Citation: CRAIGIE (aka CREIGHTON), Derek James v R [2013] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 3 July 2013
Judge(s): Hoeben CJ at CL, Hidden J, Fullerton J
Background
The appellant was convicted in the District Court on four counts of sexual assault against his younger male cousin, with the offences occurring in 1998 and 1999 in the Newcastle area. The complainant did not report the offences until 2007, and the appellant was not arrested until 2010. The trial took place in February and March 2012.
The extended family involved was large, and a number of potential witnesses, including Owen Craigie (a prominent Newcastle Knights footballer and cousin of the appellant), Eddie Strachan, and other family members, had not provided statements to police before the trial commenced. The investigation appeared to generate significant activity at and during the trial itself, resulting in fresh material being served on the defence while proceedings were already underway.
The appellant challenged his conviction on two grounds: the adequacy of the police investigation and the late service of fresh evidence during trial, and alleged misconduct by a juror who appeared to know the current whereabouts of Owen Craigie.
Legal Issues
- Whether the late service of new statements and evidence during the trial, arising from an inadequate police investigation, produced a substantial miscarriage of justice
- Whether a juror's apparent knowledge of Owen Craigie's whereabouts during the trial constituted misconduct giving rise to a miscarriage of justice
Decision
On the first ground, the court accepted that police activity had continued into the trial period and that multiple additional statements, including two further statements from the complainant, were served on the defence during the proceedings. These concerned complaint evidence: statements about the complainant disclosing the assaults to his uncle and to his father. The defence was assisted by a Basha enquiry (a pre-trial examination allowing the defence to test a witness's anticipated evidence) and at no stage sought discharge of the jury.
The court found that the late-served material, when examined in context, had emerged more favourably to the appellant than it might otherwise have done. The trial judge had rejected some complaint evidence, cautioned the jury that other complaint evidence might be unreliable because the relevant witness had since died, and presented the jury with an agreed facts document showing that the father's earlier statements did not support the complainant's account of a complaint made to him by telephone. No miscarriage of justice was established.
On the second ground, a juror disclosed to a sheriff's officer during the trial that he knew Owen Craigie was training at a particular oval, apparently contradicting the investigating officer's evidence that Craigie was believed to be overseas in China. The trial judge did not examine the juror, observing that the juror had likely known Craigie's whereabouts from general community knowledge of his prominence as a footballer. The appellant's legal team had not sought a formal investigation by the sheriff under the Jury Act.
The court accepted that it would have been preferable for the trial judge to have examined the juror, but concluded that the most likely explanation for the juror's knowledge was Craigie's local profile rather than any improper enquiry. Between the relevant evidence and the juror's disclosure, there had been no opportunity for the juror to independently investigate the matter. The possibility of actual irregularity was characterised as purely speculative, and this ground also failed.
Orders Made
• The appeal is dismissed.
Key Takeaways
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In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court's role is not to assess the general efficiency of a police investigation, but only to determine whether any investigative deficiency caused an actual miscarriage of justice in the proceedings.
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Where late-served material during a criminal trial ultimately emerges more favourably to the accused, and defence counsel is afforded procedural tools such as a Basha enquiry without seeking a jury discharge, a miscarriage of justice will not readily be established on that basis alone.
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Substantial delay between the events the subject of a charge and the trial is common in sexual assault matters; the appropriate response is a careful forensic disadvantage direction to the jury in accordance with Longman v The Queen (1989) 168 CLR 79, and such a direction does not itself become a source of appellate error.
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A juror's apparent knowledge about a potential witness's whereabouts does not automatically constitute misconduct; where the most plausible explanation is pre-existing general community knowledge, and no opportunity existed for independent enquiry during the trial, the court will not infer an irregularity without more than speculation.
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The Court of Criminal Appeal noted that, while examining the juror would have been preferable, the absence of such an examination did not in the circumstances give rise to a miscarriage of justice warranting intervention.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 191 (agreed facts)
- Jury Act 1977 (NSW), ss 37(7)(a), 73A
Cases
- Longman v The Queen (1989) 168 CLR 79
- R v Skaf [2004] NSWCCA 37; 60 NSWLR 86