R v Alexander CITTADINI [2009] NSWDC 70

New South Wales District Court

CITATION: R v Alexander CITTADINI [2009] NSWDC 70

HEARING DATE(S): 12/03/09

JUDGMENT DATE: 17 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: Application to exclude evidence upheld.

CATCHWORDS: Criminal Law - admissibility of evidence - relevance - unfair prejudice - probative value - discretionary exclusion

LEGISLATION CITED: s55, s137 Evidence Act 1995

R v Cittadini [2008] NSWCCA 256 R v Ibrahim [2001] NSWCCA 72 R v Abdul-Razzak, Razzak & Razzak [2006] NSWCCA 195 R v GAC [2007] NSWCCA 315 CASES CITED: R v BD (1997) 94 A Crim R 131 R v GK (2001) 53 NSWLR 317 R v Sing-Bal (1997) 92 A Crim R 397 R v Yates [2002] NSWCCA 520 R v Haouni [2005] NSWCCA 209 R v Swaffield & Anor (1995) 192 CLR 159

PARTIES: Regina Alexander Cittadini

FILE NUMBER(S): 2008/00001008

Mr Barrett - Crown COUNSEL: Mr S Odgers SC - Offender Mr Priestley - Offender

SOLICITORS: Solicitor, Office of Public Prosecutions Mitchell Lawyers

JUDGMENT

Introduction

1 On 16 September 2002 the yacht 'Excalibur' sank approximately 20 miles off Seal Rocks, just north of Port Stephens, and four of the crew died. Alex Cittadini and Adrian Presland are currently on trial in respect of four counts of manslaughter arising from these deaths. The cause of the capsize was the shearing away of the bottom "half" of the keel fin (with the lead bulb attached) along a horizontal line where the starboard and port sides, or "skins", of the fin had been cut and then welded back together. The evidence in the trial is that the two sheets of stainless steel that comprised the 'skins' of the keel fin were not designed to be cut and that such cutting and welding was a fundamental defect in the construction of the yacht.