Citation: R v Alexander Cittadini [2008] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 5 November 2008
Judge(s): McClellan CJ at CL; Simpson J; McCallum J
Background
The respondent was charged with four counts of manslaughter by criminal negligence arising from the deaths of four crew members aboard a yacht called The Excalibur. The yacht capsized at Port Stephens in September 2002 after a lead weight fell from a defectively constructed keel. The respondent was the director and manager of the company that built the vessel.
The Crown proposed to run its case in two alternative ways. The primary case was that the respondent either participated in, or knew about, the defective cutting and welding of the keel. The alternative case was that, as director and manager, he failed to implement any adequate supervision or quality control processes, and that such processes would have detected the keel defect before the yacht was delivered.
In support of the alternative case, the Crown sought to adduce evidence of other construction defects in the yacht, including defective aluminium welding in the hull and problems in the rudder housing area. The trial judge, Sorby DCJ, ruled that this evidence was tendency evidence under s 97 of the Evidence Act 1995 and, with limited exception, excluded it for insufficient probative value. The Crown appealed that ruling under s 5F(3A) of the Criminal Appeal Act 1912.
Legal Issues
- Whether evidence of construction defects other than the keel defect constituted tendency evidence under s 97 of the Evidence Act 1995, or was instead direct evidence of a fact in issue.
- If the evidence was tendency evidence, whether the trial judge correctly applied ss 97 and 101 in excluding it.
- Whether the exclusion of the evidence eliminated or substantially weakened the prosecution case, satisfying the jurisdictional threshold under s 5F(3A) of the Criminal Appeal Act 1912.
Decision
The majority (McClellan CJ at CL and Simpson J) allowed the appeal in part, vacating the trial judge's ruling that the evidence was tendency evidence. The majority accepted the Crown's submission that, in the context of the alternative negligence case, evidence of the other construction defects was direct evidence going to facts in issue. Specifically, the evidence was relevant to whether the respondent had any adequate system of supervision or quality control in place during the construction of the yacht, rather than being adduced merely to establish a tendency to act carelessly.
The majority drew on the principle, articulated in the judgment, that the key to characterising evidence as tendency evidence lies in identifying the purpose for which it is tendered. Where evidence is tendered to show the existence or absence of a supervising system or process, rather than to prove a character-based tendency to act in a certain way, it does not fall within the tendency rule. The other defects, on this analysis, were capable of directly supporting an inference about the overall state of the respondent's quality control regime.
McCallum J dissented. Her Honour took the view that the primary fact in issue under the alternative case was whether the respondent was negligent in his supervision of the keel construction specifically. On that analysis, the evidence of defects in the hull and rudder housing could only become relevant through a process of tendency reasoning: that the respondent failed to supervise those elements, making it more likely he was also negligent in supervising the keel. McCallum J also observed that the complexity of the issues underscored the importance of the Crown providing a formal case statement in manslaughter prosecutions involving allegations of criminal negligence by omission.
Orders Made
- By majority, the ruling that the evidence in question was tendency evidence is vacated.
Key Takeaways
- Evidence of multiple construction defects in a criminal negligence prosecution may constitute direct evidence of a fact in issue (absence of an adequate supervisory system) rather than tendency evidence, depending on the purpose for which it is tendered.
- Under s 97 of the Evidence Act 1995, the characterisation of evidence as tendency evidence turns on the purpose for which it is adduced. Evidence is not tendency evidence merely because it involves prior conduct if it directly establishes or negates a disputed fact.
- A conviction for manslaughter by criminal negligence requires proof of a very high degree of negligence, going beyond a civil wrong, and where omission is alleged, the Crown must prove the accused owed and breached a personal legal duty to the deceased to a degree that could be characterised as "wicked" negligence.
- Under s 5F(3A) of the Criminal Appeal Act 1912, the Crown must clear a jurisdictional threshold by demonstrating that the exclusion of the evidence eliminates or substantially weakens the prosecution case before such an appeal can proceed.
- McCallum J's dissent highlights that, in manslaughter prosecutions founded on an alleged omission involving criminal negligence, the precise identification of the omission relied upon is critical to determining whether other-conduct evidence is direct or tendency in nature. Her Honour noted that fairness ordinarily requires the Crown to provide particulars of the alleged omissions well in advance of trial.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 97, 101
Cases
- Nydam v R [1977] VR 430
- The Queen v Lavender [2005] HCA 37; 222 CLR 67
- Andrews v DPP [1937] AC 576
- R v Adomako [1995] 1 AC 171
- R v Taktak (1988) 14 NSWLR 226
- Gardiner v R [2006] NSWCCA 190
- Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
- Re D F Lyons Pty Ltd v Commonwealth Bank [1991] FCA 74