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Court of Criminal Appeal 20 August 2021

Fuller v R

[2021] NSWCCA 194

Homicide
CRIME APPEAL AGAINST CONVICTION MURDER WHETHER FRESH EVIDENCE OR NEW EVIDENCE MISCARRIAGE OF JUSTICE NOT DEMONSTRATED EXTENSION OF TIME GRANTED

Citation: Fuller v R [2021] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judges: Johnson J (with Price J and Davies J agreeing)

Background

The applicant pleaded guilty to the murder of a man at Young, NSW, in August 2013. He was sentenced in 2016 to imprisonment for 24 years and six months, with a non-parole period of 18 years and four months. His legal representatives at the time were experienced and had obtained a psychiatric report in 2015 from Dr Olav Nielssen, which did not support either a full defence of mental illness or the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW).

In 2019, Dr Nielssen produced a second report. This time, based on a new and different account provided by the applicant, Dr Nielssen concluded that the partial defence of substantial impairment was available. The applicant then sought to challenge his conviction, arguing this report constituted fresh evidence of a miscarriage of justice.

The applicant filed a Notice of Appeal and an application for an extension of time in July 2020, some four years after sentence. If successful, he sought a retrial on murder where the sole issue would be whether substantial impairment reduced the offence to manslaughter.

  • Whether the 2019 psychiatric report constituted "fresh evidence" or merely "new evidence," and what consequences flowed from that distinction.
  • Whether the applicant's new factual account, which underpinned the 2019 report, was credible or capable of belief by a reasonable jury.
  • Whether a miscarriage of justice had been demonstrated so as to justify going behind the guilty plea.
  • Whether an extension of time should be granted, taking into account the interests of justice and the merits of the application.

Decision

The court accepted that applications to go behind a guilty plea must be "approached with caution bordering on circumspection," citing R v Thalari (2009). The applicant bore the onus of proving a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).

The central difficulty for the applicant was that the 2019 psychiatric report rested almost entirely on a new version of events that he had not provided to anyone before, including his own experienced legal team in 2015 and 2016. The court heard evidence from the applicant directly, who was cross-examined, and received competing psychiatric evidence including from a second expert, Dr Eagle. Johnson J found the applicant's new account of a delusional belief in something he called "The Syndicate" at the time of the killing to be not credible and incapable of belief by a jury acting reasonably. The 2019 report fell away as a consequence.

The court treated the 2019 material as new evidence rather than fresh evidence. Under that characterisation, a miscarriage of justice would only arise if the evidence, taken together with the earlier proceedings, pointed to a conclusion that the applicant was not guilty of murder. No such conclusion was available on the material. Applying the fresh evidence test in the alternative produced the same result: the evidence was not credible and did not raise a significant possibility that a reasonable jury would have acquitted on murder.

The extension of time was granted to allow the application to be properly considered on its merits. However, for the reasons above, leave to appeal against conviction was refused. Johnson J observed that the case illustrated precisely why a cautious and circumspect approach is warranted when applicants seek to depart from guilty pleas.

Orders Made

  • Extension of time granted to 13 July 2020 for the filing of a Notice of Appeal.
  • Leave to appeal against conviction refused.

Key Takeaways

  • Applications to withdraw from or go behind a guilty plea are approached with "caution bordering on circumspection," and the applicant bears the onus of proving a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • A later psychiatric report based substantially on a new factual account by the applicant, which was not provided during the original proceedings, is likely to be characterised as new evidence rather than fresh evidence, with a correspondingly higher threshold to establish a miscarriage of justice.
  • Granting an extension of time to appeal does not guarantee leave will follow: the Court of Criminal Appeal assessed the merits fully before refusing leave, demonstrating that the extension and the substantive application are distinct steps.
  • Where a psychiatric opinion depends entirely on an account the court finds not credible and incapable of belief by a reasonable jury, the opinion itself carries no weight in establishing a miscarriage of justice.
  • Under s 23A(3) of the Crimes Act 1900 (NSW), voluntary intoxication must be disregarded when assessing the partial defence of substantial impairment, an additional constraint the applicant would have faced at any retrial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10(1)(b)
- Crimes Act 1900 (NSW), s 23A
- Criminal Procedure Act 1986 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
- R v Chiron (1980) 1 NSWLR 218
- Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
- R v Fuller [2016] NSWSC 815; R v Fuller (No. 2) [2017] NSWSC 1351
- Bikic v R [2002] NSWCCA 227
- Samandi v R [2020] NSWCCA 217
- Xie v R [2021] NSWCCA 1