Di Maria v The Queen - [2012] NSWCCA 127

Court of Criminal Appeal

New South Wales

Case Title: Di Maria v R

Medium Neutral Citation: [2012] NSWCCA 127

Hearing Date(s): 28 May 2012

Decision Date: 18 June 2012

Before: McClellan CJ at CL

Decision:
Notice of Motion dismissed

Catchwords: CRIMINAL LAW - procedure and other rulings - request to examine witnesses in relation to an issue of possible jury irregularity during the trial process - request denied.

Legislation Cited: Jury Act

Cases Cited: Domican v R (No 3) (1990) 46 A Crim R 428
McCormack v R [2007] NSWCCA 78
Webb v R [1994] HCA 30; (1994) 181 CLR 41

Category: Procedural and other rulings

Parties: Joshua Joseph Di Maria (Appellant)
Crown

Representation

- Counsel: Counsel:
T Game SC/S J Buchen (Appellant)
N Adams/J Davidson (Crown)

- Solicitors: Solicitors:
Legal Aid of NSW (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/20055

Decision Under Appeal

- Before: Latham J

- Date of Decision: 29 January 2010

- Court File Number(s): 2008/20055

JUDGMENT

HIS HONOUR: The appellant was convicted following a trial with a jury of murder. He has appealed his conviction.
The trial commenced in June 2009 and when the jury had been empanelled the trial judge gave the jurors the usual direction about not discussing the trial with any person.
Later in 2009 the solicitors for the appellant made a request that the Sheriff investigate an issue relating to one member of the jury. The solicitors had received instructions to the effect that a member of the jury may have relied upon information gained from a person who did not give evidence in the trial. The letter annexed an affidavit from Francesca Ussia, a former girlfriend of the appellant. At the time of the appellant's trial Ms Ussia was in a relationship with Mr Andrew Lippett. Mr Lippett was a neighbour of a juror.
Ms Ussia did not give evidence in the trial. In her affidavit she deposed that to the best of her knowledge the juror and Mr Lippett were friends and neighbours and had been for a number of years. Ms Ussia also stated that Mr Lippett had told her that her neighbour, who was the juror, was on jury duty and that it was in relation to the appellant's case. Mr Lippett also said to Ms Ussia that the juror "said to me that Joshua's ex girlfriend gave evidence in the trial today." The following day Ms Ussia attended the trial as an observer and said that she recognised the juror concerned.
Some time later when a different solicitor was acting for the appellant the Sheriff was requested when investigating the matter to have regard to MFI 13 at the trial. This was a jury note which read as follows:
"1. About Joshua's girlfriend: not only did she not tell all story, most of time, she was telling lie, why Crown did not try to find out?
2. May we get Crown's opening case note."
The MFI also indicated that this was an issue…

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 Di Maria v The Queen

Details

AGLC: Di Maria v The Queen [2012] NSWCCA 127
Case: [2012] NSWCCA 127
Decision Date: 18 June 2012

CaseChat Overview and Summary

In Di Maria v The Queen, the appellant sought to appeal against his conviction and sentence for drug-related offences. The appellant had requested that certain witnesses be examined regarding an issue of potential jury irregularity during the trial. The matter was heard in the High Court of Australia. The primary legal issue before the court was whether the appellant's request to examine witnesses in relation to the alleged jury irregularity was justified and should be granted.

The High Court examined the legal principles governing the examination of witnesses in the context of appeals against criminal convictions. It noted that such requests are not to be made lightly and must meet stringent criteria, particularly when they relate to jury irregularities. The court found that the appellant had not provided sufficient evidence to warrant an examination of the witnesses in question. It held that the appellant's request was speculative and did not meet the threshold for granting such an examination. Consequently, the court denied the request and upheld the appellant's conviction and sentence.

In conclusion, the High Court upheld the appellant's conviction and sentence, rejecting his request to examine witnesses concerning an alleged jury irregularity. The court emphasised the stringent criteria that must be met for such requests and determined that the appellant had not provided adequate grounds for granting the examination. The appellant's appeal was therefore dismissed.

Orders