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Court of Criminal Appeal 3 June 2022

Crockford v R

[2022] NSWCCA 115

HomicideTraffic & driving
CRIME APPEALS APPEAL AGAINST CONVICTION MISSTATEMENT OF EVIDENCE USE OF COLLOQUIAL EXPRESSIONS TENDENCY TO INFLAME PREJUDICE

Citation: Crockford v R [2022] NSWCCA 115
Court: Court of Criminal Appeal
Date: 3 June 2022
Judge(s): Basten AJA (with Price J and N Adams J agreeing)

Background

A truck driver was convicted in the District Court at Dubbo on two counts of dangerous driving occasioning death, three counts of dangerous driving occasioning grievous bodily harm, and seven counts of wanton driving causing bodily harm. The charges arose from a January 2018 collision in which the applicant's heavily loaded Argosy Freightliner ploughed into a line of stationary vehicles at roadworks on the Newell Highway north of Dubbo, killing two people and injuring twelve others. He was sentenced to an aggregate term of nine years and six months' imprisonment with a non-parole period of five years and four months.

The prosecution case was that the applicant was fatigued and not keeping a proper lookout at the time of the collision. The applicant's defence was that he had briefly lost consciousness due to a cough syncope (a coughing fit severe enough to cause a momentary loss of consciousness), a medical event he said occurred in the moments before impact.

The applicant sought leave to appeal his convictions on the sole ground that the Crown prosecutor's closing address gave rise to a miscarriage of justice. There was no challenge to the sentence, the admissibility or sufficiency of the evidence, or the trial judge's directions to the jury.

Legal Issues

  • Whether the prosecutor's closing address, taken as a whole or in specific passages, gave rise to a miscarriage of justice within the meaning of the Criminal Appeal Act 1912 (NSW), s 5
  • Whether the prosecutor's treatment of the applicant's alleged lies was unfair or failed to meet proper standards
  • Whether the prosecutor misstated or overstated the evidence of the prosecution's expert on cough syncope, Professor Naughton
  • Whether the prosecutor's characterisation of the defence case as a "red herring" and a "myth" was improper and prejudicial
  • Whether the prosecutor improperly impugned the credit of prosecution witnesses or defence counsel
  • Whether the prosecutor's misleading submission that the applicant and Mr Scott had fabricated their account together caused prejudice not adequately corrected by the trial judge
  • Whether the prosecutor's use of emotive language caused prejudice to the applicant
  • Whether the cumulative effect of all the impugned passages amounted to a miscarriage of justice

Decision

Issue 1: The applicant's lies and the prosecutor's submissions

The applicant challenged three aspects of the prosecutor's treatment of his alleged lies: an alleged failure to distinguish between lies going to consciousness of guilt and lies going to general credibility; a failure to use formulations such as "I submit"; and language implying bad character. The Court rejected all three challenges. Each category of lie was developed separately in the address, and the jury would not have been misled. The use of a general statement about the applicant's trustworthiness was permissible given that his credibility went to the heart of the prosecution's case. A hypothetical thought process attributed to the applicant as to why he changed his story was found to be different in character from the impermissible reasoning condemned in Armstrong v R, and, if prejudicial, only to a minor degree (at [35], [38], [41], [49]).

Issue 2: Misrepresentation of Professor Naughton's evidence

The applicant contended that the prosecutor misstated Professor Naughton's evidence in three passages, including by referring to the applicant as a "patient" and by overstating the expert's conclusions about the reproducibility and necessary comorbidities of cough syncope. The Court rejected each complaint. The reference to "patient four" was a figure of speech that the jury would have understood in context; and the prosecutor's summary of the expert's views on reproducibility and the necessary criteria for cough syncope was consistent with, and supported by, the evidence given in chief (at [55], [61]-[63]).

Issue 3: Characterisation of the defence as a "red herring" and a "myth"

The Court accepted that describing the defence case as a "red herring" and a "myth" was inappropriate rhetoric that should have been avoided. The Director of Public Prosecutions conceded the same. However, on each occasion the prosecutor immediately qualified the language by directing the jury to the evidence as the proper basis for rejecting the defence. Given those qualifications, the Court found no real prospect that the language distracted the jury or denied the applicant a chance of acquittal (at [68]). A related passage in which the prosecutor anticipated defence submissions was not improper in context, and a reference to UK juries potentially being "fooled" by similar defences, while a colloquialism to be avoided, did not cause prejudice (at [74], [78]).

Issue 4: Treatment of prosecution and defence witnesses

The applicant challenged the prosecutor's handling of evidence from Dr Finnimore (the defence's treating physician), the junior hospital doctors, and Mr Scott. The Court found no impropriety in the prosecutor's reliance on Dr Finnimore's evidence, including his acceptance under cross-examination that fatigue was the more likely cause. The brief remark that the hospital doctors "don't have the expertise" was not an attack on their credit but a comparison with Professor Naughton's qualifications (at [87], [96]).

The prosecutor's submission that the applicant and Mr Scott had "got their heads together to come up with this story" was misleading: the cross-examination had only suggested that Mr Scott gave false evidence, not that both men had fabricated a story in concert (at [103]). However, the trial judge gave a corrective direction, and defence counsel was consulted in its formulation and sought nothing further. The Court held the direction adequately corrected the error and the error did not cause the trial to miscarry (at [107]-[108]).

Issue 5: Emotive and intemperate language

The prosecutor's appeal to the jury as people "who use your roads" and his description of the applicant as having "dangerously and wantonly killed" two people were identified as unnecessary. However, the charges themselves related to public road safety and involved deaths. The emotional tone reflected the unavoidable circumstances of the case rather than an improper appeal to prejudice, and the language did not realistically divert the jury from an objective assessment of the evidence (at [116], [119]).

Issue 6: Cumulative effect

Even considering all the impugned passages together, the Court was not persuaded that the address as a whole caused prejudice to the applicant. The bulk of the address was a precise and careful analysis of the evidence. The trial judge's directions were clear, accurate, and balanced. There was no miscarriage of justice (at [121]-[126], [129]).

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • A miscarriage of justice arising from a prosecutor's closing address requires a real chance that the impugned conduct affected the jury's verdict or had the capacity for practical injustice; inappropriate language that is immediately qualified or corrected will not necessarily reach that threshold (at [24], [129]).

  • Describing a defence as a "red herring" or a "myth" is inappropriate rhetorical language that risks distracting a jury rather than directing them to the evidence; however, where the prosecutor immediately qualifies such language by inviting the jury to decide on the evidence, the risk of prejudice is substantially reduced (at [68]).

  • Where a prosecutor makes a misleading submission that goes beyond the evidence, a corrective direction from the trial judge, developed in consultation with defence counsel, can adequately remedy the error and forestall a miscarriage, particularly where defence counsel sought nothing further after the direction was given (at [107]-[108]).

  • Postulating a hypothetical thought process for the accused is a technique to be avoided, but is not necessarily improper where it reflects an inference that is inherent in the prosecution case rather than transforming a neutral statement into a confession, as was condemned in Armstrong v R (at [48]-[49]).

  • In assessing whether a prosecutor's address caused a miscarriage of justice, the Court of Criminal Appeal considers both individual passages in their immediate context and the cumulative effect of the address as a whole, together with the clarity and accuracy of the trial judge's directions to the jury (at [120]-[123]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), s 38
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)
- r 4.15

Cases
- Armstrong v R [2013] NSWCCA 113
- Glenn (a pseudonym) v R [2020] NSWCCA 308
- Hofer v The Queen [2021] HCA 36; 95 ALJR 937
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Lyndon v R [2014] NSWCCA 112
- Zhou v R [2021] NSWCCA 278
- Zurshig v R [2021] NSWCCA 309