Craig v The King

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.