Citation: Cohen v Regina [2006] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 15 August 2006
Judges: Grove J, Adams J, Hislop J
Background
The appellant, an accountant, was convicted in the District Court on four counts of obtaining a valuable thing by deception and three counts of money laundering, arising from an alleged scheme to defraud financiers using false invoices and fraudulently endorsed cheques. The trial ran for thirty-seven sitting days over approximately two months, far exceeding its original ten-day estimate. The co-offender was an associate whose company received the proceeds of the scheme.
The Crown's case depended substantially on the evidence of an independent broker, Meyer, who had himself been convicted for his role in the same offences. The prosecution alleged the appellant, as the accountant involved, had knowingly directed Meyer to falsify documents and assisted in incorporating a company to facilitate deposit of a stopped cheque.
The trial was complicated by the discharge of two jurors, an extended Christmas adjournment, and a six-day absence by the jury foreman due to serious illness during deliberations. The jury of ten returned guilty verdicts on the day the foreman returned.
Legal Issues
- Whether the trial judge erred in failing to discharge the jury at various points, including following juror misconduct, the discharge of a second juror, and the extended illness of the foreman during deliberations
- Whether the prosecution committed a miscarriage of justice by alleging, for the first time in its closing address, that financial accounts tendered in evidence were inaccurate or false, without any supporting evidence and without prior notice to the defence
- Whether the trial judge was obliged to give a specific direction based on the principle in R v Tighe and Meagher regarding the position of a professional person who acts within their ordinary duties
Decision
The Court allowed the appeal on part of Ground 2, which concerned the prosecution's conduct in its closing address. The Crown had tendered financial accounts during the trial without challenge, yet raised for the first time in its address to the jury an allegation that those accounts were inaccurate or false. The Court found no evidence had been led to support that allegation.
The Court held this approach was fundamentally unfair to the defence. An allegation of that nature was a matter for evidence, not submission, and the defence was entitled to timely notice so it could properly respond. By raising it only in the closing address, the prosecution deprived the defence of any meaningful opportunity to answer it. The trial judge should have directed the jury to disregard the submission, and the failure to do so constituted a miscarriage of justice.
On the jury management grounds, the Court considered the various disruptions during the lengthy trial but did not find that the trial judge had erred in the decisions made regarding juror discharge and continuation of the trial.
On the Tighe direction ground, the Court rejected the argument that the trial judge was required to direct the jury that they should acquit the appellant if there was a reasonable possibility he was merely acting as an accountant in the ordinary course. The Crown had squarely put dishonesty and knowing participation at the forefront of its case, and the judge had clearly directed the jury on the need to be satisfied of dishonesty. No application for such a direction had been made at trial, and the Court refused leave to advance this ground on appeal.
Orders Made
- Appeal allowed
- New trial ordered
Key Takeaways
- A prosecution's closing address cannot introduce factual allegations, particularly allegations that tendered documents are false or inaccurate, without evidentiary foundation and prior notice to the defence. Raising such an allegation for the first time in an address constitutes a matter for evidence, not submission.
- Where a jury is not directed to disregard an unsupported and prejudicial submission made in the prosecution's closing address, a miscarriage of justice can result sufficient to warrant a new trial.
- The Court of Criminal Appeal confirmed that the professional role of an accountant acting in an ordinary capacity does not require a specific jury direction where the Crown's case is squarely built on the allegation of knowing and dishonest participation in a fraudulent scheme.
- Appellate courts require that applications for specific jury directions, such as a Tighe direction on the position of professional persons, ordinarily be made at trial. Failure to make such an application at trial ordinarily requires leave on appeal, which the court may decline.
- Extended and disrupted trials, including multiple juror discharges and a foreman's illness during deliberations, do not automatically require the discharge of the remaining jury. Each set of circumstances requires its own assessment at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 178BA
- Confiscation of Proceeds of Crime Act 1989 (NSW) s 73(2)
Cases:
- R v Locchi (1991) 22 NSWLR 309
- R v Tighe and Meagher (1926) 26 SR (NSW) 94