Citation: Cittadini v R; R v Cittadini [2009] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judge(s): McClellan CJ at CL, Fullerton J, Schmidt J
Background
The appellant was the Managing Director of a Victorian engineering company engaged to manufacture an ocean-going yacht called "Excalibur." During the manufacturing process, the yacht's keel was cut horizontally through its entire width and then welded back together, with the join subsequently polished to conceal any visible trace of the cut. On 16 September 2002, the keel failed at sea. The boat capsized and four crew members died.
The appellant and a company foreman, who had primary responsibility for building the keel, were charged with four counts of manslaughter by criminal negligence. The foreman was acquitted. The appellant was convicted by a majority verdict of the jury (eleven to one) following a trial in the District Court before Norrish DCJ.
The Crown ran its case on two alternative bases: first, that the appellant knew the keel had been cut and permitted the yacht to be supplied in that condition; and second, that the appellant failed to implement reasonable supervision and quality control measures during the manufacturing process. Both limbs were put entirely on circumstantial evidence. The appellant appealed against conviction, and both parties also filed sentence appeals.
Legal Issues
- Whether the majority jury verdict was unreasonable and could not be supported having regard to the evidence
- Whether the Crown Prosecutor's final address to the jury caused a miscarriage of justice
- Whether the trial judge erred in directing the jury on the "reasonable person" test as it applies to criminal negligence manslaughter
- Whether the trial judge erred by failing to direct the jury that they must be unanimous on one or the other of the two alternative bases on which the Crown put its case
Decision
The Court of Criminal Appeal upheld the appeal and quashed the convictions on the basis that the jury's verdict was unreasonable. McClellan CJ at CL (with whom Fullerton J and Schmidt J agreed) concluded that the evidence was insufficient to establish beyond reasonable doubt that the appellant either knew the keel had been cut or that his failure to implement supervisory and quality control systems amounted to criminal negligence.
On the Crown's primary case, no witness admitted to cutting the keel or to having knowledge that it had been cut. The circumstantial evidence was insufficient to establish that the appellant personally knew of the cut. The court found that, given the entirely circumstantial nature of the case and the considerable evidentiary gaps, a jury acting reasonably could not have been satisfied of guilt to the required standard.
On the alternative negligence case, the court examined what standard of care and supervision was reasonably required of the appellant in the circumstances of a bespoke manufacturing engagement. The court found the evidence did not establish that the absence of a particular supervisory or quality assurance system amounted to criminal negligence, which requires a very high departure from the standard of care expected of a reasonable person in the position of the accused. This is a significantly more demanding test than civil negligence.
On the question of jury unanimity, the court held that no direction requiring the jury to be unanimous on which alternative basis they accepted was necessary. Both alternatives arose from substantially the same factual matrix concerning the manufacturing process, and the two bases were different ways of inferring negligence from the same underlying evidence. The court rejected this ground of appeal, though it did not affect the ultimate outcome given the verdict was quashed on unreasonableness grounds. The sentence appeals were not addressed in light of the acquittals.
Orders Made
- Appeal upheld and the convictions quashed
- Verdicts of acquittal directed
Key Takeaways
- Criminal negligence manslaughter requires proof of a very substantial departure from the standard of care of a reasonable person in the accused's position, a materially higher threshold than civil negligence.
- A majority jury verdict may be set aside on appeal where the Court of Criminal Appeal is satisfied that, on the whole of the evidence, it was not open to the jury acting reasonably to be satisfied of guilt beyond reasonable doubt.
- Where a Crown case rests entirely on circumstantial evidence, gaps in the chain of inference can be fatal to the verdict's sustainability on appeal.
- A direction requiring jury unanimity on alternative bases of liability is not always necessary. Where both alternatives arise from the same factual matrix and represent different ways of inferring guilt from the same evidence, the general rule permitting different paths to a verdict may apply.
- Managing Director-level responsibility for a manufacturing process does not, without more, establish the kind of personal knowledge or systemic failure necessary to found criminal negligence liability for the acts of employees.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 55F (majority verdicts)
Cases
- Andrews v DPP [1937] 2 All ER 552
- R v Bateman [1925] All ER Rep 45
- R v Lavender (2005) 222 CLR 67
- R v Hillier [2007] HCA 13; 233 ALR 634
- M v R (1994) 181 CLR 487
- MFA v R (2002) 213 CLR 606
- KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
- R v Serratore (1999) 48 NSWLR 101
- R v Dally (2000) 115 A Crim R 582
- R v Spathis & Patsalis [2001] NSWCCA 476
- Causevic v R [2008] NSWCCA 238
- R v Klamo [2008] VSCA 75
- Royall v R (1991) 172 CLR 378
- Knight v The Queen (1992) 175 CLR 495
- Cornwell v R [2007] HCA 12; (2007) 234 ALR 51