R v Fuller (No 3) [2024] NSWSC 1294

Supreme Court New South Wales

Medium Neutral Citation: R v Fuller (No 3) [2024] NSWSC 1294 Hearing dates: 4 October 2024 Date of orders: 9 October 2024 Decision date: 17 October 2024 Jurisdiction: Common Law Before: Ierace J Decision: 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. Catchwords: EVIDENCE – Admissibility – Evidence contained in audio recordings of phone calls in which the accused was a party while on remand – Relevance of evidence to facts in issue at trial Legislation Cited: Crimes Act 1900 (NSW), ss 23A, 421 Evidence Act 1995 (NSW), s 55(1) Cases Cited: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Category: Principal judgment Parties: Rex Connor Fuller (Accused) Representation: Counsel: Mr B Costello (Crown) Mr M King (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2021/216116

JUDGMENT 1. HIS HONOUR: The defence challenges the admissibility of edited audio recordings of 24 phone calls in which the accused was a party while on remand (the calls). The calls are sought to be adduced by the Crown on the basis that they are relevant to the remaining issues of fact in the trial, which are summarised below. On 9 October 2024, I ruled that some of the edited calls, or parts thereof, are admissible. These are my reasons for that determination. 2. The accused was, but is no longer, relying upon the partial defence of substantial impairment (s 23A of the Crimes Act 1900 (NSW)). He continues to rely upon the partial defence of excessive self-defence, pursuant to s 421 of the Crimes Act. He concedes that he caused the deceased's death by the application of force and, by his offer of a plea to manslaughter, that it was not a reasonable response in the circumstances as he perceived them at the time. In order for the accused to be found guilty of murder, it remains incumbent upon the Crown to prove beyond reasonable doubt that the accused did not believe it was necessary to apply that force in order to defend himself: s 421(1)(c) of the Crimes Act. 3. The calls were made to the accused's family members and friends, between 20 August 2021 and 11 August 2023. It is accepted by the defence that each call commenced with a standard audio warning to the parties to the call that it would be recorded. Initially, the Crown proposed to rely on 25 edited calls, but following discussions between the parties, the Crown withdrew one call altogether (call 11) and further edited the content of the other calls, including removing discussions of legal advice received by the accused, which has obviated some of the initial bases of objection by the defence. 4. The Crown submitted that in the calls the accused made claims and admissions as to disputed circumstances surrounding the incident, some of which constitute lies that are capable of being treated as consciousness of guilt and thus contribute to the evidence upon which the Court may assess the accused's state of mind at the time of the application of force. 5. The Crown submitted, in writing, that its case includes evidence of four sets of lies told by the accused arising from a consciousness of guilt, in terms of Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. Three sets were lies told shortly after the incident to neighbours and police, and to others on the calls. A fourth claim, that the deceased was, or may have been, armed with a screwdriver, was only made on the calls. The four alleged lies as to consciousness of guilt contended by the Crown are as follows: "i. The assertion by the Accused that there was no collision between his car and the deceased's car; ii. The assertion that the deceased was armed with a knife; iii. The knife was dropped in the gutter; and iv. The deceased was armed with a screwdriver that had been seized from the front porch of the house." 1. The calls also contain candid admissions by the accused that provide insight into his state of mind at the time of the incident. 2. The position of the defence, in essence, is that the calls do not contain either direct or inferential admissions, and that they lack probative value since they are not relevant to any fact in issue. Further, the four alleged categories of lies do not constitute a proper foundation to infer consciousness of guilt. 3. In the course of oral submissions, the defence further submitted that some assertions by the accused that the Crown sought to rely upon were already in evidence, or will be in evidence, through evidence of admissions to civilian and/or police witnesses in the trial; or are the subject of concessions in the defence case. An example is an acknowledgement by the accused in the calls that it was he who can be heard on an audio recording of the incident saying words to the effect "I'm scared for my own safety", which is conceded by the defence. They are thus not relevant and are inadmissible since they are not probative of a fact in issue: s 55(1) of the Evidence Act 1995 (NSW) 4. I ruled that calls 1-3, 6, 8-10, 13, 14 and 16-25 are admissible, because they are relevant to facts in issue. I was not satisfied that all of the alleged lies in the calls that the Crown will seek to rely upon in due course as lies arising from a consciousness of guilt are admissible for that purpose. In essence, the accused is captured in those parts of the calls repeating positions he first advanced to witnesses and/or police shortly after the incident, that remain matters to be established as part of the Crown case, and that are not conceded in his defence case at trial. They do not constitute different positions by the accused and do not add to the evidence in the Crown case as it stands, absent those calls. For the purpose of this application by the Crown, it is unnecessary to determine whether those statements to others on the night are capable of being regarded as lies that constitute evidence of a consciousness of guilt. 5. I was satisfied that none of the calls that I found to be admissible should be rejected in the exercise of a discretion to do so. No part of the remaining calls (calls 4, 5, 7, 12, 15) are admissible, principally because they are assertions that have been conceded by the defence; are in evidence in any event; or are not relevant to a fact in issue. 6. The calls that are admissible may be grouped according to their subject matter.