Citation: LAMERI v R [2007] NSWCCA 111
Court: New South Wales Court of Criminal Appeal
Date: 10 April 2007
Judge(s): McClellan CJ at CL, Howie J, Hall J
Background
The appellant was jointly tried with a co-accused in the District Court on multiple counts of obtaining a valuable thing by deception and three counts of money laundering. Both accused were convicted on all counts and sentenced together.
The co-accused had already appealed successfully to the Court of Criminal Appeal in 2006, with that Court ordering a new trial. The appellant then brought his own appeal raising the same ground that had succeeded in the co-accused's case.
The central issue concerned the Crown Prosecutor's conduct during final address at the original trial.
Legal Issues
- Whether the Crown Prosecutor's final address to the jury constituted an improper departure from the evidence actually adduced at trial, effectively amounting to the prosecutor giving evidence himself
- Whether, even if that error was established, the court should nonetheless apply the proviso (that is, decline to order a new trial on the basis that no substantial miscarriage of justice occurred)
Decision
In his opening address, the Crown Prosecutor indicated he would tender the full financial accounts of a company but did not suggest those accounts were false or unreliable. The Crown's evidentiary case focused on the falsity of certain invoices, while the financial accounts were tendered but not otherwise addressed in evidence.
In his final address to the jury, however, the Crown Prosecutor changed course. He described the financial statements as false and presented his own detailed analysis of their contents to the jury. The Court of Criminal Appeal had already found, in the co-accused's appeal, that this conduct crossed the line: the prosecutor had effectively presented his own analysis as though it were evidence, which was not appropriate and caused the trial to miscarry.
The Crown conceded that the same error infected the appellant's trial and that his conviction must also be quashed. The Court raised with both parties whether the proviso might nonetheless be applied to preserve the conviction. The appellant opposed that course and, significantly, the Crown also accepted that this was not a case where the proviso should apply. Accepting that concession, the Court ordered the conviction quashed and a new trial.
Orders Made
- Conviction quashed
- New trial ordered
Key Takeaways
- A Crown Prosecutor who presents an independent analysis of documentary evidence during final address, going beyond the evidence adduced at trial, may cross into the improper territory of effectively giving evidence, causing a miscarriage of justice.
- Where the same procedural error infects the trials of co-accused tried jointly, the Court of Criminal Appeal will generally apply the same outcome to each conviction.
- The proviso, which allows an appellate court to decline to order a new trial despite a trial error, was not applied here, with the Crown itself accepting it was not appropriate to do so.
- In dismissing the possibility of invoking the proviso, the Court treated the Crown's concession on that point as a significant and determinative consideration.
- The Court of Criminal Appeal in Cohen v Regina (2006) established the underlying principle applied in this appeal, demonstrating that findings of prosecutorial error in one co-accused's appeal can directly ground a successful appeal by another co-accused from the same trial.
Legislation and Cases Referenced
Cases:
- Cohen v Regina (2006) NSWCCA 247
No specific legislation was cited in the judgment.