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.

Crimes Act 1900 LEGISLATION CITED: 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

IN THE COURT OF CRIMINAL APPEAL 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).