Citation: R v Adrian Presland [2009] NSWDC 71
Court: District Court of New South Wales
Date: 18 March 2009
Judge(s): Norrish QC DCJ
Background
The accused faced four counts of manslaughter by criminal negligence arising from the capsize of the yacht Excalibur off Seal Rocks on the NSW mid-north coast on 16 September 2002. Four of the six crew members died. The prosecution alleged that a flawed keel caused the capsize, and that the accused was responsible for fabricating and constructing that keel before it was sent for further assembly.
The Crown's case was circumstantial. The prosecution alleged the accused had made a horizontal cut in the keel during its construction, creating a structural weakness that ultimately caused the vessel to capsize in open ocean conditions. Before the close of the Crown case, defence counsel applied for a verdict by direction, arguing the prosecution evidence was legally insufficient to sustain a guilty verdict.
The application narrowed during argument to the question of the accused's liability as a principal in the first degree. The prosecution no longer pressed the issue of accessorial liability, which had been raised at the start of the trial.
Legal Issues
- Whether the Crown evidence was capable of establishing the foreseeability element required for manslaughter by criminal negligence, specifically whether a reasonable person in the accused's position could have foreseen that a catastrophic keel failure carried a high risk of death or grievous bodily harm.
- Whether there was any evidence capable of establishing that the accused was the person who made the horizontal cut in the keel that caused the structural failure.
- What legal test applies when a defendant applies for a verdict by direction in a jury trial.
Decision
His Honour outlined the applicable test for a verdict by direction, drawing on R v R (1998) 18 NSWLR 74 and the High Court's decision in Doney v The Queen (1990) 171 CLR 27. The test is whether there is evidence, even if tenuous, inherently weak, or vague, upon which a reasonable jury properly directed could convict. A judge may only direct an acquittal where the evidence, taken at its highest, cannot sustain a guilty verdict.
On the identity issue (whether the accused made the horizontal cut), the defence submitted that the Crown's case reduced to nothing more than the proposition that because someone cut the keel and the accused had been involved in its construction, he must have been responsible. His Honour rejected that characterisation. The expert metallurgical evidence, combined with the accused's established role in fabricating the keel skins, meant the Crown's case was not so bare. The absence of direct evidence did not equate to the absence of any evidence.
On foreseeability, His Honour found it was not unreasonable to conclude that a reasonable person in the accused's position, knowing the yacht was to be used for ocean sailing, would have foreseen that a catastrophic keel failure in open ocean could cause death or really serious bodily harm. His Honour acknowledged this might not be the only, or even the most likely, inference available, but held that weighing competing inferences is quintessentially a jury function.
His Honour declined to direct a verdict of acquittal on either ground, finding the evidence on both issues was sufficient to go to the jury.
Orders Made
The application for a verdict by direction was declined.
Key Takeaways
- The District Court confirmed that the governing test for a verdict by direction requires a judge to assess whether any evidence exists, even if tenuous or weak, upon which a properly directed jury could lawfully convict. A judge cannot withdraw a case from the jury merely because the evidence is thin or competing inferences are available.
- A circumstantial case is not defeated at the no-case stage simply because an inference of guilt is not the only rational inference available. The adequacy and weight of competing inferences remain matters for the jury, not the trial judge.
- Where the accused's arguments against a directed acquittal are, in substance, arguments against drawing the inference the Crown seeks, that points toward the issue being a jury question rather than a matter of legal insufficiency.
- Foreseeability in criminal negligence manslaughter does not require proof that the accused actually foresaw the relevant risk, but that a reasonable person in the accused's particular position and with the accused's attributes would have foreseen it.
- The absence of direct evidence does not, by itself, establish that there is no evidence capable of supporting a conviction. Circumstantial evidence meeting the Doney threshold is sufficient to require the matter to be left with the jury.
Legislation and Cases Referenced
Cases:
- R v R (1998) 18 NSWLR 74
- Doney v The Queen (1990) 171 CLR 27
- R v Rivkin [2005] NSWCCA 7
- Lavender v The Queen (2005) 222 CLR 67
- R v Tak Tak (1996) 14 NSWLR 226
- R v JMR (1991) 57 ACR 39
- R v Haas (1986) 22 ACR 299
- R v Crooks and Hudson (1944) 44 SR (NSW) 398
Legislation: No specific legislation was cited in the judgment.