R v Fuller

(i) To threaten to "jump on a person's head", and on at least one prior occasion to carry out an act of significant violence consistent with such a statement; where none of that threatened, or carried out, conduct is 'defensive' in nature

1. The evidence in support of this alleged tendency constitutes statements concerning an incident that occurred on the Gold Coast on 31 May 2015, during which it is alleged that the accused assaulted Dylan Cooper, by stomping on his head while he was lying on the ground, thereby fracturing his mandible (the Gold Coast incident); and eight phone calls made while the accused was on remand between 29 July 2021 and 13 August 2023, in which he used the phrase that he would "jump" on a person's head (the gaol calls).
2. As to the Gold Coast incident, Mr Cooper made a statement on 29 July 2022 in which he stated, by way of background, that he and the accused had been school friends when they both resided in South Kempsey. When Mr Cooper was "maybe 18 to 20", he moved to Surfers Paradise, where he resided with the accused and some others. On the day in question, Mr Cooper was hit and tackled by a visitor, Tyson Bothur. At the time, Mr Cooper was holding some scissors that he was using to cut up some tobacco. In the struggle, Mr Cooper caused a minor injury to Mr Bothur with the scissors. Mr Cooper's version is that it was an accident. Mr Bothur yelled out "I've been stabbed". The accused then entered the room and "king hit" Mr Cooper twice. Mr Cooper continued: "I copped three elbows, four punches and got stomped full, like he held onto the bench with his hands and double … jumped on my face with both feet … I just remember copping double foot to the face and I just went out, I don't even know how long I went out for. He would've jumped on my face just once I reckon. I don't know. I can't really remember so I can't say, but I remember the one, that's it. He was doing Muay Thai at that point, he was trying to learn. I was out of it."
3. Mr Cooper said that he "woke up in hospital the next day". In a second statement, dated 27 September 2022, Mr Cooper said that he did not report the assault because the accused had been his "best mate" for 14 years but that he was now scared of him.
4. Mr Bothur's version, in a statement dated 14 October 2022, as to the assault of Mr Cooper (who he referred to as "Dyl") by the accused, is as follows: "At that point [the accused has] come flying down the stairs, we were sort of going at it and [the accused] sort of grabbed us both. I've shrugged [him] off and walked into the lounge room … It would've been 30 seconds, maybe like a minute. I've sort of gathered my shit, turned around to come back into the kitchen and yeah, Dyl was basically getting his fucking head jumped on. The kitchen was where the front door was and the bench sort of came just flush with the architrave around the door jam. So [the accused] basically kind of had his hand on the door and his hand on the bench so he could get a good jump. I only really saw one foot connect with Dyl's jaw, but that doesn't explain how much damage was done. One kick to the head. I saw one stomp to Dyl's jaw with one foot. His back was to the door, his right hand would've been on the kitchen bench, left hand on the door jam, so it would've been his right foot. His foot would've connected with Dyl's cheek and his Jawbone chin."
5. The defence submits that whether the incident occurred as alleged by Mr Cooper is a matter that would be challenged if the evidence is admitted. However, for the purposes of this application, I proceed on the basis that the evidence, taken at its highest, will be established: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 per French CJ, Kiefel, Bell And Keane JJ at [44].
6. As to the material generally relied upon for the first tendency, the Crown submitted: "The accused has, on multiple occasions, used the expression 'jump on his head' and done so with plainly aggressive intent … the 'jump on his head' expression is relevant to attributing the same words to the accused that were recorded during the subsequent violence that resulted in the death of the deceased … the use of those words, while the physical assault was occurring on the deceased, in combination with the fact that the accused has actually carried out such an act of violence in the past, is relevant to establishing that [the] accused did exactly that to the deceased; that is, jumped, or stomped, on the deceased's head. Finally, the use of that expression is relevant to the reliability and accuracy of the accused's reported admissions to neighbours, as well as the weight to be attributed to those admissions. These are all significant issues likely to be in dispute during the trial."
7. In written and oral submissions, the Crown noted that the probative value of the tendency, as demonstrated by the Gold Coast incident, includes a preparedness of the accused to jump on a person's head other than in self-defence.
8. The challenge by the defence was to the probative value of the alleged tendency, since there would be no issue at trial that the accused caused the deceased's fatal injuries, some of which were caused by the accused jumping or stomping on him, and his plea to the third count indicated an acceptance that the physical force he exerted was not a reasonable response. Similarly, as noted, it is accepted that the accused can be heard on the CCTV soundtrack saying "I'll jump on your head".

Consideration

1. In view of the concessions made by the defence and the plea offered to count 3, the only remaining fact in issue concerning the infliction of injury upon the deceased by the accused jumping on his head is whether or not it was done consequent to the accused believing that the conduct was necessary to defend himself.
2. The gaol calls are of limited value as evidence of this tendency. It is apparent from listening to them that sometimes the accused used the phrase without an actual intention to inflict any physical violence; for example, in a call with his mother, he expressed frustration at the pace of his lawyer's case preparation, complaining to his mother that if his bail application was not "sorted", he would "jump on [the lawyer's] head when I get out". There is nothing about the call to suggest that he meant that threat literally, rather than metaphorically. In the calls in which it is open to conclude that the accused was expressing a desire to inflict physical violence on a person or persons, it is not apparent from either the tone or content whether he meant physical violence of that particular type. It is not suggested that he did in fact "jump on the head" of anyone that he referred to in the context of any of the eight calls. I am not satisfied that any of the gaol calls is evidence of the tendency asserted.
3. The Gold Coast incident is evidence that the accused has previously perpetrated an act of physical violence by jumping on a person's head, where that act was not done in self-defence. The question is whether evidence of this incident, considered in the context of the other evidence in the Crown case concerning the jumping on the deceased's head, could rationally affect the assessment of the probability of the existence of the fact in issue (that it was not done in self-defence) to a significant extent.
4. In that regard, it is relevant that the Gold Coast incident is the only instance of a previous act of that nature relied upon; it is not suggested that the accused used the phrase, or words to the effect that he would "jump on" Mr Cooper's head beforehand; and the circumstances are quite different. In view of the accused not challenging the threat captured on the CCTV soundtrack and the nature and method of infliction of the injuries, in my view, the fact that he has jumped on someone's head previously does not assist the fact-finder to determine whether, in this particular instance, that technique was utilised by the accused. In other words, the level of generality of the evidence of the Gold Coast incident is not probative at all of the remaining fact in issue concerning that method of serious assault.
5. Accordingly, I would disallow the first alleged tendency.

(ii) To engage in significant threats of violence in response to minor incidents involving motor vehicles, where that conduct is borne entirely out of aggression and not fear

1. The material relied upon in support of this alleged tendency is two incidents witnessed by a former partner, Courtney Billsborough, and described in two statements by her, dated 21 June 2023 (the first statement) and 24 May 2024 (the second statement). Ms Billsborough and the accused commenced a relationship at the end of 2016. The first incident occurred "maybe in 2017 or the first half of 2018". Ms Billsborough and the accused were in a car in a shopping centre car park, waiting for another vehicle to vacate a particular parking space. Another driver, an elderly male, occupied it first, apparently not realising that she and the accused had been waiting for it. She said: "[The accused] just lost it and got out of the car and was going off at the old man. I remember thinking 'what the fuck … he's an old man' and I could tell it wasn't a deliberate act on the old man's part. [The accused] was full on yelling at the man. I do not remember the exact words but it was something about the car space and I remember him telling the old man that he was going to throw him over the side of the car park, like off the roof top of the car park. There was also a person sitting in the passenger side as well, I think she was an elderly lady but I couldn't see her well. The old man was already half out of his car when [the accused] started yapping at him. I could see the old man's legs half out of the car, they were very skinny and covered in bruises and veins … and he was slow in his movements. That's how I knew that he was really elderly. When [the accused] was yelling at him he turned back into his seat and just sat in there. I believe they did this to keep safe as they would have been too scared to get out. I could tell that the old man locked the doors of the car as I saw the car lights flash …. [The accused] was so angry that the vein in his forehead was showing."
2. The second incident occurred before July 2018, also at a supermarket carpark. "Another time [the accused] reversed his mum's car into a man's car, just tapping it. The man wanted [the accused's] details and [he] went ballistic. The man just gave up because of the way [the accused] was yelling at him telling him it was his fault for where he parked. … We had pulled over in the curb on the left-hand side directly out the front of the front doors of the shopping centre, it wasn't an actual parking spot. I don't recall the exact words that [the accused] was yelling at this man … There was only one man in the car …"
3. The Crown submitted that this tendency was relevant to the issue of whether the accused was the initial aggressor when the deceased arrived at the accused's driveway, making the initial threats such as "I'll knock you clean the fuck out" and "I'll knock your head off cunt", which would significantly undermine the genuineness of the accused's recorded statements that he was in fear.
4. The defence submits that the incident preceding the physical confrontation at the accused's driveway was not "minor", given the aggressive nature of the deceased's vehicular pursuit of the accused and the accused's claim that he believed that the deceased was armed. The factual nature of the two incidents witnessed by Ms Billsborough and the incident that led to the death of the deceased are so different as to make the tendency of little utility and therefore of little probative value.
5. Further, the initial threats are not necessarily inconsistent with self-defence, since if they were spoken by the accused, they may have been intended to discourage a would-be attacker.

Consideration

1. The evidence of both incidents, in combination, is strongly supportive of the alleged tendency. The evidence has probative value that is significant, in view of the absence of eyewitness or electronic evidence as to precisely how the violence unfolded during the incident, particularly at the outset. The fact that the two car park incidents are minor in comparison to the car chase that occurred in the lead-up to the deceased's death does not detract from the probative value of the accused grossly overreacting with acts or threats of violence or damage in the two earlier incidents. I note that the carpark incidents occurred within the previous four years of the killing.
2. The fact that the accused may have been trying to scare off the deceased by the statements attributed by the Crown to him in the early stages of the confrontation does not detract from the probative value of the evidence in determining whether it was the accused who uttered them; that is a separate issue that arises if it is established that the accused said the words.
3. Admitting the evidence would create a degree of danger of unfair prejudice, but I am satisfied that it is outweighed by its probative value.
4. Accordingly, the evidence is admissible.

(iii) To use violence, and threats of violence, in a calculated and controlled way, in responses to situations of conflict

1. The Crown initially sought to establish the alleged tendency by way of material concerning multiple incidents, however, by the conclusion of oral submissions, some incidents had been abandoned by the Crown and one had been conceded by the defence as having some relevance. Those incidents that remain for consideration include an incident involving Ms Billsborough, which occurred when she was pregnant with their child, who was born in July 2018. They were at home entertaining a visitor, who was a friend of the accused. Ms Billsborough confronted the accused, in the friend's presence about some missing lightbulbs. The accused had previously removed and modified lightbulbs in the residence to use them to ingest prohibited drugs. She said: "After [the accused's friend] went home [the accused] abused me for saying something in front of him and accused me of trying to act like I was in charge. He was furious and I could tell by the look on his face that he was about to hurt me, so I ran. I ran down the road outside our house … but he was right behind me. I only got two houses down but he caught up very quickly and he dropped me to the ground by kicking my legs out from under me. When I was on the ground, he kicked me in my side a few times and I was screaming. I felt like I had broken ribs because I couldn't move. I ended up with bruising right down the side of my torso."
2. The defence concedes that, taken at its highest, the evidence of this incident (the lightbulb incident) is capable of supporting the alleged tendency.
3. The Crown relied upon an incident that occurred at the hospital immediately following the birth of their child that was related by Ms Billsborough, although, in the course of oral submissions, it was accepted that there was little about the incident suggesting that the accused exercised a degree of control of his anger.
4. As well, the Crown relied upon the Gold Coast incident and the two car park incidents that Ms Billsborough witnessed.
5. The Crown submitted that the third tendency, if established, demonstrates that the accused's use of violence in the past has been controlled and considered; notwithstanding his anger, which supports an inference that his use of violence in the confrontation with the deceased was a response over which he had control; notwithstanding any anger he may have felt about being pursued by the deceased. It is therefore relevant to rebutting a loss of control as part of a substantial impairment defence, and to rebutting a lack of knowledge of the wrongfulness of using violence.
6. The defence submitted that the Gold Coast and car parking incidents were instances of spontaneous violence that therefore did not support the alleged tendency. As well, it was submitted that the lightbulb incident is so far removed from the circumstances of the deceased's death as to not be significantly probative of the fact in issue.

Consideration

1. In order for the Crown to establish the tendency as alleged, a necessary component of the prior actions of the accused that are relied upon is the exercise of self-control. The lightbulb incident satisfies that requirement. It is probative of the fact in issue as to whether the applicant was capable of controlling his anger, in the context of the partial defence of substantial impairment. Although the incident occurred about three and a half years beforehand, it demonstrates a degree of self-management of the accused's anger which is probative to a significant extent of whether he was capable of doing so at this time. Both the lightbulb incident and the incident involving the deceased occurred in a similar area, both culminating in the accused being involved in a physical interaction on the street outside his respective residences at the time.
2. The Gold Coast incident, the hospital car park incident and the two car park incidents do not meet that threshold requirement. In all four incidents, the accused did not demonstrate a capacity to control his anger. Accordingly, they do not support the alleged tendency.
3. I am satisfied that the danger of unfair prejudice in admitting the evidence of the lightbulb incident is outweighed by its probative value. Accordingly, it is admissible as to the third tendency.

(iv) To claim that he is in fear as a means of manipulating or controlling a situation, or justifying criminal activity

1. The material relied upon to establish this tendency comprises three videos of police questioning of the accused, captured by police body-worn video.
2. In the first video, the accused was questioned on 26 July 2018 in the foyer of a police station about an incident three days before, when he keyed and defaced a car owned by Ms Billsborough's mother. He later pleaded guilty to a count of destroy or damage property, arising from that incident. He said that the motive for him committing the offence was that, while in the hospital during and in the immediate post-natal period, Ms Billsborough's mother yelled at him, saying that he did not know what he was doing. He said: "I started shaking and I started feeling like I was getting attacked and that I wasn't allowed to be there for the birth of my own child". He then left, and committed the offences on her car, which was in the car park, explaining his motive as "I'd do anything to protect my family", and that he expected that "it made her feel the way I felt at the time".
3. In the second video, dated 4 November 2020, the accused was questioned by two police officers in his front yard about an incident that occurred a month before at a tavern in Crescent Head in which he was alleged to have spat on the face of the licensee when he was refused service. He denied he had ever been to those premises. Under the pressure of continued questioning from one of the two officers, at one point the accused said to the officer that the officer was "putting quite an aggressive way towards me and I'm actually feelin' quite scared … I'm shakin', I'm tremblin'". Shortly afterwards, he declined to answer further questions.
4. The Crown submitted that he did not present as being in fear, but instead appeared to be asserting he was in fear to control or manipulate the interaction with the police.
5. In the third video, the accused was questioned on 27 February 2021 at his front door about an incident with respect to his neighbours, involving a fire he lit in his back yard, and a history of him allegedly throwing rocks and other items over his back fence into their yard. He said that the neighbour had jumped over his back fence and threatened him. The Crown submits that the accused's claim about the neighbours must have been a lie and thus he was deflecting blame by accusing them of acting aggressively towards him, instead.
6. The Crown submitted that the tendency is relevant to whether the accused's claims of being in fear, both during and after the incident, were genuine, which is relevant to both partial defences. One of the defence's forensic experts, Dr Gerald Chew, has expressed an opinion that the accused was in genuine "extreme" fear for his life, which was relevant to his diagnosis, and his assessment as to the partial defence of substantial impairment.
7. The Crown submitted that the accused's prior claims of being in fear, or being threatened, as a justification for criminal conduct, or to deflect inquiries into such conduct, is significantly probative of whether the accused was genuinely in fear during the assault of the deceased; or, alternatively, if he feigned fear in order to justify the violence he used.
8. The defence submitted that the first video does not support the alleged tendency because he does not claim to have been afraid. The responses of the accused in the second and third videos are, in part, a reaction to the form of questioning by the police, which the defence submitted was aggressive.

Consideration

1. The first and second videos have probative value of the fact in issue. Although in the first video the accused does not say in terms that he was afraid or fearful from what his partner's mother said and did, he did state that he felt under attack to the point that he was not welcome to stay there. While in the second video the accused was the subject of aggressive questioning by one of the two police officers, his claim of being fearful was at odds with his appearance and their location, which was in a public place in daylight hours.
2. In my view, the probative value of the two videos is significant and outweighs its prejudicial effect.
3. The Crown submission in relation to the third video depends upon the accused's version of events being deliberately untruthful, but the material before the court does not allow for that assessment to be made. Thus, it lacks probative value.
4. Accordingly, the tendency evidence of the first and second videos is admissible.

Orders

1. I make the following orders: 1. Evidence of the first alleged tendency is inadmissible; 2. Evidence of Courtney Billsborough consistent with par (47) of her statement dated 21 June 2023 and pars (4), (5) and (6) of her statement dated 24 May 2024 is admissible as to the second tendency; 3. Evidence of Courtney Billsborough consistent with par (17) of her statement dated 21 June 2023 is admissible as to the third tendency; and 4. Evidence of the body worn videos made on 26 July 2018 and 4 November 2020 is admissible as to the fourth tendency.

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