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. The screwdriver calls 1. The Crown case is that the deceased was unarmed when he confronted the accused, and that the accused did not believe otherwise. The accused's account that the deceased threatened him with a knife 1. By way of background, I note that immediately following the incident, which occurred on the driveway and at the front of the accused's place of residence between about 6.40pm and 6.55pm, the accused alleged to witnesses, and later that night to police, that he punched and kicked the deceased because the deceased had threatened him with a knife. The Crown tendered on the voir dire the transcript and audio of a 000 call made by a neighbour, Clancey Irvine, who was positioned at the time alongside the deceased while his head was in the vicinity of a drain in the gutter. Members of Ms Irvine's family were tending to the deceased, who was unconscious at the time. The accused was also nearby. The defence concedes that in the background to the call the accused can be heard, apparently addressing those assisting the deceased, saying: "Mate that knife's in the bottom of there". [1] One of those tending to the deceased at this time, Joel Cooper, gave evidence that the accused claimed that the knife used against him by the deceased had "gone down the gutter". [2] No knife was located at or near the scene of the incident, or in the drain. 2. By the time of the formal recorded interview of the accused by police that commenced at 5.11am the following morning, the accused's account had changed. He said the deceased "jumped out with the, you know, I don't know what the fuck it was. First thing I thought in my head was a knife, just because I know what it's like around here and shit." When asked what it looked like, he said: "It was dark. I couldn't really see much, you know what I mean? I could see this big dude coming at me swinging something". [3] The location of a screwdriver 1. On the night of the incident, at 8.33pm, [4] police located a screwdriver on a patio alongside the front door of the residence (the screwdriver) which appeared to have blood on the handle. During the formal interview of the accused in the early hours of the following morning, the accused was asked about the screwdriver and professed no knowledge of it or why it would have been near his front door. He said the deceased had not been at the front door. He was not told that there appeared to be blood on it. 2. A forensic examination of the parts of the handle of the screwdriver where there did not appear to be blood (the results of which are in evidence in the trial (Ex P)), located DNA in two locations that, upon comparison, led to the following expert opinion: [5] "The major contributor to this mixture has the same profile as [the deceased]. [The accused] cannot be excluded as the minor contributor to this mixture." 1. Testing of the handle for fingerprints yielded inadequate detail for a comparison with the prints of the accused and deceased. The calls referring to the screwdriver 1. It is apparent from the content of the calls that at some point the accused became aware of the results of the forensic examination, doubtless by way of the service of the forensic reports on the defence. In seven of the calls (calls 1, 6, 13, 14, 16, 19 and 20), the accused refers to the nature of the weapon that he says he believed the deceased was holding, in particular, that it was, or may have been, the screwdriver (the screwdriver calls). In gaol call 13, the accused stated that he had the screwdriver after the deceased threatened him with it and threw it away, and that he then went looking for it but could not recall where it was. [6] 2. In gaol call 1, on 20 August 2021, the accused is heard to state to his father that the weapon with which he was allegedly threatened by the deceased may have been the screwdriver. In the next and subsequent calls that touch on that subject, he refers to the DNA results and adopts the position that the weapon was, in fact, the screwdriver. 3. In my view, the screwdriver calls are probative of a fact in issue, namely, whether the accused in fact believed that the deceased was holding a weapon in his hand at the time that the accused used force, which is relevant to the issue of whether he believed at the time that the use of force was necessary to defend himself. To the extent that the defence suggests that the screwdriver is not excluded as possibly the weapon used by the deceased, as alleged by the accused, the screwdriver calls shed light on the accused's process of reasoning by which he concluded that it may have been, or was, a weapon that the deceased used to threaten him. References to the accused punching and kicking the deceased 1. The evidence in the trial includes photographs of the back of the accused's hands which were taken shortly after the incident. Both hands have a laceration in the area of his knuckles. The back of his right hand appears to be swollen in the area of the laceration. In two of the calls (calls 2 and 6), the accused referred to punching the deceased to his mouth and, as a result, that one of the deceased's teeth had become lodged in the accused's hand. Whether a tooth in fact lodged in the accused's hand or not, this assertion is relevant to where on the deceased's body the accused punched the deceased and the accused's belief as to the degree of force that he used in the punch or punches to the deceased's mouth. 2. In gaol call 17, the accused said: [7] "… that's what I'm in now for … is like I threw like two fuckin', I threw, like, two straights and then he leant down and I jumped and I threw the biggest kick I've ever thrown in my whole life and it just ended, like lights out old mate … cold, you know what I mean, just see ya later, that was it." 1. This is relevant to the circumstances of a kick by the accused to the deceased, the degree of force used in that kick and the immediate consequences of it. 2. Those aspects of calls 2, 6 and 17 are admissible for those reasons. Whether there was a collision and the route taken to the accused's residence 1. A fact in issue is whether the accused believed that the deceased following his vehicle, and confronting him at his residence, was without justification or a rational explanation, thus contributing to his fear of being attacked. On the evening of the incident, the accused maintained to neighbours and police that the deceased had followed him and confronted him for no apparent reason. He told police that the chase commenced in Mitchell Street. The Crown case is that the accused knew that the deceased pursued and confronted him because he had side-swiped the driver's side mirror of the deceased's vehicle in Gregory Street, South West Rocks, and had not stopped after the accident. The deceased immediately pursued him from that location. 2. In gaol call 3, the accused noted the specific prosecution contention that the deceased had chased him along Gregory Street, and denied it. [8] In call 22, by which time the accused was aware of the prosecution theory concerning the alleged motive for the deceased to chase him (that the accused had smashed the driver's side mirror of the deceased's car as the deceased sat in the driver's seat, in Gregory Street), he denied any knowledge that he had knocked the deceased's mirror off as he drove past: "His mirror was, his mirror wasn't attached to his car, so … apparently I must have knocked it off, that's what they reckon. I can't remember knocking his fuckin' mirror off." 1. At the same time, this is also capable of being understood as an admission that he could have done so, which is an implied admission that at the time of the incident, he was aware that the chase had also occurred in Gregory Street, not in Mitchell Street, as previously alleged by him. Other uncontradicted evidence in the Crown case (including imagery downloaded from CCTVs in Gregory Street and elsewhere) objectively establishes that the accused passed the deceased's car in Gregory Street and that the chase commenced at that point. The implied admission in call 22, by contradicting the accused's previous denial in call 3 that the route of the car chase included Gregory Street, and the claims on the night that it started in Mitchell Street, adds to that evidence by suggesting that the accused knew his earlier claims about the deceased's ostensibly irrational pursuit and confrontation were false. The accused allows for the possibility of him being responsible for uses of force against the deceased that he does not recall, when he is made aware of the existence of an audio recording of the incident 1. The accused repeatedly maintained to neighbours and police that the extent of his use of force against the deceased was two punches and one kick. In some calls, of which call 9 is an example, by which time he was aware of the existence of an audio recording of the incident that was captured by a nearby CCTV, the accused stated that his memory of what occurred is imperfect but that the deceased said that he was going to kill him: [9] "I can barely fucking remember how it all, it all happened in, like, a fuckin', legit, a blink of a fuckin' eye, like … even now, now trying to think about it, like, fuck. But he jumped out … of the car … and said he was gunna kill me. You know? I screamed for help, so there's all these things that are on my side." 1. The accused added that he needed to "listen to [the CCTV] first". [10] 2. In call 20, by which time the accused had heard the audio of the confrontation, he conceded that he may have kicked the deceased while the deceased was on the ground, including by kicking him on his chest, but he did not recall. Because "I was in a state of … fear, and shock, and I was scared for my life". [11] 3. In call 21, the accused said that he recalled that he knocked out the deceased, but the deceased "jumped back up" and "the assault continued because I feared for my safety. I say I have no recollection of how many punches were thrown apart from the first few". Later in the call, the accused said: "I can't even remember him … getting' up" and, later again, "He … went to get back up. We had another altercation". 4. In calls 22 and 23, the accused referred to not recalling the deceased getting back up. In call 24, the accused said he could remember the deceased "goin' to get up, and I thought I was gunna get attacked again, and then I blacked out". [12] In call 25, the accused said he "threw a few punches and that was all I can remember". 5. In my view, these edited calls, in particular, the accused's changing accounts of what he did and did not recollect, are relevant to the issue of what the accused believed at the time of his use of force. The accused referred to the incident in terms of initially avoiding confrontation but if that is not possible, to use force 1. In call 18, in a conversation with his father, the accused suggested that his attitude at the time of the incident was that since the deceased did not let him "walk away", he was entitled to "flog" him: [13] "I thought about your exact words, You walk away, you walk away, you walk away, you walk away, and then if you (sic) don't fuckin' let you walk away, you flog 'em, and then you say look, you didn't let me walk away. Look what the fuck's happenin' now. And I walked away, I walked away I walked away, I walked away he got a hidin'." 1. This call is relevant to the accused's state of mind at the time he used force against the deceased and is therefore admissible. Passages sought to be relied upon by the accused 1. Some parts of the calls are tendered by the Crown at the request of the accused. In call 6, at page 60, in a conversation with one of his brothers, the accused referred to their father being stabbed as something he had not wanted to happen to him, concluding: "I tried to walk away, bruh, tried to walk away, tried driving away. This cunt just followed me. Followed me and followed me, and followed me". [14] I note the similarity between this call and part of call 18, quoted above. 2. The Crown sought to tender call 10 in furtherance of its case. I considered it not to be probative of a fact in issue and thus not relevant and admissible, but the Crown was content to admit it at the request of the defence. On the call, the accused, having listened to the audio of the confrontation, [15] can be heard relating his understanding of the audio ("I'm screaming out saying that I fear for my safety the whole time, pretty much"), adding: "Like, I was scared you know". [16] Generally 1. I direct myself that parts of the calls that are in the exhibit only to give context to the parts that are to be admitted into evidence are to be disregarded for any other purpose. Orders 1. I made the following order on 9 October 2024: (1) 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. ********** Endnotes 1. VD Ex B 6.7. 2. T101.33. 3. Ex GG A.68. 4. VD Ex C. 5. Ex P, page 14, (28). 6. VD Ex G 123.5. 7. VD Ex G 158.4. 8. VD Ex G, 31.5. 9. VD Ex G, 92.5. 10. VD Ex G, T93.2. 11. VD Ex G, T193. 12. VD Ex G, T227.2. 13. VD Ex G, T170.10. 14. VD Ex G, 60.1-60.5. 15. Ex G1. 16. VD Ex G 100. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2024