Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Fuller v R [2021] NSWCCA 194 Hearing dates: 19 February 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Before: Johnson J at [1];
Price J at [171];
Davies J at [172].Decision: 1. Extend time to 13 July 2020 for the filing of a Notice of Appeal.
2. Refuse the Applicant leave to appeal against conviction.
Catchwords: CRIME – appeal against conviction – murder – applicant pleads guilty in 2016 to murder and sentenced for offence – applicant’s legal representatives obtain psychiatric report in 2015 before entry of plea – 2015 report indicates that defence of mental illness and partial defence of substantial impairment not available to applicant – 2019 psychiatric report indicates that partial defence of substantial impairment was available to applicant – application for extension of time to appeal against conviction – principles to be applied on appeal against conviction following guilty plea – claim that 2019 psychiatric report constituted fresh evidence – whether fresh evidence or new evidence – 2019 psychiatric report based substantially upon new account provided by applicant – new account of applicant not credible or capable of belief by a jury acting reasonably – miscarriage of justice not demonstrated – extension of time granted – leave to appeal against conviction refused
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Bikic v R [2002] NSWCCA 227
Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Kanakaradnam v R [2018] NSWCCA 282
Ke v R [2021] NSWCCA 177
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
MRW v R [2011] NSWCCA 260
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Chiron (1980) 1 NSWLR 218
R v Fuller [2016] NSWSC 815
R v Fuller (No. 2) [2017] NSWSC 1351
R v Maltese (2004) 150 A Crim R 97; [2004] NSWCCA 408
R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
Samandi v R [2020] NSWCCA 217
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Xie v R [2021] NSWCCA 1
Texts Cited: ---
Category: Principal judgment Parties: Owen Junior Fuller (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr S Odgers SC (Applicant)
Ms HR Roberts (Respondent)
Armstrong Felton (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2013/380993 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Common Law
- Citation:
R v Fuller [2016] NSWSC 815; R v Fuller (No. 2) [2017] NSWSC 1351
- Date of Decision:
- 14 June 2016
- Before:
- Rothman J
- File Number(s):
- 2013/380993
Judgment
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- AGLC
- Fuller v R [2021] NSWCCA 194
- Case
- [2021] NSWCCA 194
- Decision Date
CaseChat Overview and Summary
The court held that the 2019 psychiatric report was based substantially on a new account provided by the applicant, which the court found not credible or capable of belief by a jury acting reasonably. The court held that the principles guiding an appeal against a conviction following a guilty plea required the applicant to demonstrate a miscarriage of justice. The court found that the 2019 psychiatric report did not meet this threshold, as the new account was not believable. Consequently, the court granted an extension of time to appeal but refused leave to appeal against the conviction.
The reasoning of the court centred on the credibility of the new account provided by the applicant and the lack of a miscarriage of justice. The court applied the principles that guide appeals against conviction following a guilty plea, focusing on whether the new evidence could justify an appeal. Given that the new account was deemed not credible, the court concluded that the applicant had not demonstrated a miscarriage of justice.
The court's final orders included granting an extension of time to appeal but denying leave to appeal against the conviction. The applicant was not permitted to appeal the conviction based on the new psychiatric evidence, as the court found no miscarriage of justice had occurred.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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