R v Ceniccola [2010] NSWSC 1554

New South Wales Supreme Court

CITATION : R v Ceniccola [2010] NSWSC 1554

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

JUDGMENT DATE : 3 December 2010

JUDGMENT OF : Harrison J

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

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

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 CASES CITED : 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

PARTIES : Regina Alfonso Ceniccola

FILE NUMBER(S) : SC 2009/128943

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

3 December 2010

2009/128943 R v Alfonso CENICCOLA

JUDGMENT 1 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. 2 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 of any fact in issue and that it should in any event be excluded pursuant to s 135 of the Act. 3 Section 97 of the Act provides relevantly as follows: " 97 The tendency rule