R v Fuller - [2020] NSWDC 649

District Court

New South Wales

Medium Neutral Citation: R v Fuller [2020] NSWDC 649
Hearing dates: 28 October 2020
Decision date: 28 October 2020
Jurisdiction: Criminal
Before: Haesler DC DCJ
Decision:
I find Phillip Leslie Fuller unfit to be tried.

Catchwords:
CRIME — Indecent assault child under 10 – fitness to be tried
MENTAL HEALTH — Criminal proceedings- guilty plea in Local Court – committal for sentence – fitness to adhere to plea raised on a bona fide basis - fitness hearing - experts agree accused unfit to plead or be tried - need for judge to make independent determination - accused unfit to be tried or adhere to guilty pleas - referral to Mental Health Review Tribunal

Legislation Cited:
Bail Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Mental Health (Forensic Proceedings) Act 2000

Cases Cited:
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Hofer v R [2019] NSWCCA
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
Presser v R [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

Category: Principal judgment
Parties: Phillip Leslie Fuller (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr I Wallach (for the accused)
Mr M Fox, Crown Prosecutor
Solicitors:
Armstrong Legal (for the accused)
Director of Public Prosecutions NSW

File Number(s): 2019/00273415
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Identifying information has been removed from this version of the judgment to comply with the statutes.

Judgment

Introduction

In June 2018 Police on the New South Wales (NSW) South Coast received a report that in 1981 or 1982 Mr Phillip Fuller had indecently assaulted a young girl. He was then aged 32, the girl was then 6 or 7. The incidents were said to have occurred while Fuller was babysitting the child at his home near Bateman’s Bay. Fuller was spoken to soon after but exercised his right to silence.
In September 2019 Fuller was arrested and charged with 4 counts of indecent assault on the complainant: s 61E(1) Crimes Act 1900, as it then was. He was granted bail.
On 9 March 2020, after Chapter 3 Criminal Procedure Act 1986 negotiations and charge certification, Fuller admitted his guilt in relation to two s 61E(1) Crimes Act counts. Those guilty pleas were accepted by a Magistrate in the Local Court and Fuller was committed to the District Court at Bega for sentence: s 97 Criminal Procedure Act 1986. It was also agreed that guilt would be admitted to two other counts and that they would be dealt with on a Form 1: s 32 Crimes (Sentencing Procedure) Act 1999.
The matter was listed at Bega Court in the June 2020 sittings. At a pre-sittings telephone call-over, before Judge Colefax SC, Fuller’s…

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 Fuller

Details

AGLC: R v Fuller [2020] NSWDC 649
Case: [2020] NSWDC 649
Decision Date: 28 October 2020

CaseChat Overview and Summary

The case of R v Fuller involved Phillip Leslie Fuller who was charged with indecent assault of a child under the age of 10. The dispute centred on Fuller's fitness to be tried for the offence following his plea of guilty in the Local Court. The case was heard in the Supreme Court of New South Wales. The court was required to decide whether Fuller was fit to be tried for the offence, given the concerns raised about his mental fitness to adhere to his guilty plea.

The central legal issue was whether Fuller was fit to be tried for the offence, given that two experts agreed he was unfit to plead or be tried. The court had to make an independent determination of Fuller's fitness to be tried, as the experts' opinions were not conclusive. The court also had to consider whether Fuller's fitness to be tried was affected by his fitness to adhere to his guilty plea. This was a complex issue as it involved balancing the need for Fuller to receive a fair trial with the need to protect the public from potential harm.

The court found that Fuller was unfit to be tried. The judge made an independent determination of Fuller's fitness to be tried, considering the evidence presented by the experts and other relevant factors. The court found that Fuller's mental condition was such that he was unable to understand the nature of the proceedings or to participate in his defence. The court also found that Fuller's fitness to be tried was affected by his fitness to adhere to his guilty plea. As a result, the court found Fuller unfit to be tried and ordered that he be referred to the Mental Health Review Tribunal for further assessment and treatment.

Orders

Orders of the court

I find Phillip Leslie Fuller unfit to be tried.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Fuller [2020] NSWDC 649
Hearing dates:	28 October 2020
Decision date:	28 October 2020
Jurisdiction:	Criminal
Before:	Haesler DC DCJ
Decision:	I find Phillip Leslie Fuller unfit to be tried.
Catchwords:	CRIME — Indecent assault child under 10 – fitness to be tried MENTAL HEALTH — Criminal proceedings- guilty plea in Local Court – committal for sentence – fitness to adhere to plea raised on a bona fide basis - fitness hearing - experts agree accused unfit to plead or be tried - need for judge to make independent determination - accused unfit to be tried or adhere to guilty pleas - referral to Mental Health Review Tribunal
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Mental Health (Forensic Proceedings) Act 2000
Cases Cited:	Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Hofer v R [2019] NSWCCA Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 Presser v R [1958] VR 45 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
Category:	Principal judgment
Parties:	Phillip Leslie Fuller (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr I Wallach (for the accused) Mr M Fox, Crown Prosecutor Solicitors: Armstrong Legal (for the accused) Director of Public Prosecutions NSW
File Number(s):	2019/00273415
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Identifying information has been removed from this version of the judgment to comply with the statutes.