Citation: Di Maria v R [2012] NSWCCA 127
Court: Court of Criminal Appeal, NSW
Date: 18 June 2012
Judge(s): McClellan CJ at CL
Background
The appellant was convicted by jury of murder following a trial commencing in June 2009. After conviction, his solicitors sought an investigation by the Sheriff into a potential jury irregularity. The concern centred on one juror who was a neighbour and friend of a man named Mr Lippett, who in turn had been in a relationship with the appellant's former girlfriend, Ms Ussia. Ms Ussia had not given evidence at trial.
The allegation, supported by affidavit evidence from Ms Ussia, was that the juror and Mr Lippett had communicated during the trial, and that the juror had told Mr Lippett that the appellant's former girlfriend had given evidence on a particular day. A jury note from the trial (MFI 13), which questioned the credibility of a girlfriend who gave evidence, was also raised as a related concern.
The appellant brought a Notice of Motion before a single judge of the Court of Criminal Appeal seeking a directions hearing, with a view to having the relevant witnesses (the juror, Mr Lippett, and Ms Ussia) examined before the court prior to the appeal being heard.
Legal Issues
- Whether the court should order the examination of witnesses, including the juror, Mr Lippett, and Ms Ussia, in connection with an alleged jury irregularity
- Whether the available evidence was sufficient to justify cross-examination of those witnesses as a legitimate forensic exercise
- Whether the jury note MFI 13 raised a separate concern about juror conduct or bias
Decision
McClellan CJ at CL accepted that some communication had occurred between the juror and Mr Lippett during the trial, and that this communication included the fact that the appellant's former girlfriend had given evidence. To that extent, the juror had departed from the trial judge's direction not to discuss the trial with any person outside the jury room.
However, the court found no evidence that the juror and Mr Lippett had discussed the content of the evidence, or that anything had passed between them capable of affecting the juror's impartial participation in deliberations. The juror and Ms Ussia both confirmed they had never met or spoken to each other. The investigating Sheriff's officer had observed that the juror may not have been entirely forthcoming, but attributed this to embarrassment rather than bad faith, and also noted that Ms Ussia may have overstated her account in order to assist the appellant's case.
On the jury note MFI 13, the court was satisfied the investigation had resolved the matter: the note had been authored by a different juror, not the one who had spoken with Mr Lippett.
Regarding the proposed cross-examination, the court noted that counsel frankly conceded his instructions would only permit him to ask witnesses for their account of events. There was nothing before the court to suggest that this would produce evidence demonstrating a miscarriage of justice had occurred. In those circumstances, the court was not persuaded there was a legitimate forensic reason to make the orders sought, and dismissed the Notice of Motion.
Orders Made
- Notice of Motion dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that it will only intervene in a conviction on the basis of jury irregularity where a miscarriage of justice has actually occurred, not merely where some procedural departure by a juror is established.
- Where apprehended bias in a juror is alleged, the applicable test is the same as that used for apprehended bias on the part of a judge, as established in Webb v R (1994) 181 CLR 41.
- A finding that a juror discussed some aspect of a trial with an outside person does not, of itself, provide grounds for appellate intervention; the court must be satisfied the irregularity could have affected the jury's impartial deliberations.
- Refusing the order for examination, the court emphasised that there must be a legitimate forensic purpose in examining witnesses, meaning a genuine prospect that the examination would produce evidence of a miscarriage of justice, not merely elicit accounts that add nothing material.
- Under s 53B of the Jury Act, a juror may be discharged where there is an appearance that the juror cannot give impartial consideration to the case, including by reason of familiarity with witnesses.
Legislation and Cases Referenced
Legislation:
- Jury Act (NSW), s 53B
Cases:
- Domican v R (No 3) (1990) 46 A Crim R 428
- Webb v R [1994] HCA 30; (1994) 181 CLR 41
- McCormack v R [2007] NSWCCA 78