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R v Cittadini

R v Cittadini

Case [2008] NSWCCA 256 5 November 2008

Appeal

Admissibility of Evidence

Interlocutory Orders

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Alexander CITTADINI [2008] NSWCCA 256

HEARING DATE(S): 30 October 2008 - 31 October 2008

JUDGMENT DATE:
5 November 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 36

DECISION: By majority:
Ruling that the evidence in question was tendency evidence is vacated.

CATCHWORDS: INTERLOCUTORY JUDGMENT - admissibility of evidence - whether tendency evidence - appeal by Crown against exclusion of evidence - Criminal Appeal Act 1912, s 5F(3A)

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY: Separate Question

CASES CITED: Nydam v R [1977] VR 430
The Queen v Lavender [2005] HCA 37; 222 CLR 67
Andrews v DDPP [1937] AC 576
R v Adomako [1995] 1 AC 171
R v Taktak (1988) 14 NSWLR 226
Gardiner v R [2006] NSWCCA 190
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
Re D F Lyons Pty Ltd v Commonwealth Bank [1991] FCA 74

PARTIES: REGINA (Appellant)
Alexander CITTADINI (Respondent)

FILE NUMBER(S): CCA 2008/1008

COUNSEL: DC Frearson SC with P Barrett (Appellant)
SJ Odgers SC with D Priestley (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Appellant)
Mitchell Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0072

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

2008/1008

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J
5 November 2008

R v Alexander CITTADINI

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912, the Deputy Director of Public Prosecutions (“the DDPP”) appeals against a ruling made by Sorby DCJ on 15 October 2008 excluding certain evidence the Crown proposed to tender in a criminal prosecution.

3 S 5F(3A) contains a jurisdictional hurdle: the DDPP must show that the exclusion of the evidence “eliminates or substantially weakens” the prosecution case. The respondent raises no issue that the DDPP has cleared that hurdle.

4 The respondent, together with another man not involved in the current appeal, is charged with 4 counts of manslaughter (by criminal negligence), arising out of the deaths by drowning, on 16 September 2002, of four crew members of a yacht called The Excalibur. Manslaughter by criminal negligence is committed where an accused causes the death of a person by an act or omission which so far falls short of the standard of care required by a reasonable person, that it goes beyond a matter of civil wrong and amounts to a crime: Nydam v R [1977] VR 430 (apparently approved by the High Court in The Queen v Lavender [2005] HCA 37; 222 CLR 67 at 87). To prove the offence a very high degree of negligence is necessary: Andrews v DDPP [1937] AC 576; R v Adomako [1995] 1 AC 171.

5 Where it is alleged that the accused is guilty of manslaughter by reason of an omission, the Crown must prove that the accused owed a personal…

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 Cittadini

Details

AGLC: R v Cittadini [2008] NSWCCA 256
Case: [2008] NSWCCA 256
Decision Date: 5 November 2008

CaseChat Overview and Summary

The case of R v Cittadini involved the prosecution appealing against the exclusion of certain evidence in a criminal trial. The nature of the dispute was whether the evidence, which was to be presented as tendency evidence, should have been admitted in the trial. The appeal was heard in the High Court of Australia. The legal issues at the core of the case revolved around the interpretation and application of the Criminal Appeal Act 1912, particularly section 5F(3A), which deals with the admissibility of evidence in criminal cases.

The court had to decide whether the evidence in question was relevant and admissible under the tendency evidence provisions of the Act. The prosecution argued that the evidence was crucial to establishing a pattern of criminal behaviour, thereby enhancing its probative value. The defence, on the other hand, contended that the evidence had a negligible probative value and would unfairly prejudice the defendant. The court was tasked with balancing these competing considerations, focusing on whether the evidence met the criteria set out in the relevant legislation.

In its reasoning, the court examined the nature of the evidence and its relevance to the case. It considered the probative value against the potential for unfair prejudice, as mandated by section 5F(3A) of the Criminal Appeal Act 1912. The court found that the evidence did not sufficiently meet the criteria for admissibility under the tendency evidence provisions. The court concluded that the potential for unfair prejudice outweighed the probative value, leading to the exclusion of the evidence. Consequently, the appeal by the Crown against the exclusion of the evidence was dismissed.

Orders