Adam James McCORMICK v Regina

[2007] NSWCCA 78

New South Wales
Court of Criminal Appeal

CITATION:	Adam James McCORMICK v Regina [2007] NSWCCA 78
HEARING DATE(S):	15 September 2006
JUDGMENT DATE:	28 March 2007
JUDGMENT OF:	Hunt AJA at 1; Johnson J at 2; Latham J at 3
DECISION:	1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted; 3. Appeal against sentence dismissed
CATCHWORDS:	Conviction and sentence appeal - bribery and false evidence offences - apprehended bias of juror - Ebner test inapplicable in absence of disclosure by juror - no disparity.
LEGISLATION CITED:	Crimes Act 1900 Independent Commission Against Corruption Act 1988 Jury Act 1977
CASES CITED:	Webb v The Queen (1994) 181 CLR 41 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
PARTIES:	Appellant - Adam James McCormick Crown - Regina
FILE NUMBER(S):	CCA 2006/1358
COUNSEL:	Appellant - R Toner SC Crown - M Sexton SC/F Noman
SOLICITORS:	Appellant - Macedone Christie Willis Sols Crown - S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0286
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	31 October 2005

2006/1358

HUNT AJA
JOHNSON J
LATHAM J

28 MARCH 2007

ADAM JAMES McCORMICK v REGINA

Judgment

1 HUNT AJA : I agree with Latham J.

2 JOHNSON J : I agree with Latham J.

3 LATHAM J : The appellant appeals against his convictions on 31 October 2005 in respect of two counts of Corruptly Agreeing to Receive a Benefit and seven counts of Giving False Evidence. The bribery offences (Counts 1 and 2 on the indictment) carry a maximum penalty of seven years imprisonment pursuant to s 249B(1) of the Crimes Act 1900. The false evidence offences (Counts 3 to 9 on the indictment) carry a maximum penalty of five years imprisonment pursuant to s 87 of the Independent Commission Against Corruption Act 1988.

4 The appellant also appeals against the sentences imposed on 16 December 2005. The appellant was sentenced to three years imprisonment on Count 1, with a non parole period of two years. The same head sentence was imposed in respect of Count 2, but with a non parole period of one year. On each of the remaining counts, the appellant was sentenced to a fixed term of two years imprisonment. The partial accumulation of the sentences resulted in an aggregate sentence of five years with an aggregate non parole period of three years.

5 There is no complaint made in respect of the trial judge’s rulings or in respect of the summing up at trial. The single ground of the appellant’s conviction appeal challenges the failure by the trial judge to discharge the jury on the application of the appellant’s counsel. The application was made following a communication from the only Crown witness (Mr Smyrnis) to the Crown Prosecutor to the effect that the witness thought he knew a female member of the jury. It was submitted that his Honour applied the wrong test in refusing to discharge the jury, namely the absence of any indication from any member of the jury of prior knowledge of Mr Smyrnis, rather than a consideration of whether a reasonable apprehension of bias on the part of that unidentified juror arose.

6 Because of the confined scope of the conviction appeal, it is unnecessary to canvass the evidence in the trial in any detail. The Crown case was that the appellant, who was a councillor on Rockdale City Council, agreed to accept bribes to promote two development applications before the council (Counts 1 and 2). A number of telephone conversations and text messages between the appellant and Mr Smyrnis, were lawfully intercepted by the Independent Commission Against Corruption (ICAC). Mr Smyrnis, who was also a councillor on the council, agreed to pay the appellant $70,000 per development application, on the basis that the appellant persuaded his fellow Labor Party councillors to support the applications, and the applications were subsequently approved. When the appellant was called upon by the ICAC to explain the recorded telephone conversations and text messages, he gave false evidence denying his involvement in any corrupt conduct (Counts 3 to 9).

The Course of the Proceedings

7 The trial commenced on 24 October 2005. Following arraignment and the entry of not guilty pleas, the Crown Prosecutor read out the name of Andrew Smyrnis as the only Crown witness. The trial judge then made a call upon the jury panel pursuant to s 38(7)(b) of the Jury Act 1977, that is, the members of the panel were invited to apply to be excused if they considered they were not able to give impartial consideration to the case. In the absence of any response from the panel, the jury was empanelled and the trial Judge gave preliminary directions, including directions to the effect that the jury was to reach a verdict according to the evidence, and only the evidence, and that they should not conduct their own inquiries or discuss the matter with anyone outside the privacy of the jury room.

8 Mr Smyrnis was called to give evidence at 2:30 p.m. that day. He gave evidence of the political constitution of the council, his knowledge of the appellant and the routine passage of development applications through council. He was taken to the particular development applications the subject of the counts in the indictment, shortly before the Crown Prosecutor commenced to play a recording of a phone conversation on 30 November 2001. Mr Smyrnis then explained the meaning of certain words used as code in the course of that conversation. A second recording of a conversation on 24 January 2002 was then played to the jury and a further series of questions was asked of Mr Smyrnis in relation to that call. The Crown then played a recording of another call on 26 January 2002. The trial adjourned at 4 p.m. to the following day. Before allowing the jury to separate, the trial judge once more reminded them of the need to confine their discussions to the privacy of the jury room.

9 When the trial resumed the next day, the Crown Prosecutor informed the court in the absence of the jury that Mr Smyrnis had asked to speak to the Crown at the conclusion of the proceedings on 24 October 2005. The Crown Prosecutor reported that Mr Smyrnis :-

indicated to [the Crown] that he was of the belief that one of the female jurors sitting in the front row was known to him. Mr Smyrnis was a solicitor for quite a number of years: and he worked for both the legal aid commission and a private firm prior to being struck off after this incident. He is of the belief that one of the female jurors was a client of his at some stage. He can't remember her name or the specific details of when she would have been potentially one of his clients, but he said that she was extremely familiar. He felt that even when he looked at her in the courtroom when she was in the jury chair, and he said that he just wanted to bring that to [the Crown’s] attention and it concerns him that she may have been one of his clients. He couldn't take it any further to give details of a name or the matter. …. [The Crown] was waiting also to see this morning whether we received a note from a juror who may have twigged in the same way, but obviously your Honour doesn't have a note from any member of the jury.

10 The trial judge confirmed that no note had been received. The trial judge called upon the appellant's counsel, who then submitted that given the centrality of the credit of Mr Smyrnis in the trial, any association between Mr Smyrnis and a juror was problematic to the extent that the jury ought be discharged. Not surprisingly, the trial judge queried whether such a course was appropriate if Mr Smyrnis was in fact mistaken. The trial judge went on to say that :-

if it turned out that any one of the jurors had prior knowledge of Mr Smyrnis, I would have no hesitation in discharging the jury immediately, especially as what I suspect is going to happen is we are going to start again from the beginning of the calls playing them again, so it's not as though any time would be wasted by getting a new jury.

(This latter comment was a reference to the intention of the Crown Prosecutor to recommence the evidence in chief of Mr Smyrnis because of difficulties encountered in hearing and understanding his evidence the previous day.)

11 Mr Smyrnis and the jury were returned to the courtroom. His Honour then gave the following instruction:-

You will see Mr Smyrnis sitting in the body of the court there, that gentleman there in the light blue shirt. I want you all to look quite carefully at him and consider whether it's possible that one of you recognises him. I can tell you that Mr Smyrnis used to be a solicitor. He is no longer a solicitor now, for obvious reasons, but he used to be a solicitor. He used to work for the legal aid commission and then had his own practice. So I want you to look at Mr Smyrnis, think about what I just told you about him being a solicitor and where he used to work, and consider whether it's possible that any of you have had earlier dealings with Mr Smyrnis, or recognise him, perhaps not because he was a solicitor but because there is some other connection.
Now if that's the case, if one of you does recognise him, and, having thought about it carefully as a result of what I've just said to you, you do recognise him and have had some previous dealings, you should let me know. The way you should let me know is simply by writing me a note. You will be given an opportunity to write that note if one of you does recognise him because the Crown needs to have five minutes to get some more equipment brought over to court before we are ready to resume the trial.

12 Following a short adjournment, the trial judge confirmed with the jury that the absence of any note signified that no member of the jury considered it possible that he/she had any prior knowledge or dealings with the witness. Mr Smyrnis was returned to the witness box and the trial continued.

Discussion

13 The test applicable to an application to discharge a juror or jury on the grounds of apprehended bias is well-settled. It is the same test applicable to an allegation of apprehension of bias on the part of a judge : Webb v The Queen (1994) 181 CLR 41 at 68-69 per Deane J. There can be no doubt that, had a juror disclosed to the trial judge an association with Mr Smyrnis, the trial judge would have been obliged to attempt to ascertain the nature of that association and to determine whether the association gave rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the juror would not discharge her task impartially, notwithstanding the proposed or actual warnings and directions of the trial judge.

14 The appellant contends that the trial judge was bound to apply that test, despite the fact that no juror disclosed any association. The unreality in that submission emerges clearly when one has regard to the steps that a trial judge is required to undertake in order to satisfy him/herself that apprehended bias has been made out.

15 In Webb at 74, Deane J identified at least four overlapping categories of appearance of bias. They were described as “some direct or indirect interest in the proceedings, whether pecuniary or otherwise, … conduct, including published statements, … either in the course of or outside the proceedings, … association … [resulting] from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings, [and] … extraneous information … where [there is] knowledge of some prejudicial but inadmissible fact or circumstance.” Importantly, the question whether the fair-minded, informed lay observer apprehends bias in any given case depends upon the function being discharged by the person facing disqualification and the particular circumstances of the case (at 76). It is therefore critical, in the case of apprehended bias on the part of a juror, to identify generally the category of apparent bias and to take account of the directions by the trial judge relating to the need for impartiality and objectivity.

16 These categories were described in the joint judgment in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 349 as “a convenient frame of reference”, albeit not necessarily comprehensive. The expression of the test for apprehended bias in that judgment at 345 in fact recognises and draws upon Deane J’s rationale in Webb :-

First, it requires the identification of what it is said might lead a [juror] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a [juror] has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated . (emphasis not in original)

17 In the present case, the obligation to apply the test set out above simply never arose. Mr Smyrnis may have been mistaken, as the appellant fairly concedes. Even assuming that he was not mistaken, and assuming that the juror remembered her association with Mr Smyrnis, but declined to identify herself, “the bare identification of an ‘association’ will not suffice to answer the relevant question.” (Ebner at 350) There was no meaningful way for the trial judge to determine the nature and extent of the juror’s association with the witness, and therefore no possibility of articulating how that association might render the juror’s decision making partial, one way or another.

18 In my view this ground fails. I would dismiss the appellant’s appeal against conviction.

The Sentence Appeal

19 The appellant submits that disparity has arisen when one has regard to the sentence imposed on Mr Smyrnis, notwithstanding an acknowledgement that Mr Smyrnis pleaded guilty and gave extensive assistance to the authorities, including giving evidence against the appellant. Mr Smyrnis received a composite discount of 50% for these factors from Finnane QC DCJ, resulting in an aggregate sentence of 3 years imprisonment to be served by way of periodic detention.

20 Essentially, the appellant’s argument on this ground is that half of the sentence imposed on the appellant should have been comparable to the sentence imposed upon Mr Smyrnis, particularly when the appellant’s lesser criminality is taken into account. For the reasons set out below, such a direct correlation is invalid in the circumstances of this case. Nor would it be a complete answer to this ground of the appeal to compare an aggregate sentence of six years imprisonment (representing Mr Smyrnis’ sentence before the application of the discount) to that imposed upon the appellant.

21 Mr Smyrnis pleaded guilty to two counts of Corruptly Agreeing to Receive a Benefit and three counts of Giving False Evidence to the ICAC. However, the fact that the appellant faced sentence for four more counts of the latter offence must be assessed against the effect upon Mr Smyrnis’ sentence of an additional twelve counts of Giving False Evidence taken into account on a Form One. The Form One offences were to be reflected in the sentence imposed upon Mr Smyrnis for the first of the bribery offences. The appellant submits that, broadly speaking, the charges against both men were identical. The Crown did not take issue with this submission, rather, the Crown’s principal argument in response was that there was little practical distinction between their respective criminality, despite Mr Smyrnis’ role as instigator of the corrupt arrangement.

22 I agree with the Crown’s submission that the appellant played a significant role in an ongoing series of offences. In particular, the appellant was critical to the success of the scheme, in that Mr Smyrnis was unable to secure the approval of the development applications in Council without the support of the appellant and the appellant’s influence over his fellow Labor party members. The amount to be paid to the appellant for each approved application ($70,000) was less than Mr Smyrnis stood to gain from the venture, and it is true that the appellant did not ultimately receive any payment, but the appellant’s participation was, as the trial judge found, determined and enthusiastic. When the appellant became aware of Mr Smyrnis’ profits, he threatened to go directly to the developer and demand a greater share.

23 The appellant contends that his subjective factors were also a point of distinction between himself and Mr Smyrnis. The trial judge placed appropriate weight upon the appellant’s obsessive compulsive disorder and the hardship occasioned to the appellant’s elderly mother by the appellant’s full time imprisonment. The trial judge also recognised that these were “two matters of substantial mitigation which were not present in Mr Smyrnis’ case.” However, there was evidence before Finnane QC DCJ that Mr Smyrnis’ wife had suffered extreme psychological sequelae from the disclosure of the offences, to the extent that the deterioration of her health required Mr Smyrnis’ full time care. It was that factor that ultimately persuaded his Honour to order that the sentence be served by way of periodic detention.

24 Accepting that there is an element of leniency inherent in a sentence served by way of periodic detention, the comparative exercise advanced by the appellant for the purposes of this appeal ignores the discretionary aspects of sentencing. His Honour Judge Finnane QC was required to synthesise a number of objective and subjective factors in determining the appropriate sentence for Mr Smyrnis. There were some extraordinary subjective factors in Mr Smyrnis’ case, in particular his contrition and remorse. He sought to persuade the appellant and two others to plead guilty following the exposure of the scheme by the ICAC. He informed the Director of Public Prosecutions at a very early stage that he intended to plead guilty. The ICAC recognised that Mr Smyrnis’ advice to his co-offenders was significant in attracting pleas from two of them, Retsos and Limberis. Mr Smyrnis repaid the $50,000 he had obtained from a developer and performed voluntary community work for two years after the offences, prior to sentencing. He wrote a public apology to the Sydney Morning Herald and to a local newspaper. Furthermore, he appeared on television and made radio broadcasts admitting his wrongdoing and denouncing such conduct.

25 This stood in stark contrast to the appellant’s case on sentence. So much was recognised by the trial judge :-

It is apparent that, even to this day, the offender maintains that what he was proposing to receive were donations to the Australian Labor Party. He maintains that position despite the verdict and overwhelming evidence to the contrary. Again, he is not to be punished for the absence of remorse, but the absence of remorse is particularly important when comparing the offender’s sentence to that of Mr Smyrnis, whose remorse was of a level rarely seen.

26 In all of these circumstances, there can be no legitimate sense of grievance justifying the intervention of this Court. I would dismiss the appellant’s sentence appeal.

27 The orders I propose are :-

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence dismissed.

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