R v Alexander CITTADINI

(2008) 189 A Crim R 492; [2008] NSWCCA 256

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Evidence
2. › Admissibility
3. › Tendency evidence
4. › Section 97 Evidence Act 1995 (NSW)
5. › Whether evidence of multiple construction defects constituted tendency evidence or circumstantial evidence of negligent system
6. › Distinction between tendency reasoning and circumstantial reasoning
1. Criminal Law
2. › Manslaughter
3. › Criminal negligence
4. › Negligence by omission
5. › Duty to implement adequate supervision and quality control systems
6. › Whether evidence of systemic defects admissible to prove negligent system
1. Appeal
2. › Interlocutory appeal by Crown
3. › Criminal Appeal Act 1912 (NSW), s 5F(3A)
4. › Appeal against exclusion of evidence
5. › Whether exclusion eliminates or substantially weakens prosecution case

Quick Take

Evidence of multiple instances of defective workmanship tendered to prove the absence of an adequate system of supervision and quality control is not tendency evidence under s 97 of the Evidence Act 1995, but circumstantial evidence going directly to the existence (or absence) of the system. The characterisation depends on the fact in issue: if the fact in issue is the adequacy of the system, the evidence goes directly to that fact; if the fact in issue is negligence on a specific occasion, the evidence may involve tendency reasoning. The distinction between these two characterisations was contested, with the dissent holding that the primary fact in issue was negligence in supervision of the specific construction (the keel), not the system generally.