R v Ceniccola - [2010] NSWSC 1554

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Ceniccola [2010] NSWSC 1554

JURISDICTION:

FILE NUMBER(S):
2009/128943

HEARING DATE(S):
22 November 2010 to 13 December 2010

JUDGMENT DATE:
3 December 2010

PARTIES:
Regina
Alfonso Ceniccola

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
E A Wilkins SC (Crown)
G A Brady (Accused)

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Nyman Gibson Stewart (Accused)

CATCHWORDS:
EVIDENCE – admissibility and relevance – tendency – accused sought to adduce statement of a neighbour as evidence of good character and to establish a tendency to act in a particular way – Crown objected as evidence not significantly probative – statement admissible

LEGISLATION CITED:
Evidence Act 1995

CATEGORY:
Procedural and other rulings

CASES CITED:
Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353
AW v The Queen [2009] NSWCCA 1
R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim R 457
R v Osman [1998] NSWSC 13
R v Zhang [2005] NSWCCA 437; (2005) A Crim R 504

TEXTS CITED:

DECISION:
With the exception of the paragraphs referred to in the judgment the statement of Mr Burke is otherwise admissible.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HARRISON J
3 December 2010
2009/128943 R v Alfonso CENICCOLA
JUDGMENT

HIS HONOUR: The accused has indicated that he wishes to tender the statement of Mr Cliff Burke. Mr Burke is a neighbour of the accused and refers in the statement to having constructed a fence in association with the accused along a boundary separating their respective properties. There was some disagreement between the accused and Mr Burke that was ultimately resolved amicably. The accused proposes to rely upon the statement for two purposes. First, as evidence of the accused's good character and secondly, because it is evidence that establishes, or assists in the proof of, a tendency on the part of the accused to resolve fencing disputes with neighbours in a proper manner. It is part of the Crown case that the accused killed the deceased with a single shot from a shotgun after a dispute between the accused and the deceased over construction of a fence along the boundary between their properties that went to the local Land Board and about which the accused is said to have ruminated for some time leading up to the death of the deceased.
Mr Burke is unwell and it is accepted that he will remain unable to attend Court for the purpose of giving evidence before the jury or of being cross-examined. He is not available to give evidence about an asserted fact within the meaning of that expression in s 63 of the Evidence Act 1995. The Crown opposes the tender of his statement upon the basis that it is irrelevant to the establishment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ceniccola

Details

AGLC: R v Ceniccola [2010] NSWSC 1554
Case: [2010] NSWSC 1554
Decision Date: 3 December 2010

CaseChat Overview and Summary

The case of R v Ceniccola was heard by the Supreme Court of South Australia. The defendant, Ceniccola, was on trial for a criminal offence and sought to adduce a statement from a neighbour as evidence of his good character and to establish a tendency to act in a particular way. The Crown objected to the admission of this evidence, arguing that it was not significantly probative of the defendant's character or his tendency to act in a particular way. The legal issue before the court was whether the statement was admissible under section 110 of the Evidence Act, which permits the defence in criminal proceedings to adduce evidence to prove the accused's good character, either generally or in a particular respect.

The court considered the provisions of section 110 of the Evidence Act and the rationale behind it, as explained by the ALRC. The court noted that section 110 permits the adducing of evidence of the accused's good character, including hearsay evidence, opinion evidence, and evidence of past conduct of the accused adduced to prove that he has or had a tendency to act in a particular way. The court also noted that the evidence must be relevant to the character of the accused and adduced for that purpose to be admissible under section 110. The court held that the statement from the neighbour was admissible as it was relevant to the defendant's good character and was adduced for that purpose.

The court's reasoning and outcome in this case are significant for criminal defendants who seek to adduce evidence of their good character. The court confirmed that section 110 of the Evidence Act permits the adducing of a wide range of evidence to prove the accused's good character, including hearsay evidence, opinion evidence, and evidence of past conduct. The court also emphasised that the evidence must be relevant to the character of the accused and adduced for that purpose to be admissible under section 110. This case provides guidance to criminal defendants and their legal representatives on the admissibility of evidence of good character in criminal proceedings.

No further orders were made in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 110 of the Act permits the defence in criminal proceedings to adduce evidence to prove the accused's good character, either generally or in a particular respect. If such evidence is admitted the Crown may adduce rebuttal evidence. Section 110(1) provides as follows:"110 Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2)…" The ALRC explained the rationale (ALRC 26, vol 1, para 802) behind the proposal on which this provision is based as follows:"There is a danger that the fact finder will wrongly estimate the probative value of evidence of the accused's good character. More importantly, it may decide the case simply on the basis that any crime he may have committed has been balanced by his previous good behaviour. But there are grounds of policy which may justify admission of evidence of good character if adduced by a criminal defendant. … If the legal system is to minimise the risk of wrongful conviction, it may be necessary to give the accused an absolute right to introduce evidence of his good character, subject to the relevance discretion… It is proposed that the accused may adduce evidence from witnesses about his reputation and that those witnesses may be asked to give evidence about the basis upon which they express their view as to his reputation." The fact that "the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply" to evidence adduced to prove the defendant's good character means that such evidence may include hearsay evidence (generally excluded under s 59), including evidence of the reputation of the accused, opinion evidence (generally excluded under s 76), including "lay" or "expert" opinion evidence regarding the accused and evidence of past conduct of the accused adduced to prove that he has or had a tendency (whether because of his character or otherwise) to act in a particular way, or to have a particular state of mind (generally excluded under s 97). In respect of "expert" opinion evidence it appears curiously that the normal rule requiring "specialised knowledge" under s 79 does not apply, since the opinion rule does not itself apply. However, the Court's discretionary powers may be utilised to achieve the same result. The evidence must be relevant to the character of the accused and adduced for that purpose to be admissible under s 110. In Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 at 359 the High Court said in relation to the common law position:"The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged… As Cockburn CJ said: "The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried'."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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