R v Fuller - [2001] NSWCCA 390

CITATION: R v Fuller [2001] NSWCCA 390

FILE NUMBER(S): CCA 60782/00

HEARING DATE(S): 26 September 2001

JUDGMENT DATE:
26 September 2001

PARTIES :

Terrence James Fuller (Appellant)
Regina (Respondent)

JUDGMENT OF: Heydon JA at 1, 36; Wood CJ at CL at 34; Carruthers AJ at 35

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 00/31/0170

LOWER COURT JUDICIAL
OFFICER : Garling DCJ

COUNSEL : Mr P Segal (Appellant)
Mr G E Smith (Respondent)

SOLICITORS: H Schleiger & Associates (Appellant)
S E O'Connor (Respondent)

CATCHWORDS: Criminal Law - Sexual offences - Appeal against conviction of carnal knowledge of person under age of 16 years - Whether acquittal in relation to one count made conviction in relation to another count inconsistent and unreliable - Whether the verdicts could be reconciled - Criminal Practice and Procedure - Judicial directions - Sexual offences - "Kilby direction" - Whether trial judge's direction on complainant's credit having regard to delay was inadequate - Reduced impact of delay on credibility of complainant where another person witnessed matters pointing towards occurrence of offence

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED:
Jones v R (1997) 191 CLR 439
R v Markuleski [2001] NSWCCA 290
MacKenzie v R (1996) 190 CLR 348
R v Doney (1988) 37 A Crim R 288
Donley v R (1990) 171 CLR 207

DECISION: See para 36

IN THE COURT OF
CRIMINAL APPEAL

60782/00

HEYDON JA

WOOD CJ at CL

CARRUTHERS AJ

Wednesday, 26 September 2001

REGINA v Terrence James FULLER

Judgment

Background

The appellant was tried before Garling DCJ and a jury on 9-13 October 2000. Thirteen counts went to the jury. Counts 1-6 were allegations of six acts of sexual intercourse between the appellant and the complainant without consent at times when she was aged between 12 and 15. Counts 1A-6A were respectively alternatives to Counts 1-6 alleging, not sexual intercourse without consent, but carnal knowledge of a person under the age of 16 years contrary to various sections of the Crimes Act 1900 (NSW). Count 8 was an allegation of sexual intercourse without consent with a person under the age of 16 years. On 13 October 2000 the jury returned its verdicts. The accused was acquitted of all counts except Count 6A. On that count he was convicted, and he now appeals against his conviction on two grounds.

Ground 1: inconsistent verdict

2 Ground 1 was:

“The verdict in count 6A is inconsistent and unreasonable.”

3 The inconsistency relied on was a supposed inconsistency between the acquittal on Count 6 and the conviction on Count 6A. Count 6 was:

“In the months of June or July 1986 at Kempsey in the State of New South Wales [the appellant] did have sexual intercourse with Julie Ann DONNELLY without her consent and knowing that she was not consenting thereto, she then being 14 or 15 years old.”

“In the months of June or July 1986 at Kempsey in the State of New South Wales [the appellant] did…

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 [2001] NSWCCA 390
Case: [2001] NSWCCA 390
Decision Date: 26 September 2001

CaseChat Overview and Summary

In the case of R v Fuller, the respondent, Fuller, was convicted of the offence of carnal knowledge of a person under the age of 16 years. The respondent appealed against his conviction, raising two primary issues. Firstly, Fuller argued that his acquittal on one count rendered his conviction on another count inconsistent and unreliable. Secondly, Fuller contended that the trial judge's direction to the jury regarding the credit of the complainant, in light of a delay in reporting the offence, was inadequate.

The court considered the respondent's arguments, focusing on the consistency of the verdicts and the adequacy of the judicial direction. The court found that the jury was entitled to convict the respondent on one count and acquit him on another, given the evidence presented. The court also concluded that the trial judge's direction, which included the "Kilby direction," was sufficient in light of the circumstances, particularly as another person witnessed matters that pointed towards the occurrence of the offence, thereby reducing the impact of the delay on the complainant's credibility.

Ultimately, the court found that the trial judge's direction was adequate, and the verdicts were consistent and reliable. The appeal was dismissed, and Fuller's conviction stood. The court's decision emphasised the importance of considering the totality of the evidence and the circumstances surrounding the case when evaluating the consistency and reliability of verdicts, as well as the adequacy of judicial directions in sexual offence cases.

Orders