing the skill and proficiency of the welders) which, if implemented, was said to be capable of persuading a jury that the cutting of the keel, and importantly, so far as the reason for its failure is concerned, the defective welding of the keel, would not have been done and, if done, would have been detected before the keel was attached to the yacht. Although the evidence established that there was no general practice, much less a requirement, in the yacht building industry for welds to be pre-tested, the Crown tendered evidence in the form of a statement from Mr Brown, an experienced boat builder, that he tested his welders before they were engaged in the construction of a yacht. The Crown submitted that this was evidence a jury was entitled to have regard to when considering what a reasonable person in the applicant's position would have done, and whether the applicant's failure to pre-test his employees should attract criminal sanction, and that it was reasonable for the Crown to rely upon this evidence when instituting the proceedings. I have already referred to the Crown's submission on the availability of the weld penetration test and its bearing on the issue of causation. 43 In the result, the Crown submitted that on an objective analysis of all relevant facts when the proceedings were instituted, it was reasonable for the Crown to hold to the view that a jury could have been satisfied that the applicant's failure to provide an adequate system of work caused the death of the four sailors by contributing significantly to the failure of the keel. The fact that the weight of the evidence of the need for and practice of pre-testing welders was diminished as the trial progressed, and that the availability of the dye penetration test was not adduced at the trial at all, is, as the Crown emphasised, not determinative of the question posed by the application under the CCC Act, namely whether the applicant has made good its submission that proof of causation on the alternate basis upon which the Crown put its case was so problematic that it was not reasonable for the proceedings to be instituted.

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