COHEN v REGINA [2006] NSWCCA 247

COHEN v REGINA [2006] NSWCCA 247

The appeal was allowed because the Crown prosecutor's closing address wrongly submitted, for the first time and without evidentiary foundation or prior notice, that financial accounts tendered by the Crown were false or misleading. That submission was a significant and prejudicial alteration of the Crown case, the trial judge should have required it to be withdrawn or directed the jury to disregard it, and the resulting miscarriage of justice could not be cured by the proviso.

Jurisdiction
Australia
Judgment Date
15 August 2006
Procedural Posture
Criminal Conviction Appeal and Application for Leave to Appeal Against Sentence / Appeal From Convictions in the District Court; Appellant Sought Leave to Appeal From Sentences
Outcome
Appeal allowed; new trial ordered.
Legal Topics
['conviction Appeal' 'obtaining a Valuable Thing by Deception' 'money Laundering' "prosecutor's Closing Address" 'miscarriage of Justice' 'jury Discharge' 'financial Accounts Tendered in Evidence' 'new Trial']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'obtaining a Valuable Thing by Deception' 'money Laundering' "prosecutor's Closing Address" 'miscarriage of Justice' 'jury Discharge' 'financial Accounts Tendered in Evidence' 'new Trial']

Case Brief

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Procedural Posture

Criminal Conviction Appeal and Application for Leave to Appeal Against Sentence / Appeal From Convictions in the District Court; Appellant Sought Leave to Appeal From Sentences

Legal Issues

  1. 1 ['Whether the trial judge erred by failing to discharge the jury after juror misconduct, juror illness, juror discharge and alleged jury disaffection.' "Whether the Crown prosecutor's closing address unfairly alleged for the first time, without evidence or notice, that Lameri Industries Pty Limited financial accounts were false or misleading." "Whether the trial judge should have discharged the jury or directed the jury to disregard the Crown prosecutor's submissions about the financial accounts." 'Whether the proviso to s 6(3) of the Criminal Appeal Act 1912 should be applied despite the improper address.' 'Whether the trial judge erred in allowing late Crown witnesses to give evidence.' "Whether the trial judge was required to direct the jury about an accountant's duty to a client by reference to R v Tighe and Meagher (1926) 26 SR (NSW) 94."]

Ratio Decidendi

The appeal was allowed because the Crown prosecutor's closing address wrongly submitted, for the first time and without evidentiary foundation or prior notice, that financial accounts tendered by the Crown were false or misleading. That submission was a significant and prejudicial alteration of the Crown case, the trial judge should have required it to be withdrawn or directed the jury to disregard it, and the resulting miscarriage of justice could not be cured by the proviso.

Court Disposition

Appeal allowed; new trial ordered.

Orders

  • ['Appeal allowed.' 'New trial ordered.']