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." The appeal to the Court of Criminal Appeal 6 An appeal was lodged to the Court of Criminal Appeal. The Notice of Appeal raised two issues: · First, were the verdicts inconsistent? · Secondly, was the trial Judge's direction on the delay in making a complaint adequate? 7 The matter came before the Court on 26 September 2001 (Heydon JA, Wood CJ at CL and Carruthers AJ). Mr Segal of counsel, appearing for Mr Fuller, foreshadowed an application for an adjournment. The transcript on appeal is a précis of what was said. According to that précis, the Court was told the following: "Mr Segal advised that in June or July at Glen Innes prison a woman by the name of Gloria Rudder, a Kempsey local, who knew the parties, came to visit the appellant and told him that it had been reported to her that Julie, the complain(ant) in these proceedings, had conversations with two other people, namely Kathy Donnelly, some sort of distant cousin, and Donna Rudder, to the effect that prior to going to the police the complainant had said, what the appellant believed, were words to the effect, 'I'm going to make false complaints against the appellant in order to get money.' The appellant further believed the complainant said to Kathy Donnelly and Donna Rudder words to the effect Lynette Donnelly and the complainant had put their heads together to invent a false story. Therefore, submitted Mr Segal, there was fresh and knew (sic) evidence. Further, the appellant says that the complainant asked Kathy Donnelly to lie about evidence which never existed." 8 The Court determined that it would deal with the two grounds raised in the Notice of Appeal, preserving the appellant's rights to pursue the matters foreshadowed by Mr Segal. The Court then heard argument. It unanimously dismissed the appeal in relation to the grounds set out above (R v Fuller [2001] NSWCCA 390). The fresh Notice of Appeal 9 An Amended Notice of Appeal was lodged. In substance it raises two issues: · First, that there was a conversation between the complainant and Ms Debbie Rudder which is fresh evidence, the absence of which at the trial deprived the appellant of a significant possibility of acquittal. · Secondly, that the appellant was also deprived of the opportunity of raising good character. Certain other charges alleging sexual misconduct were then pending against him. After the trial, no evidence was offered on the other charges and the appellant was acquitted in respect of those charges. Ground 1: Fresh evidence 10 In view of the serious nature of the allegations made on behalf of the appellant to the Court of Criminal Appeal, the Director of Public Prosecutions wrote to Det Snr Const Rutledge, the police officer in charge of the investigation. Det Rutledge was provided with an outline of what had been said to the Court, and asked to obtain statements. He interviewed Ms Debbie Rudder, the daughter of Mrs Gloria Rudder, one of the persons said to have been the source of the statements passed on to the appellant. Det Rutledge made a note of his conversation with Ms Rudder. The note, relevantly, is in these terms: "'Julie Donnelly phoned me up at Willawarrin at home. It was around the time that 'Buster' Donnelly had made a complaint to the police about Terry Fuller.' I said 'Was there any conversation about her making a false statement about Terry?' She said, 'There was just a general conversation. She spoke about 'Darly' (Lynette Donnelly), accusing Terry of sleeping with Julie. Julie said that she had slept with Terry. She said that 'Darly' had been accusing her of it, but she didn't care. She didn't say anything about making a false accusation to the police. She was just voicing her opinion about it.' I said, 'Was there any mention of money?' She said, 'She mentioned what she could get out of it, she would get out of it. She didn't mention money. She may have meant satisfaction.'" 11 The police also obtained a statement from Mrs Gloria Rudder. Mrs Rudder confirmed that she had visited the appellant at the Glen Innes Correctional Centre in June 2001. Others present during the visit included Mr Clifford Fuller, referred to as "Buzz". According to Mrs Gloria Rudder, "Buzz" made the following statement to the appellant in her presence (referring to Debbie Rudder, her daughter): "'Debbie has told me that she has had a phone call from Julie Donnelly and the phone call was before you were charged. The reason that she slept with Terry, was to get back at Lynette because she was sick and tired of Lynette accusing her of having an affair all those years.' That was what I remember of the conversation." 12 Mrs Gloria Rudder denied that her daughter had claimed that Ms Julie Donnelly said that she and Lynette Donnelly would invent a false story to get money from the appellant. 13 The solicitors for the appellant also filed a number of affidavits. They included an affidavit of Ms Debbie Rudder of 21 December 2001, which is in these terms: "1. That I am 30 years of age and am the 2nd cousin of Julie Donnelly, the complainant in the sexual assault allegations against Terry Fuller. I have known Julie Donnelly for many years. 2. I recall that before Terry Fuller was charged by the police in relation to those allegations I spoke to Julie on the telephone. This was about 2 to 3 years ago and it was before Terry had been charged by the police. 3. In that conversation, the subject of Terry Fuller and Darly was mentioned. Darly is Lynette Donnelly. It came up in general conversation. 4. Julie said to me in that conversation quote 'I am sick and tired of Darly accusing me of having an affair with Terry, so I did have sex with Terry and slept with him to spite Darly.' 5. Julie also said in the same conversation quote 'I am going to get all I can get out of it.'" 14 The appellant acknowledged that the evidence put forward as "fresh evidence" falls far short of that foreshadowed on 26 September 2001 to the Court of Criminal Appeal. Should this Court, nonetheless, receive this material as "fresh evidence"? The test for fresh evidence 15 In determining whether fresh evidence should be received on appeal, the fundamental question is whether a miscarriage of justice has occurred (Gallagher v The Queen (1985-86) 160 CLR 392 per Gibbs CJ, at 395; Mickelberg v The Queen (1988-89) 167 CLR 259, per Toohey and Gaudron JJ at 301-302). What must be established is that the absence of the evidence at the trial led to a miscarriage of justice. There will be a miscarriage where there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial (Gallagher (supra) Gibbs CJ at 399, Mason and Deane JJ at 402). In Mickelberg (supra) Toohey and Gaudron JJ expressed the principle in these terms: (at 301) "In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J at p410) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the (accused).'" 16 Gibbs CJ in Gallagher (supra) identified three considerations which will guide a Court in deciding whether there has been a miscarriage (at 395/6). First, there is an issue whether the evidence could, with reasonable diligence, have been produced by the accused at the trial. That is not an inflexible requirement, especially in circumstances where, as here, the investigation by the appellant is made the more difficult by reason of significant delay in making a complaint. Secondly, the evidence sought to be adduced must be "credible", "cogent", "relevant", "plausible", or at least capable of belief (Gallagher (supra) Gibbs CJ at 395; Mickelberg (supra) Toohey and Gaudron JJ at 301). Thirdly, if the evidence is credible, and accepted, might it reasonably have led the jury to return a different verdict? The Crown case against the appellant 17 The Court of Criminal Appeal, in dealing with the previous issues, set out at some length the transcript relevant to counts 6 and 6A (R v Fuller (supra) pages 1 to 15). The appellant was, between 1984 and 1987, the defacto husband of Ms Lynette Donnelly (also known as "Darly"). Ms Lynette Donnelly had a sister, Karen Murray. The complainant, Julie Donnelly, was the daughter of Ms Karen Murray. The sisters lived near each other in the same street. From time to time Ms Julie Donnelly (the complainant) slept at her aunt's home on a mattress in the lounge room. She said that she had done so on a particular occasion when she was 14 or 15 years old. She went to sleep at about 10.00 pm. She woke to find the appellant on top of her. It was still dark. However, there was some light from the television. Her nightie had been pulled up and her "knickers" pulled down. According to the complainant, the appellant forced her legs apart. He placed his hand over her mouth. He then had sexual intercourse for about five minutes. Whilst that was taking place her aunt, Ms Lynette Donnelly, walked in. The complainant's description of what then occurred was in these terms: "A. Yeah while he was still on top of me, I seen the light come on and heard the door open and my aunty was standing in the doorway and she just straight away attacked him, like 'what are you doing?' Q. Can you say what happened? A. She asked him what he was doing. Q. In what sort of voice did she say that? A. She was angry, she knew straight away what was going on, what had happened, she was calling him names, she smacked his face." 18 She added: "Q. When you saw the light go on, where was he? A. Still on top of me. Q. Had he taken his penis out of your vagina at that time? A. He jumped off really quickly once he realised my aunty was standing in the doorway and told her he was just talking to me." 19 A short time later, the complainant's step-father arrived and took her home. 20 Ms Lynette Donnelly gave evidence in similar terms. She said this: "A. I woke up around 4.30 and Terry wasn't in the bed so I thought I'd go and have a look for him and I walked from the main bedroom through the hall to the lounge room and the lounge room door was closed and I opened it and the lounge room was in darkness so I turned the light on. Q. What did you see? A. I saw Terrence lying on top of Julie, between her legs, with no clothes on. Q. Who had no clothes on? A. Terrence had no clothes on. He had, when he stood up his underpants were hanging at his ankles and Julie was uncovered and she had no clothes on. Q. Did you say anything? A. I said, 'what do you think you're doing?' He said, 'nuthin' I'm only talking to her' and he repeated his self and I told (him) he was a bastard and I smacked his face." 21 Ms Lynette Donnelly said that she left the house. She went to the home of her sister, the complainant's mother. She told her what she had seen. The complainant's step-father then went to bring the complainant home. 22 Mr John Murray (the step-father) gave evidence. He confirmed that Ms Lynette Donnelly arrived during the night. He was not a party to the conversation which then took place between his wife and her sister. He heard the appellant's name and that of the complainant. He said that he then went to the appellant's home to collect the complainant. 23 The appellant was interviewed by the police. He denied having had sexual intercourse with the complainant, as alleged. He repeated that denial in evidence before the jury. He also denied that his wife, Ms Lynette Donnelly, had walked into the lounge room whilst he was on top of the complainant. He further denied that she had slapped his face. He did recall an occasion when the complainant's step-father, Mr John Murray, had come to the house to collect Julie. It was in 1988 (by which time the complainant was 16). She was in the lounge room in a sleeping bag with his friend, Mr Ian Duffy. He had entered the lounge room, approaching his friend for a cigarette. He was crouched down beside the sleeping bag when his wife, Lynette, entered the room. She asked him what he was doing. She then left the house. It was later that John Murray called and took the complainant home. 24 Mr Ian Duffy gave evidence. He said that he slept with the complainant in 1988, and had intercourse. He recalled the appellant coming into the lounge room whilst he was with the complainant in a sleeping bag. He asked for a cigarette. Mr Fuller's wife, Lynette, entered the room. She said: "What are you doing down there?" No-one responded. His wife then left the house. Later the complainant's step-father arrived. The complainant got dressed and left. Was there a miscarriage? 25 Ms Debbie Rudder gave evidence. She was cross examined. Her evidence in some respects lacked detail, and was vague. She, nonetheless, adhered to her account that Ms Julie Donnelly had rung her, and said the words to which she deposed. 26 Ms Julie Donnelly was also called. She gave evidence in a forthright manner. She denied the conversation attributed to her by Ms Rudder. She was not shifted from that position when cross examined. Indeed, she insisted that, notwithstanding the jury verdict, she had been raped by the appellant. 27 Making the assumption, for the purposes of analysis, that the account of Ms Debbie Rudder was not available at the time of trial, and is credible, would that evidence, if accepted, have led the jury to a different verdict? Is there a significant possibility, based upon that evidence, that the jury, acting reasonably, would have acquitted the appellant? I do not believe that there is. 28 The Court of Criminal appeal, in dealing with the original grounds of appeal, made the following observations upon the evidence presented at trial: (Heydon JA at para 22) "22. Count 6A required only proof of sexual intercourse. The unshaken testimony of Mrs Donnelly as to the state of undress of the appellant and the complainant, their relative positions, and the rather incredible statement of the appellant that he was only talking to the complainant, may not of itself have proved sexual intercourse beyond a reasonable doubt. But it unquestionably and very powerfully confirmed that part of the complainant's evidence which complained of sexual intercourse, and made it safe to act on it. The trial judge said to the jury in relation to the defence argument that even if Mrs Donnelly's evidence was accepted it did not necessarily indicate sexual intercourse: 'Well that is a matter for you. You have Lynette's evidence that the accused was naked, on top of Julie, who was naked. And it is a matter for you how you deal with that.' It would be strange if the jury had not been satisfied that sexual intercourse had taken place." 29 Heydon JA added: (para 24) "... The Crown evidence on Count 6A did not contain discrepancies, inadequacies, taints or any want of probative force in such a way as to suggest to this Court a significant possibility that an innocent person has been convicted. ..." 30 Ms Rudder's evidence, if accepted, amounts to an acknowledgement by the complainant of consensual intercourse with the appellant. The conversation, as recounted by her, does not specify when intercourse took place in relation to the dates in the charges. Assuming intercourse occurred in the period covered by the charges, Ms Rudder's evidence, if accepted, would simply take away one aspect of the complainant's account, namely, that what happened was without her consent. That was an aspect rejected by the jury in any event. The accused was found not guilty on Count 6, in which the Crown was obliged to prove the absence of consent. On the other hand, the evidence of Ms Rudder, if accepted, was consistent with the complainant's account that she had sexual intercourse with the appellant. The Crown, in respect of Count 6A, was simply obliged to prove intercourse with a person under the age of 16 years. 31 For the evidence of Ms Rudder to give rise to any possibility of miscarriage in respect of Count 6A, the statement must be read as implying intercourse for the first time at some later date, after the period covered by the indictment. That was a construction urged by the appellant, especially because of the reference to spite. I believe, however, that such a construction is reading altogether too much into the words attributed by Ms Rudder to the complainant. 32 There is a further aspect to Ms Rudder's evidence. She also attributed to the complainant the following words: "I'm going to get all I can get out of it." 33 Those words do not, to my mind, suggest that the complainant had therefore provided a false account. They are consistent with someone who has been wronged, and recognised an opportunity to obtain compensation. 34 I do not believe, therefore, that, even accepting the words of Ms Rudder, depriving the jury of such evidence gave rise to a miscarriage of justice. Her account of her conversation with the complainant does not suggest a significant possibility that a jury, acting reasonably, would have acquitted the appellant, had they known of such evidence. 35 I would reject Ground 1. Ground 2: Character evidence 36 Two sets of charges were preferred against Mr Fuller. He was first charged after allegations by Mr Stephen Donnelly. He was later charged as a consequence of the complaint by Ms Julie Donnelly. An order was made that there should be separate trials, back to back. The charges involving Ms Julie Donnelly would proceed first. These are the matters dealt with in this appeal. The indictment was presented on Monday 9 October 2000. Ms Flannery of counsel appeared for Mr Fuller. Ms Flannery has sworn an affidavit in which she said this: "4. I did not lead evidence of the appellant's good character in the trial ... as I believed the Crown would lead evidence of the outstanding allegations made by Stephen Donnelly." 37 The jury retired to consider its verdict on Thursday 12 October 2000. The same day, the Crown presented the indictment based upon the complaints of Mr Stephen Donnelly. A fresh jury was empanelled. The following day, Friday 13 October 2000, the Crown offered no evidence in support of the indictment. The jury therefore found the appellant not guilty on each count. Later the same day the jury in the first trial returned its verdict. The appellant was convicted in respect of Count 6A. 38 Ms Flannery, in her affidavit, said that, but for the outstanding allegations concerning Mr Stephen Donnelly, she would have raised the good character of the appellant in the trial involving Ms Julie Donnelly. 39 The following submissions are made in these circumstances on behalf of the appellant: "The appellant suffered a miscarriage of justice and did not receive a fair trial by virtue of procedural unfairness ..." 40 Counsel added: "It is acknowledged that the prosecution may have diverse reasons as to why a matter does not proceed. It is submitted that the injustice to the appellant is that the knowledge that the 'Stephen' matter was not continuing came just after the 'Julie' trial and not before it. The appellant was therefore denied the opportunity to properly consider his position at the time of trial." 41 It is not suggested that the Crown deliberately arranged the order of the trials, knowing that no evidence would be offered in the second trial. The Crown filed an affidavit outlining the circumstances which led to it offering no evidence. The complainant, Stephen Donnelly, said at the end of the first day that he did not believe he could give evidence in front of the jury. He, therefore, did not wish to proceed. 42 The appellant was born on 2 February 1956. He was 44 years old at the time of his trial. He had a conviction for possession of Indian hemp in December 1975. He was placed upon a recognisance for 18 months. He had a further conviction for the same offence in April 1984. He served 100 hours of community service. It was open to the appellant, notwithstanding these convictions, to assert good character "in a particular respect" (s110 Evidence Act 1995), namely that he had no convictions for sexual offences. 43 The complaint now made by the appellant was not included in the Notice of Appeal. It was not raised when the appeal on that notice was heard by the Court of Criminal Appeal on 26 September 2001. It was first identified in the Amended Notice of Appeal of 4 February 2002. Leave is therefore required (Rule 25A Criminal Appeal Rules, 1952). The Crown opposes the granting of leave. Leave should only be given if that is necessary to avoid a miscarriage of justice. 44 The affidavit of Ms Flannery does not suggest that she approached the Crown to determine its attitude to the raising of character. Whatever its attitude, leave was required before the accused could be cross examined on character, including the allegations in the Stephen Donnelly trial, which was then pending (s112 Evidence Act, 1995). In giving leave, the Judge would be obliged, amongst other things, to consider issues of fairness to the accused and the Crown (s192(2)(b)). It would have been open to counsel for the appellant to seek a ruling from the trial Judge that, if character were raised, whether the accused could then be cross examined on the allegations which were the subject of the next trial. That was not done. 45 However, ignoring these issues, can it be said that there has been a miscarriage of justice through the inability of the accused to inform the jury that he had no convictions for sexual offences? 46 That issue requires an appreciation of the strength of the Crown case, so that the impact of the additional evidence, favourable to the accused, might be judged in context. Knowing that the appellant had no convictions for sexual offences, was there a significant possibility that a jury, acting reasonably, would have acquitted the appellant had that evidence been added to other evidence relevant to Count 6A? I do not believe that there was such a possibility. I therefore do not accept that there has been a miscarriage of justice. There was, as I have said, a strong case against the appellant on Count 6A. Unlike the other counts, the complainant's account in respect of Count 6A was corroborated in a number of important respects by that of her aunt. It is unsurprising that the jury rejected the suggestion, arising from the evidence of the accused and his friend, Mr Duffy, that the appellant's wife, Ms Lynette Donnelly, was mistaken in what she believed that she saw. That suggestion involved a number of difficulties. First, Ms Lynette Donnelly fixed the time of the incident by reference to the age of her child, who was then three months. It was June or July 1986 (when the complainant was 14 or 15), not 1988. Secondly, the detail of Ms Lynette Donnelly's description corresponded exactly with that of the complainant. The appellant was lying on top of the complainant. Both were naked. She slapped his face. She described a scene which one would not be likely to forget or confuse with something as unremarkable as that described by the appellant and his friend, Mr Duffy. 47 There being no miscarriage, in my view, leave to add the new ground should be refused. Order 48 In the circumstances, the order I would suggest is that the appeal should be dismissed. ********** 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. 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