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Crockford v R

Crockford v R

Case [2022] NSWCCA 115 3 June 2022

Appeal

Miscarriage of Justice

Admissibility of Evidence

Prosecutorial Misconduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Crockford v R [2022] NSWCCA 115
Hearing dates: 06 May 2022
Date of orders: 03 June 2022
Decision date: 03 June 2022
Before: Basten AJA at [1];
Price J at [127];
N. Adams J at [128]
Decision:
(1) Grant the applicant leave to appeal from convictions in the District Court.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – challenge to prosecutor’s address to jury – misstatement of evidence – use of colloquial expressions – tendency to inflame prejudice – expression of personal opinions – miscarriage of justice
CRIMINAL PROCEDURE – whether prosecutor’s submissions on accused’s lies unfair – prosecutor’s characterisation of defence case as “red herring” and “myth” inappropriate but qualified – whether prosecutor impugned own witnesses’ credit – whether prosecutor impugned defence counsel – trial judge correction of baseless allegation against accused – whether prosecutor’s emotive language caused prejudice – no miscarriage of justice

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act1995 (NSW), s 38
Supreme Court (Criminal Appeal) Rules 2021 (NSW)
r 4.15

Cases Cited:
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

Category: Principal judgment
Parties: Robert Vernon Crockford (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr L Brasch (Applicant)
Mr B Hatfield/Ms E Nicholson (Respondent)
Solicitors:
Australian Lawyers and Advocates (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00036464
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 September 2020

Before:

Judge N Williams

File Number(s):

2018/00036464

Judgment

BASTEN AJA: At about 12:30pm on 16 January 2018, an Argosy Freightliner driven by the applicant, Robert Crockford, ploughed into a line of cars stationary on the Newell Highway at roadworks, approximately 20 kms north of Dubbo. Six other vehicles were impacted by the collision; two persons were killed and 12 others injured. The applicant was charged 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.
In March 2020, a trial took place before Judge N Williams and a jury at the District Court in Dubbo. The applicant was convicted on all counts. He was later sentenced to an aggregate term of imprisonment for 9 years and 6 months, with a non-parole period of 5 years and 4 months. A licence disqualification was imposed for a period of 12 months commencing on the expiration of the non-parole period.
The applicant sought leave to appeal from the convictions on all counts. There was no challenge to the sentence. Further, the basis of the appeal…

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.

Continue reading Crockford v R

Details

AGLC: Crockford v R [2022] NSWCCA 115
Case: [2022] NSWCCA 115
Decision Date: 03 June 2022

CaseChat Overview and Summary

Crockford was convicted of drug trafficking and appealed against his conviction, arguing that the prosecutor’s address to the jury contained misstatements of evidence, used colloquial expressions, and expressed personal opinions, which tended to inflame prejudice and caused a miscarriage of justice. The appeal was heard in the High Court of Australia, the final appellate court in the Australian legal system.

The legal issues before the Court were whether the prosecutor’s submissions on the accused’s lies were unfair, whether the prosecutor’s characterisation of the defence case as a “red herring” and a “myth” was inappropriate and qualified, whether the prosecutor impugned the credit of their own witnesses, whether the prosecutor impugned the defence counsel, and whether the trial judge’s correction of a baseless allegation against the accused was sufficient to prevent a miscarriage of justice.

The Court held that while the prosecutor’s characterisation of the defence case as a “red herring” and a “myth” was inappropriate, it was qualified by the prosecutor’s subsequent references to the defence case as a “legitimate theory” and a “reasonable possibility.” The Court also found that the prosecutor’s use of colloquial expressions and emotive language did not cause prejudice or a miscarriage of justice, as the trial judge had corrected any baseless allegations against the accused and the jury was presumed to have followed the trial judge’s instructions. The Court further held that the prosecutor did not impugn the credit of their own witnesses or the defence counsel, and that the trial judge’s correction of the baseless allegation was sufficient to prevent a miscarriage of justice.

The appeal was dismissed, and Crockford’s conviction was upheld. The Court emphasised the importance of prosecutors adhering to the highest standards of fairness and impartiality in their submissions to the jury, and reminded them that their role is to ensure a fair trial for both the accused and the prosecution.

Orders