Citation: Adam James McCORMICK v Regina [2007] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 28 March 2007
Judge(s): Hunt AJA, Johnson J, Latham J
Background
The appellant was a councillor on Rockdale City Council who was convicted in the District Court of two counts of corruptly agreeing to receive a benefit and seven counts of giving false evidence before ICAC. The Crown case was that he agreed to accept $70,000 per development application in exchange for persuading fellow Labor councillors to support those applications. When called before ICAC to explain lawfully intercepted telephone conversations and text messages, he denied any corrupt involvement.
The appellant was sentenced to an aggregate of five years imprisonment with a non-parole period of three years, following partial accumulation of the individual sentences. His co-offender, Mr Smyrnis, who was the sole Crown witness and who had agreed to pay the bribes, received a significantly more lenient sentence served by way of periodic detention.
The appellant brought both a conviction appeal and a sentence appeal. The conviction appeal focused on a single procedural issue during the trial: whether the trial judge should have discharged the jury after the Crown witness indicated he may have recognised a female juror as a former client.
Legal Issues
- Whether the trial judge erred in refusing to discharge the jury after the Crown witness indicated he believed he recognised a juror as a former legal client, when no juror had disclosed any such recognition.
- Whether the correct legal test for apprehended bias applied to jurors in these circumstances was the Ebner test for judicial bias, or the Webb test for juror partiality.
- Whether the appellant's sentence was manifestly excessive or gave rise to an unjustifiable sentencing disparity when compared with the sentence imposed on his co-offender, Mr Smyrnis.
Decision
Conviction appeal: discharge of the jury
The trial judge, upon being informed of Mr Smyrnis' concern, responded by directing the jury to observe Mr Smyrnis in the courtroom, informing them of his former role as a solicitor, and asking whether any juror recognised him. No juror responded or sent a note indicating any prior acquaintance. The trial judge concluded that without any indication from a juror of prior knowledge, there was no basis to discharge the jury.
The Court of Criminal Appeal held that the trial judge applied the correct approach. The Ebner test, developed for apprehended bias on the part of judicial officers, was inapplicable in the absence of any disclosure by a juror. Without any juror having acknowledged a connection, there was no factual foundation from which a reasonable apprehension of partiality could arise. The appropriate test remained that in Webb v The Queen, which addresses juror partiality, and it was not engaged on the facts as they stood.
Sentence appeal: disparity
The appellant argued that his sentence was disproportionately harsh compared with the periodic detention ordered for Mr Smyrnis. The Court acknowledged that an element of leniency is inherent in periodic detention but rejected the disparity argument. The sentencing judge for Mr Smyrnis had taken into account extraordinary subjective factors, including Mr Smyrnis' profound remorse, his early guilty plea, his efforts to encourage co-offenders to plead guilty, his repayment of $50,000, two years of voluntary community work, and public apologies through various media outlets.
By contrast, the appellant maintained, even after conviction and in the face of overwhelming evidence, that the payments he had sought were legitimate political donations. The sentencing court explicitly recognised this stark difference in subjective circumstances. The Court of Criminal Appeal found no basis for a legitimate sense of grievance and dismissed the sentence appeal.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- The Ebner test for apprehended bias, developed in the context of judicial officers, does not apply to jurors in the absence of any disclosure by a juror of a prior connection with a witness or party.
- Where a Crown witness expresses uncertainty about whether he recognises a juror but no juror responds to a direct judicial inquiry, there is no factual foundation for a reasonable apprehension of juror partiality under the Webb test.
- A sentencing disparity argument will not succeed where the co-offender's more lenient sentence is attributable to significant and genuine subjective factors, including exceptional remorse, cooperation, and remedial conduct, that were absent in the appellant's case.
- In dismissing the sentence appeal, the Court confirmed that the sentencing exercise is inherently discretionary and that comparing sentences between co-offenders requires account to be taken of the full range of objective and subjective factors considered by each sentencing court.
- Maintaining a denial of criminality after conviction, in circumstances where a co-offender displayed remorse rarely seen by the sentencing court, is a legitimate basis for imposing a materially more severe sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 249B(1) (corruptly agreeing to receive a benefit)
- Independent Commission Against Corruption Act 1988 (NSW), s 87 (giving false evidence)
- Jury Act 1977 (NSW), s 38(7)(b) (call upon jury panel to identify potential partiality)
Cases
- Webb v The Queen (1994) 181 CLR 41 (test for juror partiality)
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (test for apprehended bias by judicial officers)