Fuller v R [2021] NSWCCA 194

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v R [2021] NSWCCA 194 Hearing dates: 19 February 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Before: Johnson J at [1]; Price J at [171]; Davies J at [172]. Decision: 1. Extend time to 13 July 2020 for the filing of a Notice of Appeal. 2. Refuse the Applicant leave to appeal against conviction. Catchwords: CRIME – appeal against conviction – murder – applicant pleads guilty in 2016 to murder and sentenced for offence – applicant's legal representatives obtain psychiatric report in 2015 before entry of plea – 2015 report indicates that defence of mental illness and partial defence of substantial impairment not available to applicant – 2019 psychiatric report indicates that partial defence of substantial impairment was available to applicant – application for extension of time to appeal against conviction – principles to be applied on appeal against conviction following guilty plea – claim that 2019 psychiatric report constituted fresh evidence – whether fresh evidence or new evidence – 2019 psychiatric report based substantially upon new account provided by applicant – new account of applicant not credible or capable of belief by a jury acting reasonably – miscarriage of justice not demonstrated – extension of time granted – leave to appeal against conviction refused Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Cases Cited: Bikic v R [2002] NSWCCA 227 Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Kanakaradnam v R [2018] NSWCCA 282 Ke v R [2021] NSWCCA 177 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 MRW v R [2011] NSWCCA 260 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Chiron (1980) 1 NSWLR 218 R v Fuller [2016] NSWSC 815 R v Fuller (No. 2) [2017] NSWSC 1351 R v Maltese (2004) 150 A Crim R 97; [2004] NSWCCA 408 R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 Samandi v R [2020] NSWCCA 217 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Xie v R [2021] NSWCCA 1 Texts Cited: --- Category: Principal judgment Parties: Owen Junior Fuller (Applicant) Regina (Respondent) Representation: Counsel: Mr S Odgers SC (Applicant) Ms HR Roberts (Respondent)