CRAIGIE (aka CREIGHTON), Derek James v R [2013] NSWCCA 153

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CRAIGIE (aka CREIGHTON), Derek James v R [2013] NSWCCA 153 Hearing dates: Friday 7 June 2013 Decision date: 03 July 2013 Before: Hoeben CJ at CL at [1] Hidden J at [2] Fullerton J at [37] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against conviction - charges of sexual assault - a number of potential witnesses not called in the Crown case - fresh material served on defence during course of the trial - suggested misconduct by juror - whether miscarriage of justice Legislation Cited: Evidence Act 1995 Jury Act 1977 Cases Cited: - Longman v The Queen (1989) 168 CLR 79 - R v Skaf [2004] NSWCCA 37, 60 NSWLR 86 Category: Principal judgment Parties: Derek James Craigie (appellant) Regina (Crown) Representation: Counsel: N Carroll (appellant) N Adams SC (Crown) Solicitors: George Sten & Co (appellant) S Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2010/233760 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-04-20 00:00:00 Before: Toner DCJ File Number(s): 2010/233760

Judgment 1HOEBEN CJ at CL: I agree with Hidden J. 2HIDDEN J: The appellant, Derek James Craigie, was found guilty at trial in the District Court of four counts of sexual assault, and was sentenced to a term of imprisonment. He appeals against conviction only. 3Given the nature of the grounds of appeal, it is unnecessary to recite the facts. It is sufficient to say that the complainant of the offences was the appellant's cousin. His name is not Craigie. He was aged between 15 and 16 years at the time. The offences occurred in 1998 and 1999. The appellant and the complainant were members of a large extended Aboriginal family, which at the relevant time was living in the Newcastle area, having moved there from Moree. Another cousin of the appellant, Owen Craigie, was playing football for the Newcastle Knights team. The family home was at North Lambton, but Owen Craigie was living in a unit at Adamstown. Sometimes the appellant stayed with a family friend, Eddie Strachan, who lived in a townhouse also at Adamstown. 4The complainant's evidence was that the first offence occurred at Mr Strachan's home in about May 1998. Other family members were at the home on the occasion but at the time the offence occurred they had left to buy some alcohol. 5The second and third offences occurred on another occasion, sometime in the winter of 1998, at Owen Craigie's unit, where the complainant was staying overnight. Again, various members of the family, together with Eddie Strachan and two other men, Sean Swan and Nigel Welsh, had been at the unit, but had left with Owen Craigie to go out for drinks. The offences occurred in their absence, and after them the complainant locked himself in Owen Craigie's room. It was sometime later that Owen Craigie returned to the unit. 6The fourth offence occurred in February 1999 at the family home at North Lambton. Yet again, other members of the family were at the home. The complainant excused himself from the gathering and went to sleep in a granny flat in the backyard. He was woken by the appellant, and it was there that the offence was committed. 7The complainant told no-one about any of this until 2007, and in November of that year he made a statement to the police. The appellant was not arrested until 1 July 2010, and the trial took place between late February and early March 2012. 8There are two grounds of appeal: (1) The unsatisfactory police investigation and the continuous service of critical fresh evidence, after the trial had commenced, has resulted in a substantial miscarriage of justice. (2) The trial miscarried by reason of the misconduct of a juror, locating a relevant witness during the trial. Neither the prosecutor (a trial advocate) nor defence counsel at the trial appeared in this court.