NEW SOUTH WALES. High Court-Appellate jurisdiction-Special leave to appeal-Grounds for granting
or refusing-In criminal cases--Exceptional and special circumstances-Sub- stantial and grave injustice. Criminal Law and Procedure-Appeal against conviction-Court of Criminal Appeal
(N.S.W.)-Miscarriage of justice-Discovery of fresh evidence-Evidence required to be cogent, plausible and relevant-Evidence calculated to remove cer- tainty of guilt-Consideration of probative force and nature of evidence adduced at trial-Unreliability of proposed new witness. Criminal Law and Procedure-Evidence-Onus of proof-IdentificationCase
depending on identifying witnesses only.
The High Court will not grant special leave to appeal to a prisoner convicted upon indictment unless (per Rich and Dixon JJ.) the case presents some special features, (per Starke J.) it is shown that exceptional and special circumstances exist, and that substantial and grave injustice has been done, (per Evatt and McTiernan JJ.) it presents features of sufficient gravity to warrant a review of the decision of the State Supreme Court.
Per Rich and Dixon JJ.: In an application to have a conviction set aside upon the ground of fresh evidence, it cannot be said that a miscarriage of justice has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought, in the minds of reasonable men, to be affected. Such evidence should be calculated at least, to remove the certainty of the prisoner's guilt which the former evidence produced.
Per Evatt and McTiernan JJ. Consideration of the weight to be attached to the evidence of identifying witnesses where that is the only evidence impli- cating an accused person.
Special leave to appeal from the Court of Criminal Appeal of New South Wales (unreported) by majority, refused.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
In June 1933 Eric Roland Craig was tried before Stephen J. and a jury, at the Central Criminal Court, Sydney, for the murder, on 16th December 1932, at Kogarah, of a girl, aged sixteen years, named Elizabeth Isobel O'Connor, commonly known as Bessie O'Connor. The girl was discovered on some bush land during the early hours of 15th December, badly battered about the head, and she died on the following day as a result of the injuries. Craig was convicted. He had been tried on the same indictment on two previous occasions, in March and April 1933 respectively, but on each of those occasions the jury was unable to agree upon a verdict and was discharged. Craig appealed against his conviction to the Court of Criminal Appeal on the ground that since his conviction fresh evidence had been discovered which could not have been obtained beforehand, and which might, if adduced before a jury, bring about a different result. The nature of the fresh evidence and also of the evidence given at the trial is sufficiently…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Craig v The King [1933] HCA 41
Case
[1933] HCA 41
Decision Date
CaseChat Overview and Summary
The applicant, Eric Roland Craig, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. Craig had been convicted of murder on his third trial, following two previous hung juries. The application for special leave was based on the discovery of fresh evidence which Craig contended could have led to a different verdict, and also on the alleged unsatisfactory nature of the identification evidence presented at trial.
The legal issues before the High Court were whether the Court of Criminal Appeal had erred in refusing to grant a new trial based on the fresh evidence, and whether the conviction was unsafe or resulted in a miscarriage of justice due to the weakness of the identification evidence. The Court was required to consider the criteria for granting special leave to appeal in criminal cases, particularly the existence of exceptional circumstances and the potential for substantial and grave injustice. It also had to assess the cogency, plausibility, and relevancy of the fresh evidence, and its potential to affect the certainty of guilt established by the original trial evidence.
The High Court, by majority, refused special leave to appeal. The majority judges, Rich and Dixon JJ., emphasised that for fresh evidence to warrant a new trial, it must possess cogency and plausibility and be capable of altering the minds of reasonable persons when considered alongside the trial evidence, at least to the extent of removing the certainty of guilt. They found that the fresh evidence, primarily from a witness named Crothers, lacked credibility due to his criminal record, inconsistent statements, and the inherent implausibility of his narrative. While acknowledging criticisms of the identification evidence, the majority concluded that the trial jury was entitled to weigh that evidence, and that the fresh evidence, even when considered with those criticisms, did not present a sufficient basis to overturn the Court of Criminal Appeal's decision and avoid a miscarriage of justice. Starke J. agreed, stating that intervention was only warranted in cases of exceptional circumstances and substantial injustice, and that the Court of Criminal Appeal's finding of untrustworthy evidence should be given great weight.
However, Evatt and McTiernan JJ. dissented, granting special leave to appeal. They argued that the case presented features of sufficient gravity to warrant review, primarily due to the absence of any evidence implicating Craig other than identification evidence, which they found to be notoriously delicate and unsatisfactory. They detailed significant weaknesses in the identification evidence, including discrepancies in descriptions, unreliable identification procedures, and the passage of time. They also considered the fresh evidence, but their primary concern was the fundamental lack of reliable evidence connecting Craig to the crime, suggesting that the Court of Criminal Appeal had diverted its attention from this critical issue.