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 (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2)…" 4 The Crown has not raised an issue that the accused has failed to give written notice in accordance with s 97(1)(a). As I understand the Crown's submissions, it argues that the evidence is irrelevant in the sense that it has no significant probative value within the terms of s 97(1)(b). "Probative value" of evidence is defined to mean the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. For present purposes the fact or facts in issue of which the accused contends the evidence of Mr Burke may be probative are the accused's good character and the related issue of his tendency to resolve disputes with neighbours without resorting to violence. The Dictionary provides no guidance as to the meaning of the word "significant". It has been held to mean something more than mere relevance but something less than a "substantial degree of relevance": see R v Lockyer (1996) 89 A Crim R 457; AW v The Queen [2009] NSWCCA 1 at [47]; R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [33]; and R v Zhang [2005] NSWCCA 437; (2005) A Crim R 504 at [139]. 5 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)…" 6 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." 7 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. 8 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'." 9 It has been held that the expression "good character" in s 110 has the meaning accorded to the expression in Attwood. The evidence may be excluded by the Court under s 135. 10 The point has not yet arrived in this trial at which the accused might elect whether or not to go into evidence generally in his defence or in particular to do so himself. I have not yet been asked to receive the statement of Mr Burke into evidence as an exhibit but rather simply to indicate the view I would take to its admissibility in advance of its tender, in order that the efficient conduct of the trial proper may not be disrupted. The decision I make does not bind or require the accused to tender Mr Burke's statement when the time to decide whether or not to do so is reached. 11 In my view, with the exception to which I shall shortly refer, the statement of Mr Burke is admissible in accordance with s 110(1) of the Act. Mr Burke speaks about a series of detailed events over a period of some 12 months or so preceding April 2009 in which the accused approached Mr Burke about the construction of a fence along their shared boundary. The fence was to cover some 700 metres. The fence was to be of a similar construction as the fence the accused later built with the deceased and of a similar length. The cost of labour and materials was to be shared. They had a discussion about the design of the fence. Apparently Mr Burke wanted a fence four feet six inches high with barbed wire on top. The accused wanted a five-foot high fence with an unspecified number of wires. Mr Burke said that he did not observe there to be any animosity towards him from the accused as an incident of the fencing differences. 12 There may be a difference of opinion about the weight that may ultimately attach to this evidence as an indicator of the accused's character either in the particular sense involved in building fences or in the general sense of a man not quick to anger. There may also be shades of opinion about both of these aspects of the accused's character. However, the significance, if any, that may be attached to the evidence is a matter for the jury. I do not consider that the evidence is irrelevant or of so little weight that it should be excluded as effectively irrelevant. 13 It is a significant part of the Crown case that the accused's motive for shooting the deceased was his unresolved animosity for the deceased that was ignited over their fence. There is a factual dispute apparent from the evidence and the accused's opening about how and why the accused was on the deceased's property in the early morning hours on 20 April 2009. The Crown case is that the accused's motive to kill the deceased is established or may be inferred from activities leading up to the death of the deceased, which are said to be related to what happened in the local Land Board hearing and the decision that it reached. The accused wishes to counter this evidence with Mr Burke's evidence that the accused did not have a motive to kill the deceased that arose in this way and that his anterior conduct in a related context establishes or assists his defence in this regard. 14 In my opinion Mr Burke's evidence is evidence that qualifies as evidence of good character. It has significant probative value in the sense that it may not be substantial but it is more than merely relevant. I consider that the evidence has potential importance and is "of consequence". I recognise that "[t]he significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact": R v Lock (1997) 91 A Crim R 356 at 361; R v Osman [1998] NSWSC 13 at page 14. 15 I do not consider that Mr Burke's evidence should be excluded. However, there are two exceptions to that general statement, to which I earlier referred. The first relates to paragraph 15 of Mr Burke's statement. Paragraph 4 should also be excluded on a different ground. Those paragraphs are as follows: "4. I have known the Hatton family for all my life and have known them to be very honest and caring family well loved and respected in the community. That [sic] were a private family and stuck to themselves and never caused anyone grief. ***** 15. When I found out that Alf had been charged with shooting Colin I was shocked. I knew there was bad blood between them over the fence, but I never thought that Alf was going to end up shooting Colin. Alf never gave me the impression that he was capable of shooting anyone." 16 Mr Burke gives no indication that he is aware of the accused's antecedents or that he has any particular or general information or knowledge about him, upon the basis of which to express these opinions. He is unavailable for cross-examination and the foundation for his views cannot be known or tested. It would be unfair to the Crown to permit paragraph 15 of the statement to become evidence in the trial without giving the Crown the opportunity to test it. It seems likely that Mr Burke might modify his sentiments if confronted with some factual matters about the accused to which he does not specifically advert in his statement but which have either been referred to in the evidence in the trial so far or which have been mentioned as possibly becoming evidence in due course. In my opinion, paragraph 15 in Mr Burke's statement is potentially unfairly prejudicial and whilst its foundation remains unexplained is also likely to be misleading and confusing. It should be excluded in accordance with s 135 of the Act. 17 Paragraph 4 of Mr Burke's statement is not relevant to any issue that has emerged, or which has been foreshadowed, in this trial. It should be excluded on that basis. 18 Mr Burke's statement, with the exception of these paragraphs, is otherwise admissible, despite his unavailability for cross-examination. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.