Citation: Crockford v R [2022] NSWCCA 115
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2022
Judge(s): Basten AJA (leading judgment); Price J (agreeing); N Adams J (agreeing)
Background
A truck driver was convicted in the District Court at Dubbo following a 2020 trial on charges arising from a catastrophic collision on the Newell Highway in January 2018. His heavily loaded Argosy Freightliner ploughed into a line of stationary vehicles at roadworks, killing two people and injuring twelve others. He was convicted on all counts, including dangerous driving occasioning death and wanton driving causing bodily harm, and sentenced to an aggregate term of nine years and six months imprisonment.
The prosecution case was that the driver was fatigued and not keeping a proper lookout at the time of the collision. The defence case was that a sudden and involuntary loss of consciousness caused by a severe coughing fit (a "cough syncope") had caused him to lose control of the vehicle. Medical evidence was called in support of that possibility.
The driver sought leave to appeal against conviction, but on a single, confined ground: that the Crown prosecutor's closing address to the jury had given rise to a miscarriage of justice. There was no challenge to the admissibility or sufficiency of evidence, and no challenge to the trial judge's directions.
Legal Issues
- Whether the Crown prosecutor's closing address contained misstatements of evidence that were sufficiently serious to constitute a miscarriage of justice.
- Whether the prosecutor's use of colloquial expressions (such as characterising the defence case as a "red herring" and a "myth") was improper or inflammatory to a degree causing unfairness.
- Whether the prosecutor expressed impermissible personal opinions about the credibility of witnesses, including Crown witnesses.
- Whether the prosecutor impugned defence counsel in a manner that was unfair to the accused.
- Whether the trial judge's interventions and directions adequately addressed any prosecutorial overreach.
- Whether, taken cumulatively, the matters complained of caused a miscarriage of justice warranting the convictions being set aside.
Decision
The Court granted the extension of time and leave to appeal, but dismissed the appeal. Basten AJA, writing the leading judgment, worked through each of the specific complaints about the prosecutor's address against the full context of the trial.
On the misstatements of evidence, the Court accepted that the prosecutor had, in places, inaccurately characterised aspects of the evidence. However, in each instance the Court assessed whether the misstatement was material and whether it had the capacity to cause practical injustice. The Court found that, viewed in context, none of the misstatements reached that threshold, particularly given the strength of the prosecution case and the nature of the inaccuracies.
On the inflammatory and colloquial language, the Court accepted that characterising the defence case as a "red herring" and a "myth" was inappropriate. However, the prosecutor had qualified those remarks, and the trial judge had directed the jury appropriately. The Court found that these expressions, while regrettable, did not inflame prejudice to a degree capable of affecting the verdict. Similarly, while the prosecutor had made some comments that bordered on impugning defence counsel, they did not cross the line into the kind of impropriety that would undermine the fairness of the trial.
The Court also noted that where the prosecutor had made a particularly baseless allegation against the accused, the trial judge had intervened and corrected it in strong terms. This intervention was an important factor in the overall assessment. Applying the test for miscarriage of justice, which requires that the irregularity have the capacity for practical injustice or to affect the result of the trial, the Court concluded that the complaints, whether considered individually or cumulatively, did not establish that the convictions were unsafe.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a prosecutor's closing address must be assessed in the full context of the trial, not by extracting individual passages in isolation.
- Inflammatory or colloquial language in a prosecutor's address (such as labelling the defence case a "red herring" or "myth") is inappropriate, but does not automatically produce a miscarriage of justice; the question is whether the language had the capacity to cause practical injustice or affect the verdict.
- A miscarriage of justice on the basis of prosecutorial misconduct requires more than mere irregularity: the conduct must have had the capacity for practical injustice or must have been capable of affecting the result of the trial.
- Where a trial judge intervenes promptly and corrects baseless prosecutorial allegations against an accused, that intervention is a significant factor weighing against a finding of miscarriage of justice.
- Misstatements of evidence by a prosecutor do not necessarily warrant appellate intervention; their materiality and potential to cause unfairness must be assessed against the overall conduct and evidence in the trial.
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
- Edwards v The Queen [2021] HCA 28