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Court of Criminal Appeal 17 April 2002

Regina v T J Fuller

[2002] NSWCCA 121

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION FRESH EVIDENCE LEAVE TO ADD GROUND OF APPEAL

Citation: Regina v T J Fuller [2002] NSWCCA 121
Court: New South Wales Court of Criminal Appeal
Date: 17 April 2002
Judge(s): Hodgson JA, Greg James J, Kirby J

Background

The appellant was tried before Garling DCJ and a jury in October 2000 on multiple counts of sexual intercourse without consent and unlawful carnal knowledge. The charges related to alleged conduct against the complainant between 1984 and 1987, when she was aged between 12 and 15. The appellant was acquitted on all counts except one: unlawful carnal knowledge alleged to have occurred in June or July 1986 (count 6A).

The appellant had earlier lodged an appeal raising inconsistent verdicts and the adequacy of the trial judge's direction on delayed complaint. The Court of Criminal Appeal dismissed those grounds in earlier proceedings (R v Fuller [2001] NSWCCA 390). The appellant then filed an Amended Notice of Appeal raising two new grounds: fresh evidence and the deprivation of the opportunity to raise good character.

At the time of the original trial, separate charges of sexual misconduct against the appellant were still pending. After the trial, no evidence was offered on those other charges and the appellant was acquitted of them. The appellant argued this sequence meant he could not safely place his good character before the jury during the trial on count 6A.

  • Whether certain post-trial evidence constituted "fresh evidence" capable of establishing a miscarriage of justice warranting appellate intervention
  • Whether the appellant was deprived of the opportunity to raise good character at trial because other sexual offence charges were then pending, and whether that deprivation amounted to a miscarriage of justice

Decision

Fresh evidence ground: The Court applied the test from Gallagher v The Queen and Mickelberg v The Queen, namely whether the absence of the evidence at trial led to a miscarriage of justice. A miscarriage arises where there is a significant possibility that a reasonable jury, had it heard the evidence, would have acquitted. The fresh evidence put forward consisted of statements from witnesses indicating that the complainant had said she had in fact had consensual sex with the appellant, and had mentioned getting "all she could get out of it." The Court found this evidence fell far short of what had been foreshadowed at the earlier hearing, and that even taken at its highest, it did not create a significant possibility of acquittal on count 6A.

The Court noted that count 6A was supported by particularly strong corroboration. The complainant's account was independently corroborated by her aunt, who described witnessing the relevant incident in precise and consistent detail, fixing the time by reference to the age of her infant child. The evidence of the appellant and his witness, suggesting the aunt was mistaken, was characterised as involving a number of difficulties. The fresh evidence was therefore insufficient to demonstrate any miscarriage.

Character evidence ground: The Court acknowledged the general difficulty faced by an accused who, because of pending charges, cannot risk raising good character without exposing himself to cross-examination about those very charges. However, the Court observed that the position was not without remedy: counsel could have sought a ruling from the trial judge as to whether, if character were raised, the accused could be cross-examined on the subject matter of the pending trial. That course was not pursued.

Setting aside that procedural point, the Court addressed the substantive question directly: given the strength of the Crown case on count 6A, was there a significant possibility that a jury, knowing the appellant had no prior convictions for sexual offences, would have acquitted? The Court concluded there was no such significant possibility, given the corroborated nature of the Crown case. Leave to add the new ground was refused and the appeal was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The test for receiving fresh evidence on appeal is whether its absence at trial caused a miscarriage of justice, specifically whether there is a significant possibility that a reasonable jury, had it heard the evidence, would have acquitted.
  • Where fresh evidence falls materially short of what was originally foreshadowed to the appellate court, the court will assess the evidence actually before it and measure it against the strength of the Crown case at trial.
  • Strong corroboration of the complainant's account is a significant countervailing factor when evaluating whether any additional evidence favourable to the accused could have produced a different verdict.
  • An accused who faces pending charges at the time of trial is not automatically deprived of the ability to raise good character: a pre-emptive ruling from the trial judge on the scope of permissible cross-examination was an available but unused option in this case.
  • Refusing leave to add a new ground, the Court of Criminal Appeal confirmed that deprivation of the opportunity to raise character evidence will only constitute a miscarriage of justice where, in the context of the whole case, there is a significant possibility it would have made a difference to the verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 71
- Evidence Act 1995 (NSW), ss 112, 192(2)(b)

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