New South Wales Court of Criminal Appeal CITATION: R v C [2009] NSWCCA 81 HEARING DATE(S): 20 March 2009 JUDGMENT DATE: 31 March 2009 JUDGMENT OF: Grove J at 1; Howie J at 15; Hall J at 16 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Interlocutory appeal by Crown - Rejection of evidence by trial judge - Finding that unfair prejudice outweighed probative value - No ground for appellate intervention shown LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995 CATEGORY: Procedural and other rulings CASES CITED : House v The King (1936) 55 CLR 449 PARTIES: Regina - Appellant C - Respondent FILE NUMBER(S): CCA 2008/1008010 COUNSEL: P Barrett - Appellant/Crown S Odgers SC with D Priestley - Respondent SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions Mitchell Lawyers - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/0001008 LOWER COURT JUDICIAL OFFICER: Norrish DCJ LOWER COURT DATE OF DECISION: 12 March 2009 IN THE COURT OF CRIMINAL APPEAL CCA 2008/1008010 GROVE J HOWIE J HALL J 31 March 2009 R v C Judgment 1 GROVE J: The trial of the respondent (and a co-accused not involved in the current issues) has been proceeding in the District Court before Norrish DCJ and a jury for over four weeks. It is understood that the closure of the Crown case is imminent. On Thursday 12 March his Honour ruled on objections to the tender by the Crown of evidence concerning three matters, in respect of two of which he upheld the objection and he overruled the objection in favour of admission in respect of a third. Later the Crown advised its desire to approach this Court pursuant to s 5F (3A) of the Criminal Appeal Act 1912 and a notice of appeal dated 18 March has been filed. The continued hearing of the trial was suspended for the Judge and jury to await the outcome of the appeal. The Court was convened on 20 March in response to the urgency which obviously had been created. 2 Thorough and focussed written submissions on behalf of the Crown and the respondent were supplied which enabled the appeal to be determined without further delay and the assistance received from counsel is acknowledged. The Court ordered that the appeal be dismissed. 3 The respondent has been indicted on four counts of manslaughter following the deaths by drowning of persons who were crewing the yacht Excalibur, which foundered off the coast near Port Stephens. The respondent was a director and the manager of the company which built the yacht. What was described as the primary case for the Crown was that the yacht capsized because its keel had, during manufacture, been horizontally cut and the pieces then welded together whereby the yacht was rendered unsafe for sailing. The Crown alleges that either the respondent made the cut or he delivered the yacht with knowledge of the cut and welding, in either case being criminally negligent. 4 The present appeal concerns evidence in support of what was described the Crown's alternative case. This can briefly be described as an allegation that the respondent failed to implement adequate supervision and quality control during the construction of the yacht leading to its being delivered by reason of the defect in the keel in a dangerous and unseaworthy state. 5 His Honour rejected evidence sought to be called from persons who had examined the hull some years after the capsize and, by radiography, detected defective welding of aluminium plates which were constituents of the hull. Defects were said to exist in some nineteen of twenty two weld plate sites which had been randomly selected. None of these defects was asserted to have been connected with the defect which caused the keel to fail. The intent of the Crown is to argue that the failure to avoid those defects in manufacture or to detect them when they had occurred, can be used by the jury to demonstrate the failure to implement adequate supervision and quality control, and thereby conclude that such omission led to the failure to avoid negligent activity in cutting and welding the keel or to detect that that had been done to it. I will refer to this material as the first body of evidence. 6 The second body of evidence, which his Honour ruled could be admitted, concerned other defective welding particularly in the area of the rudder housing which was said to be visually identifiable and about which evidence could be given by two welders who attended to some repair when the boat was berthed at Hamilton Island. At the time the boat was near new and it was only some four months old when the disaster near Port Stephens occurred. 7 The owner had contracted for the building of the yacht for the purposes of offshore racing. To be permitted to enter appropriate events the boat needed to comply with requirements set out in the "Blue Book" of the Australian Yachting Federation. As built, it was asserted that certain safety stanchions were inadequate in number and spaced too far apart (by a margin of about 0.1 metres) to comply with Blue Book Regulations. It was not the Crown case that there was manufacturing defect of the kind revealed by the welding shortcomings detected in the x-rays, but it was sought to rely upon the failure to achieve compliance with standards in the Blue Book as further evidence of omission to supervise and exercise quality control. This third body of evidence was also rejected. 8 When upholding the objection to the admission of the first and third bodies of evidence his Honour found that neither was relevant within the meaning of s 55 of the Evidence Act and it was therefore inadmissible pursuant to s 56. He also held that (necessarily assuming for the purpose that, contrary to his finding, the evidence had some degree of relevance) that its probative value was outweighed by the danger of unfair prejudice to the respondent and accordingly would be refused admission pursuant to s 137. 9 It is sufficient for present purposes to deal with the latter. Early in lengthy reasons which his Honour published on 17 March he had identified the risk in these terms (at page 11): "In this case, there is a real (the) danger that the jury may conclude that the accused is a 'sloppy boat builder' and, as a result, the evidence may be misused to 'sheet home' blame so to speak unfairly or improperly." 10 Although his Honour did not return to this particular expression, it clearly represents the antithesis of assumed probative value. Contrary to a Crown submission, it could not be that his Honour was weighing unfair prejudice against a finding that there was no probative value in the evidence, when he was expressing his findings relative to s 137. Plainly there was correctly directed attention to the possible issue when the ruling was made that the second body of evidence would be admitted and the danger of unfair prejudice avoided by appropriate direction. 11 It would seem obvious that multiplying the factors of identified shortcomings in workmanship would increase the chance that direction would not sufficiently avoid the danger that the evidence might be misused to impose blame on the basis of accumulating instances of generally "sloppy boat building". 12 As above noted, this trial has been in progress for over four weeks. It cannot be doubted that the presiding judge is in an advantaged position to assess the atmosphere of the trial, the apparent strengths and weaknesses of the contentions being advanced by the parties, and, most significantly, the nature and the extent of any risk of unfair prejudice and an estimate of whether it can be avoided by judicial direction. 13 Whilst the title of the part of the Evidence Act in which s 137 appears has been varied to include the expression "mandatory exclusions", the balancing required by that section has to be performed by the trial judge in the exercise of discretionary judgment. Intervention by this Court can only be attracted if it is shown that the trial judge's conclusion was wrong or that there has been a miscarriage of the type described in House v The King (1936) 55 CLR 449. 14 Miscarriage of discretion has not been shown nor has it been demonstrated that his Honour's conclusion in relation to the first and third bodies of evidence that there is conveyed a danger of unfair prejudice which outweighs probative value was wrong. For those reasons I joined in the order of the Court on 20 March 2009. 15 HOWIE J: For the reasons given by Grove J I joined in the order dismissing the appeal in this matter. 16 HALL J: I have read and agree with the reasons of Grove J and have nothing to add to them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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