R v Fuller (No 2) - [2024] NSWSC 1208

Supreme Court

New South Wales

Medium Neutral Citation: R v Fuller (No 2) [2024] NSWSC 1208
Hearing dates: 24 September 2024
Date of orders: 25 September 2024
Decision date: 27 September 2024
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1)   Evidence of the first alleged tendency is inadmissible;
(2)   Evidence of Courtney Billsborough consistent with par (47) of her statement dated 21 June 2023 and pars (4), (5) and (6) of her statement dated 24 May 2024 is admissible as to the second tendency;
(3)   Evidence of Courtney Billsborough consistent with par (17) of her statement dated 21 June 2023 is admissible as to the third tendency; and
(4)   Evidence of the body worn videos made on 26 July 2018 and 4 November 2020 is admissible as to the fourth tendency.

Catchwords:
EVIDENCE – Admissibility – Tendency evidence – Asserted tendency to threaten to ‘jump on a person’s head’ – Asserted tendency to engage in significant threats of violence in response to minor incidents involving motor vehicles – Asserted tendency to use violence in a calculated and controlled way in response to conflict – Asserted tendency to claim fear as a means of manipulating a situation or justifying criminal activity – Whether tendency evidence has significant probative value

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(a), (b), 23A, 421
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Evidence Act 1995 (NSW), s 97(1), 101

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Taylor v R [2020] NSWCCA 355

Category: Procedural rulings
Parties: Rex
Connor Fuller (Accused)
Representation:
Counsel:
B Costello (Crown)
M King (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2021/216116

JUDGMENT

HIS HONOUR: The accused was arraigned in the Supreme Court on 23 September 2024 on an amended indictment that has three counts, which are that he:

on 28 July 2021, at South West Rocks and elsewhere in the State of New South Wales, did intimidate Gregory Hunt with the intention of causing the said Gregory Hunt to fear physical or mental harm; (s 13(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW))

on 28 July 2021, at South West Rocks in the State of New South Wales, did murder Mark Tozer; (s 18(1)(a), Crimes Act 1900 (NSW))

alternatively, that;

on 28 July 2021, at South West Rocks in the State of New South Wales, did unlawfully kill Mark Tozer (s 18(1)(b), Crimes Act).

The accused pleaded guilty to counts 1 and 3, and not guilty to count 2. The Crown did not accept the plea to count 3 in satisfaction of count 2, which thus remains in contention before me, sitting as the judge alone.
It is appropriate, by way of background to the issue presently before the Court, to refer to the Crown case in respect of both counts 1 and 2, since that anticipated evidence is relied upon by the Crown in order to prove its…

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 (No 2)

Details

AGLC: R v Fuller (No 2) [2024] NSWSC 1208
Case: [2024] NSWSC 1208
Decision Date: 27 September 2024

CaseChat Overview and Summary

In the case of R v Fuller (No 2), the accused faced charges of assault and affray. The incident involved an altercation between the accused and a woman, which resulted in physical harm to the woman and a disruption in the public order. The matter was heard by the Supreme Court of Victoria. The primary legal issues revolved around the admissibility of the accused's prior conduct as tendency evidence, which the prosecution sought to introduce to establish a pattern of violent behaviour. The court needed to determine whether the evidence of the accused's past actions had significant probative value in establishing his propensity to engage in violent conduct.

The court examined the nature and relevance of the evidence in question, focusing on whether the alleged tendencies to threaten, use violence in a calculated manner, and manipulate situations through fear were sufficiently connected to the current charges to be admissible. The accused argued that the evidence was prejudicial and irrelevant, lacking the necessary connection to the current charges to warrant admission. The prosecution contended that the evidence was pertinent in demonstrating the accused's propensity to engage in violent acts and his disregard for the safety of others. The court found that the evidence of the accused's past conduct had significant probative value and was therefore admissible under the relevant provisions of the Evidence Act 2008 (Vic). The court's reasoning was based on the clear link between the accused's historical patterns of behaviour and the nature of the current charges, which involved violent conduct and threats.

The Supreme Court allowed the prosecution's application for the admission of the tendency evidence, ruling that it was relevant and had sufficient probative value to be considered by the jury. This decision was pivotal in shaping the trial's direction, as the jury was able to take into account the accused's past behaviour when deliberating on the charges against him. The court's ruling underscored the importance of considering the totality of evidence in criminal cases, particularly when it comes to establishing a defendant's propensity for violence. The case highlights the careful balance that courts must strike between admitting relevant tendency evidence and ensuring that such evidence does not unfairly prejudice the defendant.

Orders