Citation: R v Fuller (No 3) [2024] NSWSC 1294
Court: Supreme Court of New South Wales
Date: 17 October 2024
Judge(s): Ierace J
Background
The accused stands trial for murder. He concedes that he caused the deceased's death by the application of force and has offered a plea to manslaughter, accepting that the force was not a reasonable response in the circumstances as he perceived them. The sole remaining issue for the Crown to prove beyond reasonable doubt is that the accused did not believe it was necessary to apply that force in order to defend himself, under the partial defence of excessive self-defence (s 421 of the Crimes Act 1900 (NSW)).
While on remand between August 2021 and August 2023, the accused made numerous phone calls to family members and friends. Each call was prefaced by a standard audio warning that it would be recorded. The Crown sought to adduce edited excerpts from 24 of those calls, arguing they contained admissions and statements relevant to the accused's state of mind at the time of the incident.
The defence challenged the admissibility of those recordings, arguing they contained no direct or inferential admissions and lacked probative value because they were not relevant to any fact in issue.
Legal Issues
- Whether the edited audio recordings of the remand phone calls are relevant to the remaining facts in issue under s 55(1) of the Evidence Act 1995 (NSW), principally the accused's belief as to the necessity of using force in self-defence.
- Whether statements in the calls constitute lies capable of evidencing consciousness of guilt under the principles in Edwards v The Queen (1993) 178 CLR 193.
- Whether calls or parts of calls already addressed by concessions or existing evidence should nonetheless be admitted.
Decision
Issue 1: General admissibility of the calls
Ierace J ruled that edited excerpts from 19 of the 24 calls are admissible because they are relevant to facts in issue in the trial (at [1], [9]). The remaining five calls (calls 4, 5, 7, 12, and 15) were excluded because the assertions in them had either been conceded by the defence, were already in evidence through other means, or were not relevant to any fact in issue (at [10]).
Issue 2: The screwdriver calls
Seven calls addressed whether the accused believed the deceased was armed with a weapon at the time of the incident. On the night of the incident, the accused told witnesses and police that the deceased threatened him with a knife. By the time of the remand calls, after forensic DNA results concerning a screwdriver found near the scene had been served on the defence, the accused progressively adopted the position that the weapon may have been, or was, that screwdriver. Ierace J found these calls probative of whether the accused genuinely believed the deceased was holding a weapon, and of the reasoning process by which that belief was formed (at [20]).
Issue 3: Admissions about force used
Statements in several calls about the accused punching the deceased in the mouth (resulting in a tooth lodging in his hand) were found relevant to where on the deceased's body the accused struck him and the degree of force the accused believed he was applying (at [21]). A statement in call 17 about kicking the deceased was similarly found relevant to the circumstances and consequences of that kick (at [22]-[24]). The accused's evolving and sometimes contradictory accounts across multiple calls about what he did and did not recall were found relevant to his actual state of mind at the time he used force (at [33]).
Issue 4: Consciousness of guilt and prior statements
The Crown sought to rely on certain statements in the calls as lies constituting consciousness of guilt under Edwards. Ierace J found that some statements in the calls were not admissible for that purpose because the accused was merely repeating positions already advanced to witnesses and police on the night of the incident, positions that remain contested but that do not represent different positions by the accused in the calls. Those statements do not add to the Crown case absent the calls (at [9]). The court expressly declined to determine at this stage whether the statements made on the night are themselves capable of constituting consciousness-of-guilt lies. A statement in call 22 in which the accused denied knowing he had knocked the deceased's mirror off was found capable of constituting an implied admission that he was aware the car chase had begun in Gregory Street, contradicting his earlier denials and his account on the night (at [27]).
Issue 5: State of mind
A statement in call 18, in which the accused indicated that because the deceased had not let him walk away he was entitled to "flog" him, was found relevant to the accused's state of mind at the time he used force and was therefore admitted (at [34]-[35]).
Orders Made
- Edited excerpts of the following 19 calls in voir dire exhibit G are admissible in the trial: Calls 1, 2, 3, 6, 8, 9, 10, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.
Key Takeaways
- Remand phone calls made with advance notice of recording are not excluded on that basis alone; relevance to a fact in issue under s 55(1) of the Evidence Act 1995 (NSW) remains the operative test for admissibility (at [1]-[9]).
- Where a statement in a phone call merely repeats a position already taken by an accused to witnesses or police, and that position is not conceded by the defence at trial, it does not add to the Crown case sufficiently to constitute a different account capable of supporting a consciousness-of-guilt inference under Edwards (at [9]).
- An accused's progressive adoption, in recorded calls, of a new version of events following receipt of forensic evidence can be probative of whether that version reflects genuine belief or post-hoc reasoning, making it relevant to the fault element in issue (at [19]-[20]).
- Changing and internally inconsistent accounts given across a series of remand calls about the extent of force used and the degree of recollection may collectively be relevant to the accused's actual state of mind at the time of the use of force (at [33]).
- Parts of calls admitted only to provide context to admissible portions are not to be used for any other purpose (at [38]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) , ss 23A, 421
- Evidence Act 1995 (NSW) , s 55(1)
Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63