Craig v R [1933] HCA 41

Craig v R [1933] HCA 41 - HCA 1933 case summary — Zoe

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evidence there are facts which are not in dispute. It would be tantamount to a usurpation by the Court of the functions of a jury if such facts were not allowed to go before a jury for consideration. The evidence given against the applicant does not contain one fact, direct or circumstantial, that connects him with the commission of the crime with which he was charged except that three persons separately identified him as being the man seen by them in a_ particular car with the victim of the murder, and one deposed to having had a conversation with him. The evidence of identification was unsatisfactory. Not only were there marked discrepancies - between the descriptions given of the man seen in the car and the applicant - e.g., the height of the man seen was variously given as five feet eight inches and five feet nine inches whereas the height of the applicant is five feet six inches in his socks, but also, whilst the applicant was in custody, Crown witnesses purported to "identify " him upon occasions - e.g., whilst he was in attendance at the coronial inquiry - and under conditions - e.g., after wide publication of his photograph in newspapers, by persons who had previously failed to identify him or had been uncertain ; and also after the lapse of many months from the time the man was seen by the persons purporting to identify him - which render such identifica~ tion unreliable, and it should not be accepted as evidence against - the applicant (R. v. Betridge (height) (1); R. v. Morrison (photograph) (2); R. v. Haslam (photograph) (3); R. v. Cartwright (identified only when defendant in the dock) (4); and R. v. Gilling (unreliability generally) (5) ). The Court is entitled to quash the conviction if in its opinion the jury failed to give the applicant the benefit of a grave doubt (R. v. Parker (6) ). As the evidence upon which the applicant was convicted was so slight and unreliable it is conceivable that any new fact, however slight, if brought before a jury and believed by them, may bring about a different result, therefore, at the least a new trial should be granted. [SrarKeE J. referred to Brown v. Dean (7). ]

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was within the province of the jury to estimate its weight and nd under a proper direction, which they in fact received from e trial Judge, they were entitled, if it carried conviction to their inds to found a verdict of guilty upon it. _ We turn to the examination of the course taken by the Supreme Jourt in relation to the application for a new trial in respect of the evidence. In doing so we agree that we should not be unmindful of the nature of the evidence implicating the accused, but we think the learned Judges of the Supreme Court, who were all familiar with that evidence, cannot have overlooked its character. In nating the value of the new evidence, the first and the dominant ideration is the complete lack of personal credibility in the Crothers. It is unnecessary to elaborate reasons for the lusion that no jury should place any reliance upon him as a The next consideration is that as to many important ces of his story he has given three entirely contradictory . Except for the physical production of a handkerchief bearing stains presumptively of blood and embroidered with the etters B.O. these facts coupled with the inherent absurdity of the y would disentitle it to any serious consideration. The only mer in which his story can be presented as rationally deserving 'the consideration of a jury is as that of a man who is attempting to 'tell enough of facts within his knowledge to exculpate Craig whilst protecting with clumsy and inconsistent falsehood some other person "whose guilt he knows or suspects. The story of the handkerchief, 'even with the support - a slender support - of the evidence of the gil that something she took to be a handkerchief was seen some 'months before reeks with suspicion. We do not think it necessary ) enlarge upon the details of the story of the bundle, its varying omponents, - -trousers, tyre lever, handkerchief, the contradictory ecounts of the disposal of these articles, the intervals of time between the accounts given and first search, and between that search and "the finding, or the many minor improbabilities of the narrative, nor "need we refer to the account of Crothers' career which shows him tomed to the fabrication of sensations and given to seek i Tt is enough to say that the learned Judges of the

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on their minds had been made. The value of their evidence a greatly weakened by their lack of opportunity for observation, their failure to record any peculiar characteristic of the driver, and their all having seen published photographs both of the girl in the car and of Craig. The witness Watson was not taken to identify Craig until January 17th, but failed to identify him upon a " line-up" stating that he did not take particular notice on the night in question, The witness Weeks did not identify until January 29th, when Craig, who had been charged with the murder, was sitting at the bar-table in the Coroner's Court along with his solicitor. This was an unsatis- _ factory identification, and clearly Weeks was in considerable doubt _ about the matter, as is shown by his statement that he could not "swear " to Craig. Mrs. Watts was given, or sought, no opportunity of identifying Craig before January 20th. She was in touch with the police as early as December 16th, being taken out to identify Bessie O'Connor. She made a statement to the police at once, describing the driver in detail and as having " fairly broad Trish - features." But to such description, Craig would appear not to answer. - Whilst there is no other evidence implicating Craig, the evidence - of Brown, Stiff and Lawrence considerably weakens the conclusion that Craig was the driver. Brown certainly had special opportunities for observing the driver of the car. The witness Lawrence says - that he saw a girl, whom he believed was Bessie O'Connor, leave a car near her home in Redfern and go towards her home, while the driver got out and waited for her upon the pavement. He spoke to the driver, and says that the driver was not Craig. He made a statement to the police upon the day after the murder, which was in accordance with his evidence, and he was taken to see whether he could identify Craig on January 7th or 8th. The witness was - subjected to a somewhat harsh cross-examination at the hands - of the Crown Prosecutor, which, so far as the evidence discloses,

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her. The learned Judges did not, moreover, reject the possibility that the handkerchief was hers, but rather proceeded upon the basis that, even if it was hers, Crothers' account as to how he came by it, was not thereby corroborated. It is correct that the mere finding of the dead girl's handkerchief, if such it was, would not "corroborate Crothers' account of the events of the evening of December 14th. None the less, if the handkerchief did belong to ie O'Connor, the conclusion that Crothers is an untrustworthy witness would not necessarily destroy its importance and significance n the minds of a jury. There is nothing suggested which would account for the presence of Bessie O'Connor's handkerchief at the ce and time it was found, except (1) a conspiracy to pervert the se of justice, to which some person in possession of a handkerchief 0 "the dead girl was a party, or (2) Crothers' having obtained possession of the handkerchief under circumstances tending to implicate either him or some other person, or both, in the crime of "murder, or of being accessory after the fact of such crime. A jury might reject the former and accept the latter hypothesis. _ There is another important aspect of this branch of the case. On January 12th last, Crothers made a statement to the police, and in on February 14th he made a signed statement to the police. 'There was considerable inconsistency between the statements, but, in the second statement he purported to disclose the existence of a bloodstained handkerchief, with the letters "' B.O." embroidered in the corner. The officers of police suspected Crothers' bona fides 'and undertook the responsibility of spending no further time in investigating his story. They say that they inquired into the movements of the person who, according to Crothers, deposited the handkerchief in the car, and that, a satisfactory alibi being obtained, they dropped the matter. By that time, of course, their efforts were directed towards proving that Craig was the driver of the car. thers' statement, for whatever it was worth, tended to implicate else. Under such circumstances, we think Crothers'

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