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Fuller v R

Fuller v R

Case [2021] NSWCCA 194 20 August 2021

Appeal

Limitation Periods

Criminal Liability

Miscarriage of Justice

Criminal Law

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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:
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Category: Principal judgment
Parties: Owen Junior Fuller (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Odgers SC (Applicant)
Ms HR Roberts (Respondent)
Solicitors:
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

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 Fuller v R

Details

AGLC: Fuller v R [2021] NSWCCA 194
Case: [2021] NSWCCA 194
Decision Date: 20 August 2021

CaseChat Overview and Summary

Fuller v R involved an appeal against a conviction for murder. The applicant, who had pleaded guilty in 2016, sought to appeal the conviction based on new psychiatric evidence obtained in 2019. The legal issues before the court were whether the 2019 psychiatric report constituted fresh or new evidence, and if so, whether the court should grant an extension of time to appeal against the conviction and allow the appeal to proceed. The court had to determine if the new evidence was such that a miscarriage of justice had occurred, justifying the grant of leave to appeal.

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