Regina v T J Fuller [2002] NSWCCA 121

New South Wales Court of Criminal Appeal

CITATION : Regina v T J Fuller [2002] NSWCCA 121 FILE NUMBER(S) : CCA 60782/00 HEARING DATE(S) : 03/04/02 JUDGMENT DATE : 17 April 2002

PARTIES : Regina Terrence James Fuller (App) JUDGMENT OF : Hodgson JA at 1; Greg James J at 2; Kirby J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0170 LOWER COURT JUDICIAL Garling DCJ OFFICER :

COUNSEL : G E Smith (Crown) P Segal (App) SOLICITORS : S E O'Connor (Crown) H Scheiger & Assocs (App) CATCHWORDS : CRIMINAL LAW - Appeal against conviction - Fresh evidence - Leave to add ground of appeal - Sequence of trials meant accused could not raise character LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 R v Fuller [2001] NSWCCA 390 CASES CITED: Gallagher v The Queen (1985-86) 160 CLR 392 Mickelberg v The Queen (1988-89) 167 CLR 259 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60782/00

HODGSON JA GREG JAMES J KIRBY J

Wednesday 17 April 2002 REGINA v Terrence James FULLER Judgment 1 HODGSON JA: I agree with Kirby J. 2 GREG JAMES J: I agree with Kirby J. 3 KIRBY J: Terrence James Fuller (the appellant) stood trial before Garling DCJ and a Jury in October 2000 charged with various sexual offences. The charges were based upon allegations by Ms Julie Donnelly. Ms Donnelly told police in February 2000 that at various times between 1984 and 1987 (when she was between 12 and 15 years old) the appellant had sexual intercourse with her, without her consent. 4 The charges related to the incidents identified by the complainant, and with one exception (count 8), were framed in the alternative. Counts 1 to 7 alleged sexual intercourse without consent with a person under the age of 16 years (s61D(1) Crimes Act, 1900). Counts 1A to 7A alleged, in the alternative, unlawful carnal knowledge with a person under the age of 16 years (s71 Crimes Act, 1900). 5 When Ms Donnelly gave evidence, she did not refer to the incident which was said to give rise to counts 7 and 7A. A verdict was directed in respect of those counts. Thirteen counts remained, and went to the jury. The appellant was acquitted on all counts except count 6A. The terms of that charge were as follows: "(6A) In the alternative that he in the months of June or July 1986 at Kempsey in the State of New South Wales did have sexual intercourse with Julie Anne Donnelly she then being 14 or 15 years old."