AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 18 June 2004

REGINA v Ross Allan LAMERI REGINA v Phillip Barry COHEN

[2004] NSWCCA 217

Fraud & dishonesty
CRIMINAL APPEAL ACT 1912, S5F(3A) EVIDENCE ACT, SS55, 137 WHETHER EVIDENCE RELEVANT

Citation: REGINA v Ross Allan LAMERI; REGINA v Phillip Barry COHEN [2004] NSWCCA 217
Court: Court of Criminal Appeal, New South Wales
Date: 18 June 2004
Judge(s): Mason ACJ, Tobias JA, Howie J

Background

The two respondents were charged on an indictment containing seven counts: four counts of obtaining a valuable thing by deception under the Crimes Act 1900 and three counts of money laundering under the Confiscation of Proceeds of Crimes Act 1989. The money laundering counts were dependent on establishing guilt on the first four. The Crown's primary witness was a finance broker who alleged he had facilitated a series of fraudulent bank transactions involving false invoices on the instructions of the accused.

The transactions at the centre of the case involved false M & C Pty Ltd invoices presented to a bank to obtain cheques, which were then directed into accounts controlled by one of the accused. The broker's evidence was central to establishing the accused's involvement and their dishonest intent throughout the scheme.

After the jury was empanelled, trial counsel for the accused raised a broad objection to a substantial body of Crown evidence. The District Court judge, Payne DCJ, ruled on the admissibility question and excluded certain evidence. The Deputy Director of Public Prosecutions appealed urgently to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912, before the Crown had even opened its case to the jury.

  • Whether the appeal met the threshold under s 5F(3A) of the Criminal Appeal Act 1912, namely that the evidentiary ruling was wrong and that it eliminated or substantially weakened the prosecution's case.
  • Whether the evidence objected to was relevant within the meaning of s 55 of the Evidence Act 1995 (requiring that evidence could rationally affect the assessment of a fact in issue).
  • Whether, even if relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995, requiring its exclusion.
  • Whether the evidentiary challenge should have been raised before the jury was empanelled.

Decision

The Court of Criminal Appeal allowed the appeal, finding that the District Court's ruling was wrong and that it did eliminate or substantially weaken the prosecution's case within the meaning of s 5F(3A).

On the relevance question under s 55, the court was satisfied that the disputed evidence was capable of rationally affecting the assessment of facts in issue, particularly in establishing the involvement and dishonest intent of the accused. On the s 137 balancing exercise, the court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice so as to require exclusion. The Crown case turned heavily on the evidence in question, and excluding it had the consequence of gutting the prosecution's ability to prove its case.

All three judges endorsed the view that the admissibility challenge should have been raised and resolved before the jury was empanelled. Howie J emphasised that the judge below had been placed in a difficult position, having just concluded another jury trial and being required to rule on complex evidentiary questions at short notice, with the jury waiting and the Crown yet to open. The criticism of her Honour's reasoning was therefore to be viewed in that context.

Howie J went further, noting that the failure to resolve such issues pre-trial was inimical to the administration of justice. His Honour also cautioned that where the Crown fails to raise challenges before empanelment when it was aware of the issue, this Court may in future be unpersuaded that the exclusion falls within the scope of the appeal provision.

Orders Made

  • Appeal allowed.

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912, a Crown appeal against an evidentiary ruling will only succeed if the ruling was wrong and if it eliminated or substantially weakened the prosecution's case; both elements must be established.
  • The Court of Criminal Appeal confirmed that evidence relevant under s 55 of the Evidence Act 1995 will still be excluded under s 137 only where its probative value is outweighed by the danger of unfair prejudice, a test that requires careful weighing of the actual significance of the evidence to the Crown case.
  • Substantial evidentiary challenges of the kind capable of triggering a s 5F(3A) appeal should be raised and resolved before the jury is empanelled, not after.
  • Howie J signalled that a Crown's failure to bring pre-trial challenges to its own attention before empanelment, when it was or should have been aware of those challenges, may in future result in the Court declining to find that the rejected evidence falls within the scope of s 5F(3A).
  • Trial judges bear a corresponding responsibility, in the Court's view, to raise with counsel before empanelment whether any challenge to the Crown case exists and whether the Crown contends that exclusion would substantially weaken its case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 55, 137
- Crimes Act 1900 (NSW), s 178BA
- Confiscation of Proceeds of Crimes Act 1989 (NSW), s 73(2)

Cases cited: No cases were identified in the text of the judgment provided.