R v Alexander CITTADINI [2008] NSWCCA 256 | Case summary

5 November 2008 R v Alexander CITTADINI Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912, the Deputy Director of Public Prosecutions ("the DDPP") appeals against a ruling made by Sorby DCJ on 15 October 2008 excluding certain evidence the Crown proposed to tender in a criminal prosecution. 3 S 5F(3A) contains a jurisdictional hurdle: the DDPP must show that the exclusion of the evidence "eliminates or substantially weakens" the prosecution case. The respondent raises no issue that the DDPP has cleared that hurdle. 4 The respondent, together with another man not involved in the current appeal, is charged with 4 counts of manslaughter (by criminal negligence), arising out of the deaths by drowning, on 16 September 2002, of four crew members of a yacht called The Excalibur. Manslaughter by criminal negligence is committed where an accused causes the death of a person by an act or omission which so far falls short of the standard of care required by a reasonable person, that it goes beyond a matter of civil wrong and amounts to a crime: Nydam v R [1977] VR 430 (apparently approved by the High Court in The Queen v Lavender [2005] HCA 37; 222 CLR 67 at 87). To prove the offence a very high degree of negligence is necessary: Andrews v DDPP [1937] AC 576; R v Adomako [1995] 1 AC 171. 5 Where it is alleged that the accused is guilty of manslaughter by reason of an omission, the Crown must prove that the accused owed a personal legal duty of care to the victim and failed to carry out that duty to such a high degree that it could be viewed as "wicked" negligence: R v Taktak (1988) 14 NSWLR 226. 6 The trial was fixed to commence on or about 13 October 2008. On that day, and before a jury was empanelled, senior counsel for Mr Cittadini sought a ruling on the admissibility of certain evidence the Crown proposed to tender. Lengthy argument took place and his Honour delivered a judgment, to which I will shortly refer. Before coming to that it is convenient to outline the nature of the case the Crown proposes to make. No Crown case statement was provided. However, a comprehensive outline of the case, and the evidence in question, was given by the Crown prosecutor. From that it is possible for this Court to appreciate the relevant issues. 7 The case the Crown proposes to make is as follows. 8 Mr Cittadini was the Director and Manager of a company, Applied Contract Engineering Pty Ltd, that made kilns. He was acquainted with Mr Alan Saunders. Mr Saunders commissioned Mr Cittadini's company to construct a yacht which came to be called The Excalibur. After delivery the yacht was found to have a large number of defects, some of them significant, one extremely so. The extremely significant defect was in the construction and fitting of the keel, which was of stainless steel. Contrary to all accepted marine construction practice, the keel had, for some reason, been horizontally cut in two, and the two pieces then welded together. This made the yacht unsafe and unfit for sailing. The fact of the cutting and welding was not known to Mr Saunders. 9 Other defects in the construction included defective aluminium welding in the hull; defective welding in the rudder housing area; and a variety of others. 10 In September 2002, a crew of six took part in some competitive events at Hamilton Island, and set out to return to Sydney. On 16 September, while the yacht was moored at Port Stephens, a heavy lead weight fell from the keel. The yacht capsized. Four of the six crew drowned. 11 The cause of the capsize, and therefore the four deaths, was the defective construction of the keel. 12 So much is not in issue. In particular, it is accepted on behalf of Mr Cittadini that knowingly to deliver the yacht with the keel in the condition it was, and allow it to be sailed, amounted to criminal negligence on the part of whomever was responsible for that being done. Mr Cittadini denies any knowledge of the cutting and welding of the keel. That, plainly, will give rise to a contested factual issue. The Crown will set out to prove that Mr Cittadini did have relevant knowledge. 13 The Crown proposes, however, to put its case in two alternative ways. Its primary case is that Mr Cittadini either was involved in the cutting and welding of the keel, or that he knew that that had been done. Either way, he is criminally liable. 14 The alternative way the Crown proposes to put its case is this: as Director and Manager of the company, Mr Cittadini failed to implement any, or any adequate, processes of supervision or quality control in the construction process; and this failure resulted in the supply to Mr Saunders of the defective yacht. It is part of this alternative case that any adequate process of supervision or quality control would have detected the defect in the keel (and that measures would have been taken to prevent the keel being fitted, or to remove it). 15 The primary case can be put to one side. The appeal is not concerned with the issues that there arise. It is only in relation to the alternative means of putting the case that the evidence is in dispute. In support of the alternative case the Crown seeks to adduce the evidence of the defects in the welding in the aluminium making up the hull, the rudder housing, and of the other assorted defects in the construction. 16 In the pre-trial voir dire, objection was taken to the admission of the evidence of any defects other than that concerning the keel. Senior counsel for Mr Cittadini argued that, when properly analysed, the evidence is properly characterised as tendency evidence within s 97 of the Evidence Act 1995, and that it did not meet the test of admission posed by that section, or, alternatively, it failed the further test prescribed by s 101. Sorby DCJ accepted that the evidence was tendency evidence, and, except in respect of one item of the evidence, rejected it as having insufficient probative value. 17 Ss 97 and 101 are relevantly in the following terms: "97. The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) …; or (b) The court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) … " "101. [In a criminal proceeding, and in addition to s 97] (2) Tendency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) … (4 …" 18 For present purposes, s 97 can be further refined to read as follows: "Evidence of … conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way …" 19 The Crown's position, at first instance and on appeal, is that the proposed evidence is not tendency evidence, but direct evidence going to a fact in issue. 20 The key is to identify the purpose for which tendency evidence is tendered and admitted. 21 I adhere to the views I have previously expressed, in Gardiner v R [2006] NSWCCA 190, at [124]: "124. Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion." 22 Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect. 23 Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind). 24 For present purposes, state of mind can be put to one side. Here, on behalf of Mr Cittadini it was argued, and Sorby DCJ accepted, that the evidence the Crown proposes to adduce is tendered to establish that, because Mr Cittadini was negligent on other occasions, in respect of other aspects of the construction of the yacht, he was negligent in the construction of the keel. Submissions to similar effect were put to this Court. Counsel for Mr Cittadini submitted: "The submissions of the Crown …appear to proceed on the flawed assumption that, while the alleged cause of death is the cutting of the keel, the alternative basis of liability may be proved if negligence in the construction of the yacht as a whole is proved. This is not correct. It is not a fact in issue whether the respondent was negligent in respect of the construction of the yacht. The material fact in issue is whether he was negligent in respect of the act of cutting the keel horizontally across and welding it back together (that is, negligent in respect of the act causing death) …" 25 But that is not how the Crown wishes to present its case. The Crown can establish, by other evidence (and it is not disputed) that the construction of the keel was negligent. The issue in relation to Mr Cittadini in that respect is whether the Crown can establish that he was aware of the negligent construction. That is the first basis on which the Crown puts its case, and is not relevant to the present appeal. 26 The alternative way the Crown puts its case does not depend upon the chain of reasoning for which Mr Cittadini contends. The Crown's alternative position is that the system, or process, of the construction of the yacht was negligent, deficient in supervision and quality control. The inference the Crown will seek to have the jury draw is, not that, because he was negligent in other ways, Mr Cittadini was negligent in the construction of the keel; it is that the negligence or inadequacy of the system was the explanation, or cause, of the negligent construction of the keel (more accurately, the delivery of the yacht with a negligently constructed keel). That is not tendency reasoning. True it is the Crown will seek to have the jury draw an inference: the inference (from the assorted other defects) that an inadequate and negligent, system of supervision was in operation. 27 In order to establish a negligent system, it is not sufficient to show negligence on one occasion, or an isolated defect. The Crown will seek to prove negligent system by an accumulation of defects in this yacht. It will invite the jury to infer that, by reason of the accumulation of defects, the supervisory process was inadequate and negligent; and that, as part of, or because of that inadequacy, the yacht was delivered with a defective keel. Mr Cittadini's criminal liability, on this scenario, derives not from his conduct in respect of the construction of the keel, but from his responsibility and obligation in respect of the overall process. The negligence in supervision allowed the defective yacht to be delivered. On this scenario, it is not part of the Crown's case that Mr Cittadini knew, or even ought to have known of the defective keel. There is no "conduct on a particular occasion" involved. There is therefore no tendency reasoning. 28 The respondent's argument was founded upon a faulty analysis of the way in which the Crown puts its alternative case. That analysis was: · Mr Cittadini was negligent, in a variety of ways, on a variety of occasions, in the construction of the yacht; · therefore he had a tendency to be negligent; · therefore the jury could infer that he was negligent in the construction of the keel; · the defective keel was the cause of the deaths. 29 The correct analysis is: - · Mr Cittadini as Director and Manager of the company was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control; · he failed to implement such a system; · that failure (or breach of duty) resulted in the delivery of a yacht with a defective keel; · the defective keel was the cause of the deaths. 30 The evidence in question goes to the second of these: the alleged failure to implement an adequate system. It might be argued that this, itself, is tendency evidence: that the Crown would put that because of a tendency on the part of Mr Cittadini to be negligent, as evidenced by the other defects, he was negligent in the construction of the keel. But that would, in my opinion, be fallacious reasoning. Juries are frequently asked to draw inferences from a number of pieces of evidence. A classic example occurs in every prosecution that depends upon circumstantial evidence. That is not tendency reasoning. 31 The position here is analogous: the jury will be asked to infer, from a collection of circumstances, that the system was inadequate and negligent. None of the instances of defective workmanship of itself would prove that the system was inadequate and negligent; in combination, they might. Neither together nor in combination do they prove any tendency on the part of Mr Cittadini to act in a particular way. The evidence goes to the correct characterisation of the system. 32 On the correct analysis of the Crown case there is no question of reasoning that Mr Cittadini was in breach of his duty in respect of the keel. His asserted breach of duty was in the implementation of the system of work. It may be that that is remote from the immediate cause of death, and that the Crown will find it difficult to in fact establish the necessary causal connection; but that is a question for the jury, and not for this Court. 33 In my opinion Sorby DCJ was in error in concluding that the evidence in dispute was tendency evidence. I would vacate the ruling. 34 The Crown also seeks an order from this Court that the evidence is admissible. It is inappropriate for this Court to make such a general ruling. There may be other reasons why the evidence is inadmissible. This Court has not seen the evidence in the form in which it will be tendered. It is only necessary for this Court to rule that the evidence is not inadmissible by reason of the application of s 97 of the Evidence Act. 35 The order I propose is that the ruling that the evidence in question was tendency evidence is vacated. 36 McCALLUM J: I have had the benefit of reading in draft the reasons of Simpson J. With great respect to her Honour, I have come to a different conclusion. 37 The issue is whether the evidence of other defects in the yacht was properly classified as tendency evidence, that is, whether it was adduced to prove the existence of some tendency on the part of the respondent to act or think in a particular way. If it was, the evidence attracts the contingent exclusionary rule in s 97 of the Evidence Act. 38 If it is tendency evidence but is also relevant for a non-tendency purpose, its use as tendency evidence is still constrained by the rule (see s 95) and the jury would have to be directed accordingly, in accordance with the trial judge's rulings under ss 97 and 101 of the Act. 39 As noted by Simpson J, the Crown proposes to put its case in two ways. The primary case is that the respondent was directly responsible for the cutting of the keel, on the basis that he either cut it himself or knew it had been cut. It is not suggested that the evidence of other defects is relevant to that issue. 40 The alternative Crown case is based on omission. However, I do not accept that the alternative case is captured in the allegation that the respondent was under a duty to implement a system in the construction of the yacht that incorporated proper supervision and quality control. 41 The alternative case was explained to the trial Judge in the following terms in written submissions: "The accused was negligent as he…failed to adequately supervise construction of the keel or failed to have proper systems and methods in place to ensure proper construction of the keel in accordance with the design." 42 The written submissions before the trial Judge disclose that those are separate particulars of negligent omission. In other words, the case based on omission is that the respondent failed adequately to supervise construction of the keel and, separately, that he failed to have proper monitoring systems in place to ensure its proper construction in accordance with the design. 43 There was a subtle shift in emphasis in the explanation of the alternative case in this Court. The Crown's written submissions on the appeal expressed the issue in the following terms: "whether [the respondent] was responsible for failing to ensure that there was adequate monitoring and quality control in relation to the construction." 44 The submissions made to this Court characterised that issue by reference to the absence of "a proper system" of quality control applicable to the whole of the works, rather than "systems and methods" to ensure proper construction of the keel in accordance with the design. 45 The Crown submitted that the evidence is part of a circumstantial case as to the absence of such a system, rather than tendency evidence. The characterisation of evidence as circumstantial or tendency is not, of course, a binary classification. In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, Sackville J expressed the view at [57] that any evidence to which s 97(1) applies is likely to be circumstantial evidence. His Honour referred to the judgment of Gummow J in Re D F Lyons Pty Ltd v Commonwealth Bank [1991] FCA 74 which described tendency evidence as "circumstantial evidence of a dangerous kind, particularly in a criminal case, because of the prejudice it engenders". The fact that the evidence is part of a circumstantial case is not the end of the inquiry. 46 The Crown submitted that the trial Judge appeared to have misconceived the case as being based on negligence in respect of the construction of the yacht generally to support an inference of negligence in relation to the keel. The misconception was said to lie in the fact that the Crown's alternative case is not concerned with negligence in the construction but negligence in the supervision of the construction. 47 That assumes there is a relevant conceptual difference between construction and supervision. The logic of the submission is that, whereas it appears to be accepted that each stage of construction of the yacht was carried out by separate acts or conduct, supervision could only occur under a system that would apply in respect of the entire construction process. It is only on the assumed premise that the content of the respondent's duty was to implement such a system that the presence of defects in work undertaken separately from the construction of the keel could rationally affect the assessment of the adequacy of the supervision of the construction of the keel (without tendency reasoning). 48 In my view, that logic is unsound. For my part, I can see no relevant distinction between the construction of the yacht and the supervision of its construction. Once it is accepted that negligence in respect of the construction of the yacht generally could only support an inference of negligence in relation to the keel by a process of tendency reasoning, in my view the same may be said in respect of supervision. 49 It is clear that the Crown case is not confined to the narrow proposition that the only duty owed (and breached) was a duty to put in place a proper system of quality control for the construction of the yacht. The implementation of a proper system is not synonymous with supervision. The case raises, separately, the issue whether the respondent adequately supervised the construction of the keel and, perhaps as a subsidiary issue, whether he put adequate systems in place specifically in respect of the keel, to ensure its proper construction in accordance with the design. 50 It could hardly be thought that the Crown would abandon the opportunity to put the case in that broader way. The evidence (or, if there is to be no evidence on that issue, the jury's view) as to the standard of care required of a reasonable person might not suit the narrow case. The accepted position might be, for example, that reliance on a system would have encouraged complacency or that the appropriate approach was to provide direct and differential supervision of each separate aspect of the works. 51 Once the breadth of the Crown case (as it has been expressed in the trial) is recognised, it is clear that there is more than one way to analyse the facts in issue to which the evidence of other defects may be relevant. An issue may arise as to whether the respondent failed to implement a proper system of construction, but the case he has to meet is more comprehensive. 52 If the fact in issue were confined to the existence of a proper system of construction, I would agree with Simpson J that no tendency reasoning would be involved. Mr Odgers, who appeared for the respondent, submitted that the evidence of defects in other parts of the yacht could not establish a system or business practice of never checking the quality of welding in yachts built in the factory without tendency reasoning, that is, in the absence of an assumption that the respondent had a tendency to fail to check welding or to have it checked. He relied on the decision of Sackville J in Jacara at [67]. That decision provides a helpful analysis of the issue but its application to this case must be approached with care. Jacara raised the issue whether several acts (representations made on other occasions) could be relied on to establish the existence of a system or business practice without resort to tendency reasoning. In the present case, the evidence is relied on to establish the absence of a system. The Crown does not assert the existence of a system of never checking, but the absence of a proper system of checking. 53 In my view, however, the primary fact in issue is whether the respondent was negligent in his supervision of the construction of the keel. That is the omission most directly concerned with the act causing death. Evidence of other defects could only be relevant to that issue by a process of tendency reasoning. The defects in the hull and the rudder-housing say nothing on the subject of the respondent's supervision of the construction of the keel, except by a process of reasoning that the respondent failed adequately to supervise their construction, rendering it more likely that he was negligent in his supervision of the construction of the keel. 54 As to whether the respondent had adequate systems and methods in place to ensure proper construction of the keel in accordance with the design, the same reasoning applies. The defects in the hull and the rudder-housing would be relied on to support an inference that the respondent failed to implement proper systems and methods in respect of their construction. A necessary link in the reasoning would be that he must have a tendency to such failure, and similarly have failed to have proper systems and methods in place to ensure that the keel was constructed in accordance with the design. 55 The result is that, in my view, the evidence was properly characterised as tendency evidence. On the case as it was explained in the appeal, it may also be relevant for a non-tendency purpose (to support an inference as to the absence of a system of construction of the yacht that included proper monitoring). On that analysis, the trial Judge would face the unhappy task of giving directions to the jury as to the processes of reasoning in which they might permissibly engage. 56 The complexity in this appeal of the task of isolating the facts in issue confirms the importance of a Crown case statement, particularly on a charge of manslaughter involving an allegation of criminal negligence by omission. In my view, fairness requires that a person accused of such an offence should ordinarily have particulars of the omissions relied on well in advance of the trial. 57 For those reasons I am of the view that the ruling of the trial Judge, on the material before his Honour, was correct. 58 Since mine is a dissenting view on that issue and having regard to the nature of this appeal, it is not necessary for me to consider the alternative ground raised by the Crown as to the correctness of his Honour's application of ss 97 and 101 of the Act. **********

R v Alexander CITTADINI

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