Di Maria v R [2012] NSWCCA 127

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Di Maria v R [2012] NSWCCA 127 Hearing dates: 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: T Game SC/S J Buchen (Appellant) N Adams/J Davidson (Crown) Solicitors: Legal Aid of NSW (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2008/20055 Decision under appeal Date of Decision: 2010-01-29 00:00:00 Before: Latham J File Number(s): 2008/20055

Judgment 1HIS HONOUR: The appellant was convicted following a trial with a jury of murder. He has appealed his conviction. 2The 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. 3Later 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. 4Ms 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. 5Some 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." 6The MFI also indicated that this was an issue raised by only one juror. 7The request for an investigation was referred to me by the Sheriff. I decided that the matter should be investigated. 8Subsequently Ms Ussia swore a further affidavit. In that affidavit she stated the following matters: (a) she recalls an occasion when she told the appellant that she would not disclose that a friend of Lippett's was on the jury because she did not wish them to get the juror "in trouble"; (b) on one occasion Mr Lippett accused her of being "the x [sic] girlfriend who gave evidence at Joshua's trial"; (c) after the appellant was convicted she told Mr Lippett that she was going to disclose that the juror was on the jury. This caused a fight. Lippett told her that the juror was "a good bloke" and "did nothing wrong" (annexure D to the affidavit of Frances Low affirmed 14 March 2012; affidavit of Francesca Ussia sworn 28 October 2010 at [6]); and (d) she is "aware" that Lippett spoke to the juror after their fight. 9The relevant juror was interviewed. He indicated that he knew Mr Lippett and considered him a friend. However, he did not know Ms Ussia but accepted that he may know of her. He said he had never met her. He said that he did not discuss the evidence in the appellant's trial with any person outside the jury room. He said the he bumped into Mr Lippett on the way to the trial one day and "he asked me where I was going and I said, I didn't mention anything about the trial. I said I was going to court, it was jut a pure coincidence that he knew about the same case, but I didn't mention anything about the case." He said he did not tell anyone that he had spoken to Mr Lippett and none of the jurors knew about Ms Ussia. 10Although the Sheriff endeavoured to interview Mr Lippett this has not occurred. 11In relation to the jury note the juror who was interviewed recalled that another juror was the author of MFI 13. He gave the investigating Sheriff's officer information about the discussions in the jury room relating to the issues raised in the note. 12Section 53B of the Jury Act provides the circumstances in which an individual juror may be discharged. Illness or infirmity are dealt with. Section 53B(b) provides that a juror may be discharged where it appears to the court that a juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses. Section 53B(d) provides that a court may also discharge a juror for any reason affecting the juror's ability to perform the functions of a juror. 13Where an irregularity occurs in the conduct of a trial by reason of the conduct or circumstances relating to a particular juror the Court of Criminal Appeal may intervene and quash the conviction. However, the court will only intervene if a miscarriage of justice has occurred: Domican v R (No 3) (1990) 46 A Crim R 428. Where it is alleged that there has been a miscarriage of justice by reason of the apprehension of bias in a juror the test to be applied is the same as that applicable to an apprehension of bias on the part of a judge: Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 68-69; McCormack v R [2007] NSWCCA 78. 14The appellant has by Notice of Motion brought the matter before a single judge of the court seeking a directions hearing, prior to the hearing of the appeal, so that orders be made and directions given, if appropriate, "concerning a requested examination before the court of relevant witnesses in relation to an issue of possible jury irregularity during the trial of the appellant." 15The appellant submitted that the process of investigation by the Sheriff had been dilatory. It was further submitted that it was apparent from the information which the Sheriff has elicited that the juror and Mr Lippett did speak to each other and that they must have discussed what was occurring in the trial and that accordingly an opportunity to ask further questions of Mr Lippett, Ms Ussia and the juror may elicit information which discloses a miscarriage of justice. 16I am satisfied that Mr Lippett and the juror must have discussed some matters which were occurring in the trial. This also obviously included a discussion of the fact that the appellant's former girlfriend had given evidence. To this extent it is apparent that the juror has departed from the direction given by the trial judge not to discuss the trial with any person. 17The Sheriff's officer who investigated the matter formed the view that there may possibly be unsatisfactory responses from the juror who may not have been entirely truthful about the situation. This may be explained by the juror's embarrassment at being interviewed about matters which a juror would have recognised breached his obligations. The Sheriff's officer also concluded that Ms Ussia may have overstated her knowledge of the circumstances in an attempt to support the concerns raised by the appellant's solicitor. 18Notwithstanding that the Sheriff was unable to complete his investigation by reason of the fact that Mr Lippett has apparently not cooperated I am not persuaded that the orders sought should be made. 19The issue in relation to MFI 13 has been satisfactorily resolved. Investigation confirms that it was written by a juror other than the juror who spoke to Mr Lippett. 20With respect to Ms Ussia, both the juror and Ms Ussia agree that they have never met or spoken to each other. Although Ms Ussia says that she was told of a discussion between the juror and Mr Lippett, apart from the fact that an identified person had given evidence that day, there is nothing to suggest that anything passed between them which could have affected the juror's impartial participation in the jury's deliberations. There is nothing to suggest that there was a discussion between the juror and Mr Lippett of the evidence. 21In the event although there is evidence of an association between the juror and Mr Lippett I am not satisfied that there is evidence which would justify the making of orders for the cross-examination of the relevant persons. As counsel conceded, all that his instructions would allow him to do if cross-examination was allowed would be to put a question seeking to elicit an account of the events which occurred. There is nothing to suggest that this would bring forward evidence demonstrating that a miscarriage of justice had taken place. 22In the circumstances I am not persuaded that there is a legitimate forensic reason for making the orders sought by the appellant. The Notice of Motion is dismissed.