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…

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 Adam James McCORMICK v Regina

Details

AGLC: Adam James McCormick v Regina [2007] NSWCCA 78
Case: [2007] NSWCCA 78
Decision Date: 28 March 2007

CaseChat Overview and Summary

In the matter of Adam James McCormick, the appellant, versus Regina, the respondent, the High Court of Australia was called upon to review the conviction and sentence of the appellant. McCormick was convicted of multiple counts of bribery and false evidence offences. He appealed against his conviction and sentence, raising several grounds of appeal, including the alleged bias of a juror. The Court of Appeal had previously upheld McCormick's appeal in part, setting aside the conviction and remitting the case for a new trial, based on the contention of juror bias.

The central legal issues before the High Court involved whether the Court of Appeal was correct in concluding that there was juror bias and whether the Ebner test should apply in this context. The appellant argued that the juror had been biased as they failed to disclose prior acquaintance with the investigating officer. The Crown countered that the juror's failure to disclose this acquaintance did not amount to bias and that the Ebner test, typically used to assess apprehended bias, was not applicable because the juror did not make any disclosure at all.

The High Court found that the Court of Appeal had erred in its application of the Ebner test. The Court held that the Ebner test is only applicable when the juror has made some disclosure that could give rise to a reasonable apprehension of bias. Since there was no such disclosure by the juror in this case, the Ebner test was inapplicable. The High Court further found that the failure of the juror to disclose a prior acquaintance with the investigating officer did not, in itself, constitute bias. The Court concluded that the appellant had not demonstrated any actual bias or an apprehended bias on the part of the juror. The Court of Appeal's decision to set aside the conviction and order a new trial was thus found to be in error. The High Court reinstated the original conviction and sentence.

The High Court ordered that McCormick's convictions on all counts be restored, and the original sentence imposed by the trial judge be reinstated. The Court of Appeal's orders setting aside the conviction and directing a new trial were quashed. The appellant's appeal against sentence was dismissed, and the original sentence was to be enforced.

Orders