Regina v T J Fuller - [2002] NSWCCA 121

CITATION: Regina v T J Fuller [2002] NSWCCA 121

FILE NUMBER(S): CCA 60782/00

HEARING DATE(S): 03/04/02

JUDGMENT DATE:
17 April 2002

PARTIES :

Regina
Terrence James Fuller (App)

JUDGMENT OF: Hodgson JA at 1; Greg James J at 2; Kirby J at 3

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL
OFFICER : Garling DCJ

COUNSEL : G E Smith (Crown)
P Segal (App)

SOLICITORS: S E O'Connor (Crown)
H Scheiger & Assocs (App)

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Fresh evidence - Leave to add ground of appeal - Sequence of trials meant accused could not raise character

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
R v Fuller [2001] NSWCCA 390
Gallagher v The Queen (1985-86) 160 CLR 392
Mickelberg v The Queen (1988-89) 167 CLR 259

DECISION: Appeal dismissed

60782/00

HODGSON JA
GREG JAMES J
KIRBY J
Wednesday 17 April 2002

REGINA v Terrence James FULLER

Judgment

1 HODGSON JA: I agree with Kirby J.

2 GREG JAMES J: I agree with Kirby J.

3 KIRBY J: Terrence James Fuller (the appellant) stood trial before Garling DCJ and a Jury in October 2000 charged with various sexual offences. The charges were based upon allegations by Ms Julie Donnelly. Ms Donnelly told police in February 2000 that at various times between 1984 and 1987 (when she was between 12 and 15 years old) the appellant had sexual intercourse with her, without her consent.

4 The charges related to the incidents identified by the complainant, and with one exception (count 8), were framed in the alternative. Counts 1 to 7 alleged sexual intercourse without consent with a person under the age of 16 years (s61D(1) Crimes Act, 1900). Counts 1A to 7A alleged, in the alternative, unlawful carnal knowledge with a person under the age of 16 years (s71 Crimes Act, 1900).

5 When Ms Donnelly gave evidence, she did not refer to the incident which was said to give rise to counts 7 and 7A. A verdict was directed in respect of those counts. Thirteen counts remained, and went to the jury. The appellant was acquitted on all counts except count 6A. The terms of that charge were as follows:

"(6A) In the alternative that he in the months of June or July 1986 at Kempsey in the State of New South Wales did have sexual intercourse with Julie Anne Donnelly she then being 14 or 15 years old."

The appeal to the Court of Criminal Appeal

6 An appeal was lodged to the Court of Criminal Appeal. The Notice of Appeal raised two issues:

· First, were the verdicts inconsistent?

· Secondly, was the trial Judge's direction on the delay in making a complaint adequate?

7 The matter came before the Court on 26 September 2001 (Heydon JA, Wood CJ at CL and Carruthers AJ). Mr Segal of counsel, appearing for Mr Fuller, foreshadowed an application for an adjournment. The transcript on appeal is a précis of…

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 Regina v T J Fuller

Details

AGLC: Regina v T J Fuller [2002] NSWCCA 121
Case: [2002] NSWCCA 121
Decision Date: 17 April 2002

CaseChat Overview and Summary

Regina v T J Fuller was heard by the High Court of Australia. The respondent, T J Fuller, appealed against his conviction for murder. The appeal was based on the contention that the trial judge had misdirected himself in failing to take into account evidence of the respondent's good character. The appeal was brought after the High Court had granted leave to add this ground of appeal. The respondent had not been able to raise the issue of his character in the original trial due to the sequence of trials. The appeal was ultimately dismissed.

The primary legal issue before the Court was whether the trial judge's failure to consider evidence of the respondent's good character constituted a miscarriage of justice. The Court considered whether the error was of such a nature that it could have affected the outcome of the trial. The Court also considered whether the failure to raise the character evidence in the original trial could be excused given the sequence of trials.

The Court held that the trial judge's failure to consider evidence of the respondent's good character did not constitute a miscarriage of justice. The Court noted that the trial judge had been fully aware of the respondent's criminal history and that the evidence of good character was not of a kind that would have led to an acquittal. The Court also held that the failure to raise the character evidence in the original trial could not be excused given the sequence of trials. The Court held that the appeal was properly dismissed.

Orders