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Supreme Court 12 November 2024

R v Fuller (No 4)

[2024] NSWSC 1420

Assault & violenceHomicide
CRIME MURDER TRIAL BY JUDGE ALONE VERDICT DEFENCE

Citation: R v Fuller (No 4) [2024] NSWSC 1420
Court: Supreme Court of New South Wales
Date: 12 November 2024
Judge: Ierace J

Background

The accused faced three counts arising from events on 28 July 2021 at South West Rocks, NSW: intimidating one man, murdering another, and the alternative count of manslaughtering the same victim. He pleaded guilty to the intimidation count and to manslaughter, but not guilty to murder. The Crown declined to accept the manslaughter plea in satisfaction of the murder count, and the murder charge proceeded to trial before Ierace J sitting alone.

The fatal events followed a car accident between the accused and the deceased. After the accident, the accused failed to stop. The deceased followed the accused home, where a verbal and physical confrontation ensued. The accused conceded he inflicted the fatal injury or injuries on the deceased during that confrontation.

The defence initially raised two partial defences: substantial impairment by mental health or cognitive impairment, and excessive self-defence. During the trial, the substantial impairment defence was abandoned. The sole remaining question was whether the Crown could prove beyond reasonable doubt that the accused did not believe his use of fatal force was necessary for his own defence.

  • Whether the Crown established beyond reasonable doubt that the accused did not believe it was necessary to apply the force that caused the deceased's death in order to defend himself, as required by s 421(1)(c) of the Crimes Act 1900 (NSW)
  • Whether the accused's stated belief that he feared for his safety was genuine, or was fabricated for tactical reasons
  • Whether any belief in the need for self-defence extended to the fatal injury or injuries specifically, including conduct after the deceased was rendered unconscious

Decision

The sole issue at trial was the subjective belief element of excessive self-defence under s 421 of the Crimes Act 1900 (NSW). Excessive self-defence reduces murder to manslaughter where the accused believed the force was necessary for self-defence, even though that belief was not objectively reasonable. The accused had already conceded that his conduct was not a reasonable response in the circumstances as he perceived them, meaning the partial defence to manslaughter was in play only if a genuine belief in the necessity of the force could be established.

Ierace J rejected the existence of any such belief. The evidence, including CCTV audio recordings and telephone calls made by the accused while on remand, revealed that the confrontation was driven entirely by anger. The accused had been in an aggressive mood beforehand, as demonstrated by his earlier intimidation of another man. When the deceased followed him home and confronted him on his property, his anger escalated into what the judge described as sustained, focused rage, which continued even while the deceased was unconscious and despite the brief presence of a third party at the scene.

The accused's remand calls included concessions that he had stomped and kicked the deceased, conduct consistent with the physical evidence on the deceased's clothing. His expressions of fear for his safety during the confrontation were found to be false and made for tactical reasons. The court accepted that the accused's established tendency to falsely claim fear for tactical purposes supported this finding, though the finding was independently established by the surrounding evidence in any event.

The judge was also satisfied beyond reasonable doubt that the accused did not act out of any belief that the force was necessary to protect his mother. The accused knew she was not home at the time and was not expected back until later that evening.

Orders Made

  • The accused was found guilty of the murder of Mark Tozer on 28 July 2021 at South West Rocks, NSW.

Key Takeaways

  • The subjective belief element of excessive self-defence under s 421(1)(c) of the Crimes Act 1900 (NSW) requires that the accused genuinely believed the fatal force was necessary for self-defence; the Crown's task is to negate that belief beyond reasonable doubt.
  • Where the totality of the evidence, including audio recordings, post-offence conduct, and the accused's own admissions, is inconsistent with a genuine belief in the necessity of defensive force, the partial defence of excessive self-defence will not succeed.
  • A finding that an accused has a tendency to fabricate claims of fear for tactical purposes can support the rejection of a self-defence belief, though such a finding need not be the sole basis for the conclusion.
  • Continued violence after the deceased became unconscious, and conduct that escalated rather than ceased during the confrontation, was treated as evidence that the motive was anger rather than any belief in the need for self-defence.
  • In a judge-alone trial, the court is required by s 133(3) of the Criminal Procedure Act 1986 (NSW) to state formal directions of law; Ierace J set these out explicitly in the verdict judgment to make the legal framework transparent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 23A, 419, 421
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), s 133(3)
- Evidence Act 1995 (NSW), ss 32(3), 38

Cases:
- R v Fuller (No 1) [2024] NSWSC 1206
- R v Fuller (No 2) [2024] NSWSC 1208
- R v Fuller (No 3) [2024] NSWSC 1294
- R v Katarzynski [2002] NSWSC 613
- R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440