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Supreme Court 27 September 2024

R v Fuller (No 2)

[2024] NSWSC 1208

Assault & violenceHomicide
EVIDENCE ADMISSIBILITY TENDENCY EVIDENCE

Citation: R v Fuller (No 2) [2024] NSWSC 1208
Court: Supreme Court of New South Wales
Date: 27 September 2024
Judge: Ierace J

Background

The accused faced an amended indictment containing three counts, including murder (count 2). He pleaded guilty to counts 1 and 3, leaving count 2 to be decided by Ierace J sitting alone. The Crown did not accept the guilty plea to count 3 in full satisfaction of the murder charge.

The Crown alleged that on 28 July 2021, the accused side-swiped the deceased's car outside a petrol station and did not stop. The deceased pursued the accused to his driveway, where a fatal altercation followed. The cause of death was multiple blunt force injuries. Blood stain marks on the deceased's clothing were consistent with the accused's shoe pattern, and significant amounts of the deceased's blood were found on the accused's shoes and legs.

The accused relied on partial defences of excessive self-defence and substantial impairment. A CCTV soundtrack captured him saying he would jump on Mr Hunt's head approximately 20 minutes before the fatal assault, and the accused conceded it was his voice making references to "jump on his head" during the later confrontation. No knife was found at the scene, and there were no eyewitnesses to the assault itself.

Legal Issues

  • Whether tendency evidence of four alleged tendencies met the admissibility requirements under ss 97 and 101 of the Evidence Act 1995 (NSW), in particular whether each alleged tendency had "significant probative value"
  • Whether the accused had a tendency to threaten to jump on a person's head
  • Whether the accused had a tendency to respond to minor motor vehicle incidents with significant threats or acts of violence
  • Whether the accused had a tendency to use violence in a calculated and controlled manner in response to conflict
  • Whether the accused had a tendency to claim fear as a means of manipulating a situation or justifying criminal conduct

Decision

Tendency 1: Propensity to jump on a person's head

The Crown relied on a 2015 incident in which the accused stomped on a former friend's head (the Gold Coast incident) and eight phone calls made while on remand in which the accused used the phrase "jump on his head." Ierace J found the gaol calls were of limited value: in some, the phrase was clearly metaphorical, and in none did it demonstrate that the accused actually carried out such violence. As for the Gold Coast incident, the accused had already conceded causing the fatal injuries, including by jumping on the deceased, and did not dispute the CCTV recordings. The only remaining fact in issue was whether that conduct was carried out in self-defence. The fact that the accused had previously jumped on someone's head did not, on its own, rationally assist in resolving that question to a significant extent (at [33]-[35]). The first tendency was disallowed.

Tendency 2: Gross overreaction with violence or threats to minor motor vehicle incidents

The Crown relied on two carpark incidents witnessed by the accused's former partner, Courtney Billsborough. Both occurred within four years of the killing. Ierace J found that the two incidents, in combination, strongly supported the alleged tendency. Because there was no eyewitness or electronic evidence of precisely how the violence began at the accused's driveway, the tendency evidence had significant probative value on whether the accused was the initial aggressor. The court found that the danger of unfair prejudice was outweighed by that probative value (at [41]-[44]). The evidence was admitted.

Tendency 3: Use of violence in a calculated and controlled way

Of the multiple incidents the Crown initially relied upon, Ierace J identified only one that satisfied the necessary component of demonstrated self-control: the "lightbulb incident," in which the accused confronted his pregnant partner about missing lightbulbs in front of a visitor, and the confrontation escalated to a physical interaction outside the residence. The court found this incident probative of whether the accused was capable of controlling his anger, which bore directly on the partial defence of substantial impairment. The carpark incidents, the Gold Coast incident, and the hospital incident did not demonstrate controlled anger and were excluded from this tendency (at [51]-[53]). Evidence of the lightbulb incident alone was admitted.

Tendency 4: Claiming fear to manipulate a situation or justify criminal conduct

The Crown relied on three body-worn police videos. In the first (July 2018), the accused explained damaging his partner's mother's car by saying he felt he was being attacked and was unwelcome at the birth of his child. In the second (November 2020), the accused claimed to be shaking and scared while being questioned in a public place in daylight hours, in circumstances that were at odds with his demeanour. Ierace J found both videos had significant probative value on whether the accused's claims of fear during the fatal assault were genuine (at [62]-[63]). The third video was excluded: the Crown's submission depended on the accused's account being deliberately untruthful, and the material before the court did not support that assessment (at [64]). The first two videos were admitted; the third was not.

Orders Made

  • Evidence of the first alleged tendency is inadmissible
  • Evidence of Courtney Billsborough consistent with paragraph 47 of her statement dated 21 June 2023 and paragraphs 4, 5 and 6 of her statement dated 24 May 2024 is admissible as to the second tendency
  • Evidence of Courtney Billsborough consistent with paragraph 17 of her statement dated 21 June 2023 is admissible as to the third tendency
  • Evidence of the body-worn videos made on 26 July 2018 and 4 November 2020 is admissible as to the fourth tendency

Key Takeaways

  • Significant probative value under s 97 of the Evidence Act 1995 requires tendency evidence to rationally affect the assessment of the probability of a fact that actually remains in issue. Where the accused concedes the central physical act, evidence of a prior similar act does not necessarily meet that threshold simply because it involves the same method of violence (at [33]-[35]).

  • A tendency framed at a high level of generality may fail the probative value test. Ierace J found that prior conduct of jumping on a person's head did not assist in resolving whether, in this particular instance, the accused acted in self-defence, even though the method of assault was identical (at [34]).

  • Where no eyewitness evidence captures how a fatal confrontation began, tendency evidence of prior overreactions to minor provocations can carry significant probative value on the question of who was the initial aggressor (at [41]).

  • For a tendency to engage in calculated and controlled violence, each instance relied upon must actually demonstrate an element of self-control. The Supreme Court found that spontaneous violent reactions did not support such a tendency, while an incident in which the accused managed his anger before a physical interaction did (at [51]-[52]).

  • Body-worn police interview footage may constitute tendency evidence of a propensity to feign fear in order to justify or deflect scrutiny of criminal conduct, but only where the material before the court supports, without speculation, that the accused's account was false. The third video was excluded precisely because its admission required a finding of deliberate untruth that the available material did not sustain (at [64]).

Legislation and Cases Referenced

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