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Court of Criminal Appeal 9 December 2010

Cittadini v R

[2010] NSWCCA 291

Homicide
CRIMINAL LAW COSTS APPLICATION DEALT WITH ON THE PAPERS CONVICTION APPEAL UPHELD

Citation: Cittadini v R [2010] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judge(s): McClellan CJ at CL, Fullerton J, Schmidt J

Background

The applicant was the Managing Director of a Victorian engineering company that manufactured the keel for a yacht called "Excalibur." In September 2002, the keel failed at sea, causing the yacht to capsize and killing several crew members. The keel had been cut horizontally through its full width and then welded back together during manufacture, a structural defect that was not in dispute.

A coronial inquest was held in 2005. The prosecution then filed an ex officio indictment in the District Court in January 2008, charging the applicant with four counts of manslaughter by criminal negligence. A co-accused was acquitted by the jury at trial.

In December 2009, the Court of Criminal Appeal quashed all four of the applicant's convictions and directed verdicts of acquittal. The applicant then brought a separate application seeking a costs certificate under the Costs in Criminal Cases Act 1967, arguing it had not been reasonable to institute the proceedings in the first place.

  • Whether the applicant had discharged the onus of establishing that it would not have been reasonable to institute the manslaughter proceedings, had the prosecution been in possession of all relevant facts before doing so (the test under s 3(1) of the Costs in Criminal Cases Act 1967)
  • Whether any act or omission by the applicant contributed to the institution of the proceedings in a way that was unreasonable
  • Whether the residual discretion under s 2 of the Act should be exercised to grant the certificate

Decision

Fullerton J (with whom McClellan CJ at CL and Schmidt J agreed) analysed the Crown's case both as run at trial and as supplemented by additional material the Crown relied on in resisting the costs application. The Crown's primary case rested on establishing that the applicant knew the keel had been constructed with a structural defect and that the yacht had been delivered in that state. The Court found there was no reasonable basis to have instituted proceedings on this primary basis: the evidence of the applicant's knowledge was insufficient, and this deficiency had been central to the Court's earlier decision to direct acquittals.

The Crown also advanced an alternate case based on the applicant's failure to implement a safe system of work at the manufacturing premises. Fullerton J accepted that this alternate basis was not entirely without foundation, but found the necessary causal connection between that alleged omission and the deaths of the sailors was weak. Proof of the causal link depended on a range of variables and theoretical approaches that, taken together, did not constitute a sufficient body of relevant facts to satisfy the reasonableness test under s 3(1).

The Court also noted that a key Crown witness, Mr Elliott, did not give evidence at trial consistent with his earlier statement or his inquest evidence on material matters, and the Crown did not seek leave to cross-examine him on those prior inconsistencies. The prosecution's reliance at the costs hearing on evidence excluded at trial or not elicited from witnesses did not, in the Court's view, remedy the fundamental weaknesses in the case that existed before proceedings were instituted.

Having found the proceedings should not reasonably have been instituted, and after considering the residual discretion, the Court granted the costs certificate.

Orders Made

  • Certificate for costs granted.

Key Takeaways

  • Under s 3(1) of the Costs in Criminal Cases Act 1967, the applicant bears the onus of showing on an objective analysis that it would not have been reasonable to institute proceedings had the prosecution possessed all relevant facts at the outset.
  • A successful conviction appeal does not automatically establish that the prosecution was unreasonable for costs purposes; the two questions are related but distinct.
  • Where the prosecution's primary case suffers from a demonstrable deficit of proof on a central element (here, the accused's knowledge of the defect), and the alternate case rests on weak causal connections dependent on numerous variables, those combined weaknesses can satisfy the costs test.
  • The existence of a prima facie case is not necessarily sufficient to make prosecution reasonable, particularly where contradictory evidence exists and a proper evaluation of the evidence would have exposed significant weaknesses before charges were laid.
  • The Court of Criminal Appeal retained and exercised its residual discretion under s 2 of the Act to grant the certificate once it was satisfied the s 3(1) test had been met.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 38

Cases
- Cittadini v R; R v Cittadini [2009] NSWCCA 302
- R v Cittadini [2008] NSWCCA 256
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- R v Manley [2000] NSWCCA 196; 49 NSWLR 203
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- R v C [2009] NSWCCA 81