New South Wales District Court CITATION: R v Adrian PRESLAND [2009] NSWDC 71 HEARING DATE(S): 16/03/09, 17/03/09 JUDGMENT DATE: 18 March 2009 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: Application for a verdict by direction declined. CATCHWORDS: Criminal Law - verdict by direction R v R (1998) 18 NSWLR 74 Doney v The Queen (1990) 171 CLR 27 R v Rivkin [2005] NSWCCA 7 CASES CITED: 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 PARTIES: Regina Adrian Presland FILE NUMBER(S): 2008/0001007 Mr Barrett - Crown COUNSEL: Mr P Gray SC - Offender with Mr Messer SOLICITORS: NSW DPP Alpass & Associates JUDGMENT On no case to answer; see transcript p 1230 1 HIS HONOUR: Adrian Presland, the accused, is on trial in respect of four counts of manslaughter particularised in the indictment presented at the commencement of this trial. These charges arise from the capsize of a yacht 'Excalibur' off the coast of New South Wales, near Seal Rocks on the mid north coast, on 16 September 2002. Four of the six crew died as a consequence. 2 Although the prosecution case is not closed, there being no further evidence to be called in the Crown case against Mr Presland, application was made on Monday and early Tuesday, 16 and 17 March 2009, for a verdict by direction on the basis that the Crown case is not capable of establishing the essential ingredients of the offences charged against the accused. 3 The test for directing a verdict of not guilty on the basis advanced by the accused through his learned senior counsel Mr Gray is set out in decisions such as R v R (1998) 18 NSWLR 74 (particularly at 77B and following where Gleeson CJ discusses the implications of such power) and in the High Court judgment of Doney v The Queen (1990) 171 CLR 27 (per curiam at 214-215). These tests, perhaps differently formulated in expression, were applied in R v Rivkin [2005] NSWCCA 7 at [165]. 4 Although the application proceeded in relation to two bases upon which it was anticipated the prosecution case was conducted, the application narrowed to consideration of the issue of Mr Presland's potential liability as a principal in the first degree and to matters concerning evidence or lack of evidence on that point. The prosecution in the course of submissions, referring to the detail of the accused's counsel's written submissions, no longer presses the issue of "accessorial liability" which was discussed at the commencement of the trial. 5 The charges brought against the accused are charges of manslaughter by reason of criminal negligence. The application advanced on behalf of the accused, if I understood it correctly, proceeded primarily on the basis that there was no evidence of the relevant foreseeability required to be proved of the risk of death or really serious bodily harm by a reasonable person in the position of the accused. 6 As I apprehend the Crown's submissions, the understanding of the accused as to the basis of the case brought against him for manslaughter in this respect is not disputed and the principles arising discussed in cases such as Lavender v The Queen (2005) 220 CLR 67 and R v Tak Tak (1996) 14 NSWLR 226. 7 It is submitted for the accused, in relation to this aspect of the matter, that in the context of what the prosecution must prove and the particulars that have been supplied to the accused of the case against him, there is no evidence that a reasonable person in the position of the accused could have any knowledge or appreciation whatsoever of the function of the keel, the possibility or likely consequences of the failure of the keel and/or whether there is a high risk that death or really serious bodily harm would follow such a failure. 8 The features of the matter from the perspective of the accused are set out in para 19 of the submissions which I will come back to shortly. This aspect of the application concludes by the assertion that: "There is no evidence capable of establishing one of the admittedly essential ingredients of the Crown case against Mr Presland, namely the foreseeability to a reasonable person having Presland's attributes and experience of the 'catastrophic' consequences of failure of the keel or that they carried with them a high risk of death or grievous bodily harm". 9 It is further submitted on behalf of the accused that there is a second basis for directing an acquittal. It is submitted that there is no evidence, upon which the accused could be convicted, which is capable of establishing that the accused was the person that acted or failed to act as particularised and particularly cut the keel horizontally such as to cause the flaw in the keel that directly contributed to the capsize of the 'Excalibur' and thus the deaths of the four deceased, the subject of the charges. 10 In relation to this aspect of the matter it is pointed out in the written submissions, as the case is a circumstantial evidence case, that in order to secure a verdict by direction the accused must do more than establish that an inference of guilt is not the only one available and/or that other inferences inconsistent with guilt have not been excluded. A judge cannot direct a verdict of acquittal if there is evidence upon which a reasonable jury could find the accused guilty, even though one or more reasonable hypotheses consistent with innocence can be formulated. It is for the jury to consider the significance of the latter and that submission is underpinned in JMR (1991) 57 ACR 39 (particularly at 43-45 per Lee CJ at CL) and Haas (1986) 22 ACR 299 (at 304). In my view those principles are undoubtedly correct. 11 In the course of this aspect of the matter reference is made to the submissions that a "faint scintilla" of evidence is not sufficient to establish a case to answer, citing observations of Jordan CJ in R v Crooks and Hudson (1944) 44 SR (NSW) 398. 12 It is submitted in this matter that this is a case where there is simply not "any evidence upon which reasonable men or women could find a verdict of guilty". 13 Just in passing, in relation to the observations of the late Chief Justice Jordan, it should be pointed out that the tests, if I might use that expression, differently expressed in R v R and Doney v The Queen are as follows. Gleeson CJ in R v R said that a judge should only direct an acquittal if he concludes there is "no evidence upon which a jury properly directed could properly convict". This could be expressed by saying that "the question is whether there is evidence on which the accused could lawfully be convicted". 14 In Doney v The Queen the High Court said: "It follows that if there is evidence (even if tenuous of inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty." 15 There would appear from these authorities four slightly different formulations of the same general principle expressed from different perspectives. They seem to all apply at this point and certainly, in the context of submissions made by the accused as to the character of the evidence and the like, the observations that I have quoted from Doney seem most apposite. 16 The submissions on behalf of the accused include the proposition that, putting aside the question of the opportunity for other persons to have cut the keel which is a matter for the jury to consider of course, the Crown case has, it is said, a more "fundamental" problem on the basis that the particulars provided to the accused as to the character of its case: "Reduces to little more than the simplistic proposition that since someone cut the keel and since Presland was involved with the construction of the keel, that someone must have been him. That conclusion or inference just does not follow". The written submissions go on to say: "It is not merely that it is only one of the number of possible inferences that might be rationally capable of being drawn, that would be a matter for the jury rather, it is not a rational inference at all". Other comments are made in para 29 of the submissions. 17 The problem with the submission is that the "conclusion or inference" referred to in para 28 does "not necessarily" follow, not that "inevitably" it does not follow. The Crown case is not fundamentally reduced solely to what is summarised above. In the context of the fact that Mr Presland was the person who had fabricated and constructed the keel before it was sent off to have the bulb attached there is a need for consideration of the evidence of the opinions of, for example, Mr Gray and Mr Burns, the metallurgists, as to the character of the horizontal cut, its relationship to alterations made to the ram compartment and particularly the cover plate, the relationship of the horizontal cut to the leading edge pole and the order in which various events would have occurred. This is a very brief analysis, if I could call it that, of the evidence. I am of course excluding what appears to be conceded in the case that the so-called box which was placed on what I loosely call "the top" of the keel must have been placed after the transverse or horizontal cut. The prosecution says that the inference available given the evidence of the stages of construction, is that Mr Presland made that horizontal cut which led to the welding of the skins of the keel together and hence the fundamental defect in the construction that led to the sinking of the boat. 18 I appreciate in relation to this aspect of the matter, by reference to the submissions and any reasonable assessment of the evidence, that there are a wide range of reasonable possibilities or hypotheses inconsistent with guilt in this trial. I do not propose to go through them. The parties will do that no doubt for one or other purposes during the course of the trial. There are possibilities conceded by Mr Gray, for example, as to the circumstances of the making of the horizontal cut and its relationship to the leading edge pole arising out of opinions of Associate Professor Yeomans. I bear in mind, of course, in making this judgment I can have no regard to Professor Yeomans' evidence. 19 I note evidence relating to the difference in the quality of welds that are said to be clearly made by Mr Presland as opposed to welds in dispute and what might be drawn from that. I also bear in mind matters arising from the evidence such as the qualities and qualifications of Mr Presland as a welder and the evidence of his denials when interviewed relatively shortly after the event in circumstances where he may have exercised his right to silence. Also there is evidence of his good character, his industry and his finer qualities, as they are relevant to an assessment of the credibility of his denial of guilt and as to the likelihood of him acting as the Crown has identified. 20 I understand ultimately that the claim made is one on analysis that the Crown case against Mr Presland is weak, notwithstanding what are said to be strengths arising out of the opinions of Mr Gray in particular. I understand that it may be said on behalf of Mr Presland that a reasonable doubt may be an inevitable consequence from all this material. But in the context of the tests set out in R v R and particularly in Doney, ultimately it is my view that on this basis there is evidence which can be taken into account by the jury in its deliberations that is capable of supporting a verdict on this point and, most importantly, as the jury is the constitutional tribunal of fact it must be left to the jury for its ultimate decision. There is no "defect in the evidence" on this matter which taken at its highest is such that the evidence could not sustain a verdict of guilty. 21 Dealing with the primary matter advanced on behalf of the accused Mr Presland, those submissions summarised are these: there is no evidence that Mr Presland had built a keel before and there is no evidence that Mr Presland had any familiarity or experience with yachts or sailing or keels. There is no evidence that Mr Presland knew anything or that anyone told him anything about the role of the importance of a keel in a yacht. There is no evidence that people generally in the community at large would realise the function and essential role of a keel in the safe passage of a yacht, et cetera. There is no evidence that either Mr Presland, or a reasonable person in his position, might have realised that to cut the keel across horizontally might be a problem in light of other circumstances therein outlined. 22 In relation to this aspect of the matter I am assisted by the learned Crown's submissions where seriatim he seeks to address the matters raised in the submissions of Mr Gray SC on behalf of his client, citing amongst other things statements made by the accused in the course of an interview with police which might suggest, vis a vis, issues of his knowledge of the function of the keel, the significance of alterations to the keel as he manufactured it. 23 The difficulty with the analysis undertaken by Mr Gray SC is that, firstly, it may be said that there is no direct evidence of a number or even all of the matters to which he identified. However, in relation to the issue of "foreseeability", as it is understood in the case of manslaughter by criminal negligence, the Crown case is one which requires the drawing of an inference from a body of circumstances. It is not incumbent upon the Crown in order to justify the inference, that there be direct evidence of the matters particularised. Of course, the matters particularised have to be seen in the very real context of matters of which there is considerable direct evidence. That includes consideration that Mr Presland was the person who constructed the keel, the order in which events occurred culminating in the horizontal cut, particularly bearing in mind that Mr Presland's role in the fabrication of the keel, as I understand the way case has been conducted by both parties, continued after the horizontal cut. The fact that the accused was a long time employee of a factory that had an involvement in the construction of yachts from time to time and that, as I understand the Crown case as it touches upon Mr Presland, Mr Cittadini was the Managing Director of the corporation, was responsible for the supervision of the construction of the keel, which must have included to whatever extent supervision of the fabrication of it by Mr Presland. Mr Cittadini was an experienced sailor who had a personal interest in the construction of the yacht for commercial purposes and was himself a yacht owner who had previously constructed yachts in the premises. Mr Presland must have had considerable work related contact with him. 24 Ultimately, it seems to me that it could not be said that there is absolutely no prospect of an inference being drawn by the jury of the accused's knowledge of the significance of a keel in a yacht and the significance of, for example, alterations to the keel, so far as its structural integrity was concerned. In that context I bear in mind the expert evidence about the purpose of welds, the deficiencies particularly in one of the welds on the skins leading inevitably to the shearing away of the fin, and, of course, evidence that seemed to suggest, although this point seemed to be disavowed at least by Mr Cittadini's counsel at the commencement of the trial, that a properly implemented weld ought theoretically to have left the skins in the same state of strength as they were when they were in fact each one sheet. This is in the context of the Crown case being that the accused fabricated the skins. In all the circumstances if there be evidence of the accused's involvement in the manufacture of the keel and there be circumstances that may point to he having made the horizontal cut in the manner in which I have described, it may be open to the Crown to draw the inference that it would seek to draw in relation to this issue of foreseeability. 25 It is not unreasonable to conclude from my perspective that a reasonable person in the position of the accused knew that this yacht was going to be used for ocean sailing. I do not believe it is unreasonable therefore to conclude that a reasonable person in the place of the accused in all the circumstances of the case would have not foreseen a catastrophic failure of the keel could cause death or really serious bodily harm if that occurred when the boat was in the open ocean. 26 Of course in the jury's analysis of these matters such a conclusion as sought to be drawn by the Crown, may not be the only conclusion, it may be even the less likely conclusion. But in the context of the principles as I have outlined these are matters for the jury. 27 Of course I bear in mind with regard to what Mr Gray SC has put, that a jury will need to be warned against speculation in relation to the drawing of inferences. It will need to be warned about filling gaps in the evidence such as they may be identified, about drawing irrational inferences, about ultimately having to conclude, for example, in relation to this aspect, that the inference to be drawn is the only inference that can be drawn. But these are quintessentially jury tasks. 28 With no disrespect to Mr Gray, and his very careful and considered submissions, he analysis of this aspect of the no case to answer by him, is one that leads to the conclusion that the points he made are essentially a series of arguments for not drawing the inference required by the Crown. The fact that there is no direct evidence does not of course equate to the fact that there is no evidence. 29 In any event, ultimately again in relation to this second aspect, I am of the view, in the context of the tests in Doney and R v R, that I could not direct an acquittal and I decline so to do. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.