Presland v DPP

Presland v DPP - [2009] NSWDC 178 - NSWDC 2009 case summary — Zoe

[15]

7 In Mordaunt v DPP [2007] NSWCA 121, McColl JA gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. These are set out at [36] of her judgment and the relevant matters to this application she identified may be summarised as follows: i. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes. ii. The "institution of proceedings" in s.3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill. iii. The applicant for a s.2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances. iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?" v. The judicial officer considering the application must find what were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted "it would not have been reasonable to institute (the proceedings)" - an applicant for the Certificate must succeed on both the " facts issue " and the " reasonableness issue ". vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with the threshold question posed by s.3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s.3(1)(b) and to the ultimate question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s.2 (of the Act). vii. Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings, but the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (viii)-(xi) below in part). viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious. ix. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence. x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal. xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution. xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges. xiv The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate.

[31]

23 Mr Presland, at an early stage of the investigation, was interviewed in Victoria by New South Wales Police in January 2003 and admitted to building the keel. At that time it would appear the investigators had information from an expert metallurgist about some aspects of the keel's construction. I understood the complete opinions of Mr Gray, or any other expert, were not available. Certainly they were not disclosed to Mr Presland in the questions he was asked. He suggested in this interview that the keel had been cut and welded after the completion of the keel by him, which included the welding of various ribs to enable the two sheets of the keel, or skins, to be connected, the making of the aerofoil shape, the construction of the 'box' on top and the placing of the 'tube' or pipe at the leading edge. He did not mention any cuts to the keel fins, just the probability of bending them. The expert evidence, produced by the Crown at trial, was capable of establishing that the horizontal cut to the keel and the welding occurred before the leading edge tube had been attached, as there was no evidence of any grind marks, consistent with the cutting of the keel with a 9 inch grinding disc, upon the tube or in the vicinity of the welding of the tube to the skins or gussets. The accused produced evidence from a very highly qualified metallurgist (Assoc. Prof. Yeomans) who gave evidence at the trial that his examination permitted a possible conclusion that the cut to the keel occurred after the leading edge pipe was connected. But the significance of that opinion and any conflict in the evidence on this issue fell away as an issue for consideration as the real issues in the trial progressed. In any event the accused, in the context of his denials was not in a position to say when the cut occurred. It was such a significant alteration to the keel's fabrication it was natural for him to assume at the time of interview it happened after the keel passed out of his hands. He was building the keel over a number of months from after July 2000 (when the SAF steel was delivered) until 2001. He had other jobs to do unrelated to the yacht.

[33]

25 A matter advanced by the prosecution to the jury in its closing address, was that the cutting of the keel at the heart of the Crown case was concerned with various aspects of the construction of the keel, and/or the fabrication of the fins, and that it did not have anything to do with the fitting of the hydraulic ram, or the construction of the ram compartment, because the fitting of the ram occurred after the construction of the keel. The Crown suggested to the jury that one reason for cutting the keel was that the keel was bent or distorted in its shape by the effect of the welding which had taken place to attach the port side to the starboard side and/or to fit the various ribs or gussets comprising the internal structure. Alternatively, it was suggested the cutting of the keel was associated with shaping the fins. It was said that any distortions in the shape of the keel through its construction would not have been removed by the means claimed by the accused to have been used to give effect to the aerofoil shape, such as heating along the line of the keel approximate to where the horizontal cut was placed and the use of a device called a "porta power (sic)". The prosecution's contention in the closing address in this respect was different from its contention in its opening address that the cutting of the keel was related to the fitting of the hydraulic ram. This significant change in its case as to the reasons for the accused to cut its keel reflected, in my mind at the time, the disarray of the prosecution case on this issue of 'motive' or 'reason' to do the horizontal cuts given the evidence at trial which could reasonably have been anticipated by it. Evidence was available at trial from the applicant by production of invoices and delivery documents that the ram was ordered in August 2000 and delivered in September 2000, while the keel was still being constructed. Inadequacies in the size or shape of the ram compartment could have been identified weeks or even months before the applicant completed construction of the keel, while the keel was in the applicant's work area.

[35]

27 It was also part of the Crown's argument in closing and on this application that the accused had "changed his position" in his evidence at trial, from the account he gave when interviewed by police on or about 28 and 31 January 2003 in a couple of respects. The accused suggested to the investigating police then that no horizontal cuts could or were made before he finished his work on the keel. Further, he could not recall any cuts made by him in the area of the horizontal cuts to the fin. As to this latter aspect he recalled the heating process in general terms. He did not remember cutting the skins. Not only in the accused's evidence at trial, but also beforehand during the prosecution case in cross-examination of particular Crown witnesses on the topic, such as Mr Harris and the metallurgist Mr Gray, it was suggested that minor nicks at the edges of the keel, at the forward and aft ends, were done by the applicant to deal with "creasing" which had occurred when the surface of the skins had been heated and pushed down to give effect to the rolled or curved shape of the keel profile. These matters were raised with Mr Gray on 2 March 2009, very early in the prosecution case, well before the applicant gave evidence. Related to this assertion was the accused's account of heating the skins horizontally, forward to aft, to aid the bending process when applying 'G' clamps and the polishing or cleaning up that followed to remove the mark or line caused by the heating. Mr Harris's recollection of events at trial supported the accused's version of events, and the sequence of events, in which Mr Presland and Mr Harris were involved together in the construction of the keel, primarily between stages one and seven of the schematic drawings made by Mr Presland (Exhibit 1). The creasing effect at the edges requiring nicks to be made at the edges to clean up and smooth out those areas. Mr Gray and Associate Professor Yeomans, acknowledged the potential for creasing at the outer edge of the skins and the use of nicks, 'dressing' (or bashing down) them and welds on the area of the nicks to smooth them out. These creases and "nicks" could have been obliterated by the horizontal cut of the keel.

[39]

31 As there was a reasonable explanation for him being unaware that the horizontal cut and welding had occurred in the context of his consistent denials, other matters which have been adverted to in the applicant's submissions taken into account as well, lead to a conclusion that his acquittal was inevitable. This did not turn upon 'word against word'. This other evidence underscored what was clear from the totality of the expert evidence and the maintained denials of wrongdoing by the accused and strengthened an inference or conclusion inconsistent with guilt. Some of these matters have been referred to before in different contexts. They included: (i) Unchallenged evidence that the welding that Mr Presland admitted to, or was otherwise proven to be his, was of a far superior quality to that of the person who welded the horizontal cuts to the keel. The evidence from the main experts, particularly Mr Gray and Associate Professor Yeomans, was to the effect that it was inferior welding which ordinarily one would not expect from a person of Mr Presland's skill. Mr Gray agreed that welds admitted by Mr Presland on the original cover plate were possibly not made by the same person(s) who did the poor welds on the second cover plate which remained when the yacht was inspected after capsize. (ii) Given the time taken for the construction of the keel to occur, the workforce and the layout of the factory, there was ample opportunity for other persons or another person, to horizontally cut the keel and weld it back together in the absence of Mr Presland. (iii) There was evidence that there were a large number of people who could weld but of whom most, not necessarily coincidentally, were of a less skilful standard than that consistently displayed by Mr Presland during his employment. (iv) There was evidence that Mr Presland himself knew that to horizontally cut and weld the skins of the keel would cause a weakness to its structural integrity and that he would not do that, either of his own motion and/or without consulting someone superior to him such as Mr Cittadini. (v) He had no reason to horizontally cut and weld the keel skins back together.

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Judgment (57 paragraphs)

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Cases Cited (6)