Cohen v Regina

[2006] NSWCCA 247

CITATION:

COHEN v REGINA [2006] NSWCCA 247

HEARING DATE(S):

29 March 2006

 
JUDGMENT DATE: 

15 August 2006

JUDGMENT OF:

Grove J at 1; Adams J at 2; Hislop J at 74

DECISION:

Appeal allowed; New trial ordered

CATCHWORDS:

Conviction appeal - prosecution tendered financial accounts - no evidence suggesting inaccurate or false - allegation made for first time in prosecution address - unfair to defence - should have given timely notice - matter for evidence not submission - jury should have been directed to disregard submission - miscarriage of justice

LEGISLATION CITED:

Confiscation of Proceeds of Crime Act 1989 s 73(2)
Crimes Act 1900 s 178BA

CASES CITED:

R v Locchi (1991) 22 NSWLR 309
R v Tighe and Meagher (1926) 26 SR (NSW) 94

PARTIES:

Regina

v

Phillip Barry COHEN (Appellant)

FILE NUMBER(S):

CCA 2005/883

COUNSEL:

Mr Patrick Power (Crown)
Mrs C Nash with Mr D Kang (Appellant)

SOLICITORS:

S Kavanagh (Crown)
Jeffreys & Associates (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1104
LOWER COURT JUDICIAL OFFICER:	Kinchington ADCJ

2005/883

GROVE J
ADAMS J
HISLOP J

15 August 2006
Phillip Barry COHEN v REGINA

Judgment

1 GROVE J: I agree with Adams J.

2 ADAMS J:

Introduction

3 Philip Barry Cohen (the appellant) and Ross Allan Lameri were convicted on 3 February 2005 of four charges of obtaining a valuable thing by deception contrary to s 178BA of the Crimes Act 1900 and three charges of money laundering under s 73(2) of the Confiscation of Proceeds of Crime Act 1989. In respect of the former offences the maximum penalty is five years’ imprisonment and for the latter offences, twenty years’ imprisonment. The trial comprised thirty-seven sitting days, although it commenced on 9 December 2004 and concluded on 3 February 2005, a period of fifty-seven days. The original estimate of the trial was ten days. Problems arose during the trial requiring the discharge of two jurors and a lengthy adjournment during the illness of another. I will come to these matters in due course as they provide the basis for a number of grounds of appeal. On each of counts 1, 2, 3 and 4 Kinchington ADCJ sentenced the appellant to concurrent fixed terms of imprisonment of two years and six months, commencing 28 October 2005 and expiring 27 April 2008. In relation to each of counts 5, 6 and 7 the appellant was sentenced to concurrent terms of imprisonment of three years and three months commencing 28 January 2007 and expiring 27 April 2010, with a non-parole period of two years and two months expiring on 27 March 2009. Accordingly, the overall sentence imposed on the appellant was one of four years and six months of which three years and five months was a non-parole period.

4 The appellant appeals from his convictions and seeks leave to appeal from the sentences.

Outline of Facts

5 The following outline is taken principally from the Crown submissions on the appeal. This description is, as I understand it, not disputed. The prosecution case was that the appellant and his co-offender represented to a Mr Meyer, and through him to the financiers, that finance was needed by a third party to purchase sawmilling equipment from Lameri Industries Pty Limited, a company associated with Mr Lameri and a client of the appellant, an accountant. The appellant gave, it was alleged, explicit further instructions to Meyer to falsify documents and deposit funds. Counts 1 and 2 in the indictment related to applications for finance to the bank on behalf of Ravel Pty Limited and Lameri Industries Pty Limited, which were lodged on 16 December 1999, purportedly from a company named M & C Pty Limited, listing various items of equipment with their serial numbers. Meyer’s evidence was that Lameri falsely created these invoices. The directors of M & C Pty Limited gave evidence that they did not issue the invoices and there was further evidence from the suppliers of the equipment listed in the invoices that the purported serial numbers of the listed equipment were false. In due course, Colonial State Bank and Capital Finance issued cheques in the amounts totalling the invoices. These cheques were made out to M & C Pty Limited. It was Meyer’s evidence that the appellant, in respect of the first three cheques, told him to endorse the cheques himself to make them payable to Lameri Industries and that the appellant had given Meyer the name in which he should sign the endorsement, saying that this was the name of a “mate” of his from M & C Pty Limited. The cheques were deposited into the bank account of Lameri Industries Pty Limited on 5 and 28 January 2000. In respect of the fourth cheque, Meyer said that he had attempted to deposit it into the bank account of Lameri Industries Pty Limited but that the bank would not accept the cheque. He said that he informed the appellant of this and that subsequently the appellant told him that he would assist Mr Lameri to set up a company called M & O Pty Limited, change the “C” on the cheque to an “O” and deposit the money into the new account. Meyer said that the appellant later advised him that M & O Pty Limited had been incorporated and that he should give the cheque to Mr Lameri when he saw him next. Meyer said that he did so, although at that time it was still made out to M & C Pty Limited. The cheque was deposited into the bank account of M & O Pty Limited on 10 March 2000 but, on 13 March 2000, Capital Finance stopped payment.

6 The Crown established, amongst other things, that the appellant had lodged the application for incorporation for M & O Pty Limited on 21 February 2000.

7 The amount involved in the first count was $203,000, in the second and third counts, $351,520 each and in the fourth count $252,900.

8 It is clear from this brief account of the Crown case that it was essential that the jury accept Meyer as a credible and reliable witness. Meyer was an independent broker who, amongst other things, would lodge applications for finance on behalf of various clients. In September 2001 he was charged by police for his involvement in the present offences and was sentenced on 17 May 2002 to an overall term of imprisonment of three years to be served by way of periodic detention. On appeal, this sentence was reduced to an effective term of one year and six months’ imprisonment with a non-parole period of one year one month and two weeks, the sentences to be served by way of periodic detention. The Crown concedes that without Meyer’s evidence the prosecution case against the appellant would probably have failed. On the other hand, together with the documentary evidence in the case, if Meyer’s evidence was accepted, the prosecution case was very strong.

Problems with the Jury

9 Ground 1 of the appeal was particularised in the following way in the appellant’s written submissions –

“(a) The trial judge erred in failing to discharge the jury, which may have been tainted by a juror (Number 8919027) who was discharged on the twenty-first day of the trial because of misconduct;
(b) The trial judged erred in failing to discharge an obviously disaffected jury;
(c) The trial judge erred in discharging a juror on the twenty-second day, who had an interstate holiday booked, prior to the jury being sent out to deliberate, thereby exacerbating an already disaffected jury;
(d) The applicant was unable to make an informed decision as to whether or not to make an application to discharge the juror (“the foreman”) or discharge the jury by the trial judge’s failure to provide sufficient information to the appellant concerning the illness and hospitalization of the foreman, which had occurred on the thirty-second day;
(e) The trial judge erred in failing to discharge the foreman following his illness and his hospitalisation for six days after the judge had finished his summing up; and
(f) The trial judge erred in failing to discharge the jury as a result of the absence of the foreman due to his illness and hospitalisation.

10 The jury of twelve was empanelled on 9 December 2004. On 11 January 2005 one juror was discharged for reasons which I will come to in a moment. On the following day, 12 January 2005, another juror was discharged to enable him to undertake interstate travel which he had previously arranged. On 5 January 2005 another juror delayed the proceedings after requesting that he be permitted to attend a funeral. On 27 January 2005, during the course of jury deliberations, the foreman became seriously ill and did not return until 3 February 2005. The day of his return, the jury, then comprising ten jurors, returned verdicts of guilty in respect of each count on the indictment.

11 Considering that this trial lasted almost two months going over the Christmas holiday period and New Year, it is not unreasonable to surmise that one or more of the jurors were inconvenienced, perhaps seriously inconvenienced by their service.

The First Juror is Discharged

12 On 4 January 2005, the sixteenth day of the trial, a complaint was made by counsel on behalf of Lameri that a juror was looking directly at him and started to wave her finger from side to side “in a cross and negative manner”. The proceedings then adjourned. On the following day Lameri was called on the voir dire and gave evidence to the effect of counsel’s submission. Lameri added that the waving of the finger was in such a way as to indicate that “she was negative towards [me] and she obviously made a decision that I was obviously guilty of some sort”. This alleged conduct occurred when Lameri’s counsel was cross-examining Meyer. Mr King initially sought discharge of the entire jury but he subsequently limited his application to discharge of the single juror. Mr McClintock SC for the appellant told his Honour that he was instructed to support the application “but only to the extent of the one juror obviously”. His Honour gave counsel an opportunity to view the video-recording of the courtroom to see whether it assisted in determining what had happened. On 6 January counsel informed his Honour that the video did not show the particular juror identified by Lameri and hence gave no assistance as to what had happened. The voir dire continued with the evidence of a police officer who was sitting in the back of the Court. The officer said that the juror looked at him and moved her right finger up and down. The officer thought that it was an involuntary twitch indicating nothing.

13 Kinchington ADCJ declined to discharge the juror. His Honour’s reasons for declining to do so included the following –

“It seems to me that as this case has been going for some time now and that a great deal of evidence has been placed before the jury and at the outset of the proceedings I warned the jury of coming to any premature decision on the issues that arise herein. I also told them that of course they could make tentative decisions as to what they thought. They could not make any final decision until they heard all the evidence and heard final addresses from counsel and the directions that I have to give them in accordance with the law. It seems to me that in all the circumstances of this case that if I repeat those directions to the jury that will cover the situation. I am not satisfied from what I have heard that I can draw the conclusion that any one member of the jury and in particular the member of the jury that Mr Lameri said that he observed, indicated that she had pre-judged anything. It may well be that her actions were involuntary. I do not know. It may well be her actions were directed to Mr King. I do not know. It may well be her actions were directed to Mr Lameri. I do not know and I cannot determine on the evidentiary material that has been placed before me…. I am not satisfied that I can conclude from that material that any prejudgment in the mind of the juror has occurred.”

14 On 5 January 2005, the seventeenth day of the trial, commenced at 11am to permit a juror to attend a funeral at 9am. No particular point is made about this except in the sense that it showed that the trial was causing some jurors some inconvenience.

15 On 10 January 2005, the twentieth day of the trial the jury was informed that the appellant was not in attendance for medical reasons and, accordingly, the jury would be discharged for the day and notified later in the afternoon as to whether the trial could proceed on the following day. When the jury had left the court, Mr McClintock SC informed his Honour that, when his Honour had said to the jury what was wrong with his client, she looked directly at him (Mr McClintock) and he thought she mouthed the word “bad” and, shortly after, shook her head mounting the word “shit” a number of times. Mr King said that when she mouthed the latter word she was looking directly at him.

16 On the following day, counsel for both accused submitted that the juror should be discharged. His Honour discharged the juror saying in his reasons for doing so –

“On the one hand, the material that has been placed before me does not show any what I would term wrongful conduct on the part of a juror but it does raise an apprehension that the juror has either prejudged the issues which arise herein or is frustrated with the length of this trial, although all jurors were warned at the outset the trial might be a long trial and go into the New Year.
With the greatest of reluctance I feel I must accede to the request by both counsel for the accused and discharge this juror but particularly as I have assurances from both those counsel on behalf of their clients that they are agreeable that this trial [can] proceed with eleven jurors. In these circumstances I propose to discharge that juror.”

17 After making his ruling, his Honour heard additional short submissions on another aspect of the case and then called in the jury. The case for the Crown had closed. The accused called no evidence and addresses were to commence. When the jury returned to the jury box his Honour said –

“Members of the jury, you have now noticed that there are only eleven of you. I have discharged your fellow juror because my attention has been drawn to the fact that it may be that she is feeling a little frustrated because of the length of this trial having gone and upset about [sic] and that aspect could divert her from the issues that arise here, particularly as we still have some time to go. If that perception is a real perception the half of, particularly, the two accused then undoubtedly they lose their faith in the jury system. It’s important that everyone has faith in the jury system. As I told you, you are the sole judges of the facts in this case.
The fact that I have excused the twelfth member of the jury and discharged her is a fact. I have directed the trial to proceed with eleven so it will be you eleven who will be the judges of facts in this case, nothing more. It is not because I’ve taken an adverse view or anyone has taken an adverse view against that particular juror but because there is a perception that she might be frustrated and might be upset about the length of this trial and I think that for abundant caution, bearing in mind we still have some time to go, that when it comes to you deliberating on the matter that that would lead a person who was feeling that way to make a hasty decision rather than well thought out decisions on the issues that arise in these proceedings.”

18 It is submitted that, having regard to the circumstances surrounding the discharge of the juror, the remaining jurors had become tainted, especially in view of the fact of the time lapse between the first occasion on which her conduct came to the attention of the trial judge and the time that she was finally discharged. It is submitted that, during this period, the jury would have been tainted by what is said to be the disaffection and frustration of the discharged juror. It is submitted that an apprehension arises that the entire jury could have been “contaminated” or their verdict cast into doubt by the events occasioning the discharge.

19 I do not agree with this submission. It is true that there was some evidence that the juror may have been frustrated. However, so far as the earlier conduct was concerned, the learned trial judge considered that the evidence would not justify the conclusion that she was indicating any particular attitude or emotion. His Honour observed the witnesses called on the voir dire namely Mr Lameri and the police officer. I am not satisfied that his Honour’s finding in this respect was wrong. As to the juror’s conduct on a second occasion, it is difficult to interpret. If there was a risk that she was indicating a degree of frustration with the length of the trial and, perhaps, blaming either the accused or their counsel for unjustifiably lengthening it because she thought they were guilty then there can be no doubt that this risk justified her discharge. It may be that the juror expressed these views in the jury room. But this can only be regarded as a speculative possibility. Although I have mentioned the adverse risk, it cannot be regarded as much more than suppositious. If I may say so, I think that his Honour was right to discharge the juror for more abundant caution but I do not see that the mere chance that a juror might have expressed frustration with the length of the trial to other jurors would justify discharging the jury. Indeed, even if that juror had expressed a firm view that the accused were guilty, I do not think that would have justified discharging the jury. The mere statement by one juror of such a conclusion could not justify the conclusion that the jury would not keep an open mind on the guilt or otherwise of the accused as they had been directed to do at the outset by the trial judge. Furthermore, counsel did not seek any further warning to be given to the jury along these lines, although they were given an opportunity by his Honour to seek a further direction. That they did not think it necessary strikes me as a significant indication of the atmosphere of the trial at that point.

20 It is submitted that the conduct of the juror amounted to an attempt by her to communicate with Lameri and counsel. Accepting that this was so, it seems to me that the correct course was taken by his Honour, namely to discharge the juror.

21 On 12 January 2005, the twenty-second day of the trial a juror informed his Honour that in July 2004 he had made arrangements for a two-week holiday in Queensland with his family. The date of the holiday was not mentioned by his Honour but was obviously imminent. His Honour said –

“When this trial started, I think everyone anticipated the trial would be finished by the end of this week, probably earlier. The fact is it has not. It is not likely to finish this week. There is a possibility but not likely. I think that it would probably go into one or two, maybe three, days next week. I may be wrong. It might go longer. That would undoubtedly put pressure on that member of the jury when it comes to entering into the deliberation stage which I think would be unfair. He would be distracted because his family would be away or chatting at the bit to get away and it may cause him to make hurried decisions, whereas…there should be no pressure on any member of the jury to make a hurried decision…
So, in all the circumstances, I propose to discharge the juror from further attendance.”

Both counsel for the accused admitted that, although it was regrettable, the prudent course was to discharge the juror.

22 It is not submitted that Kinchington ADCJ erred in discharging the second juror. It is submitted, however, that the application of that juror for discharge “is further credence for the proposition that the jury became disaffected and frustrated and therefore had a deleterious effect on the ability on the members of the jury to perform their function as judges of the fact.” In my view, the discharge of the jurors gives no credence whatsoever to the proposition that the jury had become disaffected or frustrated.

23 On 18 January 2005 the trial judge commenced summing-up to the jury, observing at the outset –

“Well members of the jury it has now arrived for me to commence the directions of law…they won’t finish today. They will probably go into tomorrow, if not all day tomorrow. I’m, just forewarning you that I am, like everyone else, notoriously wrong in trying to estimate how long. Once lawyers start talking, we seem to continue to talk. But I have a large volume of evidence to take you through. There are a large number of exhibits and I have got to give you directions as to the legal process and the law applicable to the issues that arise in these proceedings. I will try and do it as quickly as I can but bear with me.
We will take adjournments from time to time as I speak to you because I think there is nothing worse than listening to the one monotone in a voice going on ever and ever and ever also it seems that way. So I will try and adjourn about every hour or so to give you a break, even if it is just to walk back to the room and walk back. At least you have got the exercise. We will now adjourn and I will resume at about a quarter to two.”

24 In fact, the summing up did not conclude until 24 January 2005. On 19 January 2005, the twenty-seventh day of the trial, the foreperson made the following request –

“FOREPERSON: Excuse me, you mentioned yesterday that we could request transcript orally – so rather than writing a note – you also mentioned that it would take some time to prepare. We do understand that we won’t get access to it until your summing up has ended, but we had a discussion and we would like the entire transcript, please. That may facilitate - -
HIS HONOUR: Well I’ll put it into its order for you and show it to counsel and we will provide you with a copy of that transcript.”

25 This request suggests to me a jury conscious of its responsibilities and intending to consider the matter very carefully by reference not only to the exhibits but also the evidence. This is inconsistent with the supposition that the jury were frustrated and simply wanted to end the trial.

26 On 20 January 2005, the twenty eighth day of the trial a note was received from the jury –

“Your Honour, one of our jury arrived this morning but is unwell from last night. Can nine of the jury listen to your final summary today, considering we will receive a transcript of your summing up today. The unwell juror can then read it. Can we proceed [with] nine today, but will deliberate when all them are together, hopefully tomorrow?”

27 The jury were informed by his Honour that they could not sit and they were asked to return the following day. When the jury reassembled, the trial judge explained to them that the law required him to ensure that all jurors were present when the summing up is given. His Honour also pointed out to the jury that a transcript of his summing up would not be available although a careful note was being taken and if a question arose about the directions they could be repeated to the jury.

28 On 24 January 2005, the thirtieth day of the trial, the jury retired to consider their verdict at 1pm. This was on a Monday. At 4.13pm the jury were excused overnight. When the jury returned on 25 January 2005, they requested a re-statement of the elements of a joint criminal enterprise and the evidence required in respect of it. The question whether there was a joint criminal enterprise involving the appellant, Lameri and Meyer lay at the very centre of the case. This question indicates to my mind that the jury were working through the elements of the charges. It strikes me as inconsistent with an impatient desire simply to end the trial as soon as possible. At the end of Tuesday, 25 January 2005 the jury sent the judge a note stating that they were still continuing their deliberations, and wished to leave at four o’clock that afternoon and resume at 9.30am on Thursday, namely with a break of a day, which was the Australia Day public holiday.

29 When the proceedings resumed on Thursday, 27 January 2005 the judge was informed that one of the jurors (the foreperson) had taken ill and needed medical treatment. The judge decided to adjourn until the following morning expecting that, in the meantime, there would be a “full report” about the juror’s condition. Counsel did not object to this course. On Friday, 28 January 2005 (the thirty third day of the trial) the juror remained unwell and the trial judge sent the remaining jury home and adjourned the trial to the following Monday 31 January 2005. There was no information about what was wrong with the juror nor as to when he would be fit to resume the deliberations. Counsel for the appellant informed his Honour that he had been instructed to make an application that the juror be discharged with a consequence that the whole jury would need to be discharged, but was unable to make “an informed application without knowing at least some of the particulars of what is occurring with the juror”. Kinchington ADCJ said –

“… the issue then arises of course, we are down to ten, we can proceed with nine in certain circumstances and that is what everyone has got to consider…it may well be that – I do not know, I think it is a very important matter from your client’s point of view because if the trial is to proceed with nine, it would have to proceed with the consent of the two accused in writing as I understand the legislation, bearing in mind the length of the trial…so they obviously have to think of this eventuality if they want and it is terribly difficult. It puts a lot of pressure on everyone.”

The legislative reference is, no doubt, to s22 of the Jury Act 1977.

30 It was submitted in this Court that the trial judge should have enquired about the state of the juror’s health so that an application to discharge the jury could be made upon a proper basis. No application was made by counsel to this effect nor was it suggested by counsel that the jury should be discharged because of the then absence of the juror for illness. In the circumstances, with an intervening weekend, it was entirely appropriate for the learned trial judge to leave the matter at large at least for the time being.

31 On Monday 31 January 2005 (thirty-fourth day), when the Court convened his Honour said –

“Yes, well the information I have had is the ill juror is having some further tests today and I hope to have a report as to what the prognosis is sometime this afternoon. So there is nothing we can do at this stage. There are three alternatives of course, in this trial. I mean I might as well mention it now so you can start thinking about it. We can proceed with nine if both accused consent in writing. We can wait to see whether the juror who was having the tests will be fit in the next day or so. I suppose until we get a report on him, we don’t know, we can’t make any decisions. Ultimately, alternatively I can discharge the jury. That would be a great pity after all this time, from everyone’s point of view. So I think we just keep an open mind. But, of course, counsel have got to give advice to their clients and if a juror becomes fit, we can proceed, if he doesn’t, we then we are reduced to nine, then that raises problems for both accused and they should be properly advised in relation to those matters.”

32 Counsel raised with his Honour the issue of their lack of knowledge of the nature of the juror’s illness. His Honour understood this enquiry to relate to the question whether the juror was able to participate and was fit to do so in the deliberations of the jury. In response, counsel for Lameri (speaking in this respect I think also for Mr McClintock SC) said, “and that may or may not be an issue later”. It seems implicit that his Honour thought that the juror could be able to return to take up his jury duty within a reasonably short time and I interpret counsel‘s response as accepting this likelihood. Counsel did not submit, that, at that stage, the delay in resuming deliberations justified a discharge of the jury.

33 From comments made by his Honour shortly afterwards to the jury and to counsel, it appears that the ill juror required an angiogram which was to occur on that day and that a report from his medical advisers would, the judge hoped, be available that afternoon. The other members of the jury had sent a note to the judge offering to continue their deliberations in the absence of the ill juror. His Honour, however, rightly told them that this was inappropriate and sent the jury away until the following morning. However, his Honour informed the jurors that they could stay in the jury room to read the transcript or look at the exhibits providing they did not discuss “what you make of that”, warning them that although they could refresh their memories or familiarise themselves with the transcript or the exhibits, they should not discuss what the verdicts should be “because all of you have got to be present to reach a verdict and should all be present to hear what other people say about what verdicts should be reached in this case.” There was no objection by counsel to these directions.

34 When the Court resumed on 1 February 2005, his Honour had a medical certificate concerning the ill juror, which was handed to counsel to read. Mr King, Lameri’s counsel submitted that the report did not give any information that would assist in making an informed decision. The report indicated that the juror had had cardiac investigations and was currently stable. Counsel submitted that what was required was a detailed diagnosis together with some indication of the medication he was receiving and what type of medication he might need to use. Counsel speculated that the medication might affect his mind or concentration and, this was something which the accused had a right to know. The medical report indicated that it was expected the juror would be discharged from hospital on the following day, namely 2 February, and that “he should be able to recommence jury duty on Wednesday or Thursday”. The Sheriff’s Incident Report indicated that the juror had been found in the jury room with his feet elevated on a chair and a female juror advised the Sheriff’s Officer that he had collapsed and had regained consciousness approximately two minutes before the officer arrived. It is unnecessary to go further into the symptoms witnessed by the Sheriff’s officers. It is sufficient to say that they were indeed worrying and warranted the juror’s immediate admission to hospital. Mr King submitted –

“But without a proper and thorough medical report as to his condition, your Honour, I really feel unable to make any reasonable or worthwhile submissions to you on whether we should wait another day or another two days to see if this particular juror will in fact be fit to continue.”

35 It will be seen that Mr King (with whose position Mr McClintock allied himself) submitted that more information was necessary about the suitability of the juror to undertake further jury service. Mr McClintock said explicitly that his instructions were that, if the juror was fit to continue, he was not to make an application that the juror be discharged. Kinchington ADCJ decided that he would consider whether further material was necessary although it appears that his Honour thought, at that stage, that the effect of the medical report was that the juror would be fit to resume his duties as indicated and this was sufficient to permit that to occur, providing the juror himself thought that he was fit and able to do so.

36 On 2 February 2005, when Court resumed, the trial judge informed the parties that the Sheriff had communicated with the ill juror, who was optimistic that he would be able to resume his jury duty on the following day, 3 February. The Sheriff also advised his Honour that he had informed the other jurors that it was unnecessary for them to attend on 2 February but that one juror, who did not get the message, had attended. The juror requested that he be allowed to read the transcript of evidence and his Honour asked whether there was any objection to the juror doing this. Counsel indicated that there was no objection. On 3 February 2005 the remaining jurors were all assembled. The trial judge informed the parties that the ill juror was under medication, namely aspirin and a tablet for cholesterol, to which counsel responded that this was not a matter of concern. At 10.10am the jury returned to court and after a few observations by his Honour retired a few minutes later to further consider their verdicts. At 11.55am the jury returned with verdicts of guilty.

37 It will be seen that the jury had effectively deliberated for only a day and a half on 24 and 25 January 2005 and then for only one hour and forty-two minutes on 3 February. In substance, it is submitted on behalf of the appellant that it should be inferred that the jury, contrary to the directions of his Honour, had been deliberating in the absence of the ill juror. Counsel points to the circumstance that the day of the verdict was some twenty-three days after the conclusion of evidence and nine days from the conclusion of the trial judge’s directions. It is submitted that there was inadequate time for the jury to have properly considered the evidence, the submissions of counsel and the directions of the trial judge and, accordingly the verdict should be seen as a miscarriage of justice. In this respect, counsel contends that there was also a level of disaffection among the ten jurors which adversely affected their undertaking of their duty to give the issues in the case appropriate attention.

38 I am unpersuaded by these arguments. Although the trial was a lengthy one, the issues were not, in reality, unduly complex. The documents were not difficult to understand (subject to what I say below as to the financial statements of Lameri Industries) and the evidence was not complicated. On a more general level, I do accept the implicit suggestion that all discussion between jurors must occur when all are together. Of course juries are regularly admonished to do this and it is desirable that they do it but it does not seem to me to be essential that they do it. In R v Locchi (1991) 22 NSWLR 309 the Court considered whether the jury can discuss the case only as a unit. Samuels JA (with whom the other members of the Court agreed said (at 315) –

“…[It] is the experience of all those who have been involved in jury trials, particularly criminal trials where there are juries of twelve, that sometimes a juror is late and the other jurors spend time together in the jury room. Always the jurors of necessity arrive at different times, so that assembling in sequence, in series as it were, in the jury room is routine. It can scarcely be presumed that as they come in they do not talk about the case. So that it is very likely that in almost every trial there is some discussion about the case, not involving the whole of the jury.
Similarly, even if after retiring a jury now, by s 54 of the Jury Act 1979, is permitted, if a judge so orders, to separate; and it might very well be that two jurors might travel home together or three jurors or any number of jurors might stop at a hotel on the way and have a drink together and discuss the case. I do not think that any proposition could be framed which would turn a discussion about the case between less than the full number of jurors into a full miscarriage of justice. But it is unnecessary to express any general principle in this case and I do not attempt to do so…”

39 I might add that there are other circumstances when the jury, though assembled, might separate, for example when the smokers amongst them are taken outside to smoke cigarettes. A juror might go to the toilet when the jury was in the jury room. No doubt other circumstances can be imagined. Furthermore, when jurors leave the courtroom, they do not switch off their brains. Each is undoubtedly entitled to think about the evidence, about the submissions and about what he or she thinks about the issues in the case. What is of vital importance, of course, is that jurors should maintain open minds during the whole of the time that each is considering the evidence and whilst they are deliberating together, until they have heard all of the evidence and all of the submissions and what their fellow jurors think about the case. It is not improper to develop tentative and preliminary opinions about the credibility of witnesses or the significance of their evidence or even about the outcome of the case. Indeed, doing so is inevitable. However, making decisions about these matters needs, of course, to await the deliberations of all jurors.

40 Accordingly, I would reject these grounds of appeal.

The prosecutor’s address

The appellant also relies on the following grounds of appeal –

(a) The trial judge erred in law in not discharging the jury at the conclusion of the Crown’s closing address, whereby the Crown addressed the jury on matters upon which no evidence had been called and upon which the Crown had not opened.
(b) The trial judge erred in not discharging the jury or allowing Counsel for the Applicant to displace the view either by directing the Crown to withdraw his remarks or informing the jury that the Crown’s address was wrong.
(c) The trial judge erred in failing to give a direction to the jury that the Crown neither notified the defence nor did they provide any evidence that they would be alleging that the “accounts” were false.”

These grounds arise out of the use by the Crown prosecutor of profit and loss statements for Lameri Industries Pty Limited in his final address, giving an analysis to the jury which was not the subject of any evidence but which, it was contended, demonstrated the falsity of those accounts.

41 When he opened the case to the jury, the Crown prosecutor referred to a number of documents, including the finance applications and, in particular, the allegedly fraudulent invoices. He told the jury that it was proposed to tender the full financial accounts from 1998/1999 in relation to Lameri Industries Pty Limited. He did not suggest, either expressly or by implication, that they were false or unreliable in any respect. After generally dealing with the way in which the various finance applications were made and the documentation used to support them, and how the cheques were dealt with, the prosecutor said –

“The Crown case in respect of the four counts on the indictment is that both accused were involved in a joint criminal enterprise to obtain cheques by deception by producing false invoices, false equipment pertaining to that number. In relation to count 5, 6 and 7, you will probably notice that some of the amounts of money appear familiar. You do that because the Crown case is that both of the accused were involved in a joint criminal enterprise to get the use of that money by depositing into the account of Ross Lameri or Lameri Industries – that is exactly what happened in respect to counts 4, 5 and 6. The money actually hit the account. In respect to count 7…this is related to count 4, the cheque was stopped by the finance company. So, as I said before, the Crown case is that both accused were involved in a joint criminal enterprise and the whole of that. They received that money, that is what is says in the indictment: money laundering in that he received property to the value of $203,000 knowing it was the proceeds of a serious crime.”

42 After dealing with other matters (not the profit and loss accounts) the prosecutor added –

“So the Crown says that these last three counts are made out by the facts: relying on what Mr Meyer says; [and] relying on the documentary evidence from the bank and from the finance company that these moneys went into the account and were received by Mr Lameri and Mr Cohen.”

43 The profit and loss statements for Lameri Industries Pty Limited for the financial years ended 1998 and 1999 were tendered as part of Exhibit B through a Mr Moore, who was a senior investigations officer with the Commonwealth Bank. Exhibit B comprised a facsimile of eight pages which was sent to the State Bank of New South Wales on 20 December 1999 by Mr Meyer. The coversheet said –

“…Please find attached the 1999 accounts for Lameri Industries with 1998 comparisons, 1998 accounts for Lameri Industries with 1997 comparisons, amended contract stating terms to be at least five years initialled by both parties. Could you please assess this transaction for us now on the basis that Lameri Industries gives its corporate guarantee that the amount financed is now $200,000. Please let me know if you need anything further.”

44 There was no objection to these documents as a business record. The profit and loss statements then were ignored for the rest of the trial until the Crown prosecutor’s address.

45 The Crown prosecutor in this Court conceded that the prosecutor opened below on the basis that the invoices were false and did not mention at that time about any financial statements being false. The Crown prosecutor also accepted in this Court that, when the prosecutor in his closing address put to the jury that the financial statements were false, this was unexpected by the defence. The submissions of the Crown prosecutor to the jury dealing with these documents occurred in the context of dealing with Exhibit B, part of which was analysed by the prosecutor in his address. The relevant passage is as follows –

“In respect to what is contained in the next page, these are also very important. As I said this case is based on false documents. First I show you the 1999 trading profit and loss statement for Lameri Industries Pty Ltd, 23 Blaxland Road, Campbelltown. It has an ACN number. So this is trading profit and loss document. It contains various figures for 1999 for the year ended 30 June 1999. With respect to these figures you will notice that expenditure accountancy fees $7,500. That is important because what document I will show you very shortly in relation to Mr Cohen producing a document on this computer in his office found by Mr Batty the following year. So it has consultancy fees and directors fees, $130,000. Have a look at all these figures. They do, when I show you the next trading and profit and loss statement, or referring back to the 1998 one because of course part of this document, because it ends on 30 June 1999, must have started on 1 July 1998. So the previous one to that which is also part of Exhibit B you will see that relates to 30 June 1998, bearing in mind as I said before the company wasn’t even incorporated or formed until 20 February 1998. So where it says trading profit and loss statement for the year ended 30 June 1998, that relates back to the period 1 July 1997 to 30 June 1998.
If you have a look at that document in conjunction with the later one for 1999 you will see that the figures for 99 shown in the later one, the earlier one of course for the previous year 1997 to 1998, how could these figures be genuine if the company had only been in existence for a short time?
Because the company, as I said, was formed on 20 February 1998. So the time the tax year ended on this document, there is only March, April, May, June, four months. Have a look at the figures, how close they are for the following year 1999, to show this document on the face of it cannot be genuine. If you have a look at the group certificate. Have a look at the next year’s trading profit and loss statement for 1999. Have a look at this one, the year ended 30 June 1998.
Also included in this document is the balance sheet for the period as at 30 June 1998 and there is another page which appears to be the second page of the trading profit and loss statement for the year ended 30 June 1998. They appeared, these documents, to be out of order. Even though recommended in this trial they have not been reclipped or anything. These documents represented in this form to the bank apparently and we can see that by the fax number at the bottom on the document. So there is nothing sinister about the fact, what appears to be the balance sheet is the second document produced and then the third document produced is the second page of the trading profit and loss statement for 30 June 1999.
In respect to that trading profit loss statement for 1998, you will also see accountancy fees $6,750. Previous year $5,250. As I said, all these other expenses for 1997 and 1998, very high cost director’s fees $100,000 for a period of over 4 months. That is it. We know when the company was formed. We know it was formed on 20 February 1998. Has all these other details in which you can have a look at. Also includes contract agreement, similar to the previous one in exhibit A between Lameri Industries Pty Ltd and Dean Richardson, Director, once again not having been formed at that time. Principle place of business the, same 24 Blaxland Road, Campbelltown. Additional material put in there is relation the period of 5 years. Initialled at the bottom right hand corner of the page by apparently two initials, also initialled where the additional information inserted in point three and ticked.
It also includes a signature above Lameri Industries and the signature above is Dean Jason Richardson on the right-hand side of that last page. So that’s all I can show you in relation to Exhibit B.

46 There are two significant errors in this submission. The first concerns what the prosecutor calls “consultancy fees and directors’ fees, $130,000”. The only amount of $130,000 in the profit and loss statements for 1998 and 1999 is in respect of depreciation and not consultancy fees and directors’ fees. The prosecutor pointed out that this sum of $130,000 was unchanged for 1997, 1998 and 1999 and asked, “How could these figures be genuine if the company had only been in existence for a short time because the company, as I said, was formed on 20 February 1998”. The prosecutor then goes on to assert that the figures “cannot be genuine”. Exhibit L, however, contains another copy of the same profit and loss statements together with the notes to the accounts. Those notes state the following –

“It is also to be noted that the 1997 figures relate to the figure for Lamerifurn P/L, the former name of Lameri P/L.”

47 It is therefore evident that the accounts are, or are asserted to be, consolidated accounts. There was no evidence that the note was incorrect or that providing a profit and loss statement in this form did not comply with normal accounting reporting practices.

48 In my view, it was completely inappropriate for the prosecutor to assume the mantle of an expert witness and interpret these accounts for the jury, a matter in respect of which he was plainly not qualified but, because of his position as prosecutor and the apparent authority with which he made the submission gave it spurious authority. Even if the prosecutor’s submission were, as it happened, correct, it was improper for him to make it in the absence of any evidentiary support. Moreover, it was made at a time when it was extremely difficult, if not impossible, for the defence to deal with it. Mr McClintock SC made application that the jury should be discharged, submitting –

“McClintock: Your Honour, the Crown’s address has suggested that the accounts of Lameri are not genuine. The Crown’s led no evidence of that. The Crown has no expertise in accounting. The Crown did not open on that. The Crown has never sought to elicit from anyone that that’s the case, and the Crown seeks peripherally to suggest that Mr Cohen was the accountant at the relevant times.
Lameri Industries was incorporated on 20/2/98. The Crown’s opening suggested that the misrepresentation was the invoices and the invoices only. Had we known that the Crown would be suggesting that there was something wrong with the accounts, we would have led evidence to establish that the accounts are normal accounting practice, that the material in the Crown case itself supports that, that there were notes and explanatory memoranda which the Crown has not produced but which were cross-examined upon which no doubt give explanations of the accounts.
The notations of Mr Meyer himself establish the proposition that the accounts incorporate other accounts. It is extraordinary that a Crown would address a jury without adducing any evidence on the basis that he has some expertise in accounting, which he clearly does not.
The material in the crown brief shows that the accounts are a consolidation. How are we supposed to deal with this?
He sowed the seeds of doubt in respect to something that he led no evidence in relation to, and which on his own case is explained.”

49 His Honour then looked at the accounts including Exhibit L, pointing out that “on the face of it” the accounts relate to Lameri Industries Pty Limited and not to any other company. His Honour was apparently of the opinion that the submission of the Crown prosecutor was correct although he seems to have accepted that although the note (which I have referred to above) “doesn’t support anything about the consolidation, but it does exist and explain the 1997 figures”. His Honour rejected the notion that the accounts were consolidated but suggested that the Crown might have to return to the matter having regard to the note. There was a lot of discussion which focused on the assertion in the note that Mr Lameri was a sole trader. But the note plainly states that he did so using a company and that company became, by one process or another, Lameri Industries Pty Ltd. The prosecutor’s attempt to justify the submission to the jury was entirely misguided. The submission rested upon unexplored assumptions about the relevant corporate and business history. It also seems to me that it was wrong.

50 Furthermore, it is obvious that, having regard to the purpose for which profit and loss accounts are prepared, where what is wanted is a financial history of the business and for this purpose to compare like with like, providing a note makes it clear how the figures are arrived at. The mere fact that one of the entities is not a company is immaterial: it is not unreasonable to consolidate the figures. But whether it was reasonable or not, to submit that to do so was dishonest or fraudulent was completely without evidentiary foundation. The assumptions underlying the prosecutor’s opinions (which were implicitly exposed in argument) had no evidentiary basis and it was quite unfair that the defence should have been required to attempt to explain these apparent discrepancies based upon a note, the import of which was clear enough but which was susceptible of argument. The Crown prosecutor submitted to his Honour-

“…Mr McClintock could have raised the fact they were not complete [in that the note was not present] at any point if he wanted to. How would I know they were not complete? All I have is what the bank has. I said ‘on the face of it it appears’ that is what I said. If Mr McClintock wanted to clarify that by saying ‘No go to exhibit L this says this’ he can do that.”

51 This submission was without merit. Firstly, it was incumbent upon the Crown prosecutor to be aware of and understand the document which he proposed to tender, which included exhibit L. Furthermore, the prosecutor did not put to the jury that, “on the face of it the documents were false” in the sense that this was a tentative conclusion. In the form of a rhetorical question, he emphatically submitted that the document was not a genuine one. The argument that counsel for the defence could have objected to the document is a red herring. Counsel did not object to the document, firstly because it was a business record and plainly admissible and, secondly, because there was no reason to suppose that any point might be made that the document was in any respect false or misleading. This attitude was entirely justified by the way in which the prosecutor conducted the trial. This was either an ambush or an opportunistic attempt to take advantage of what was only later realized might provide some support for the Crown case.

52 Mr McClintock SC submitted that he would have conducted his case differently had he been aware that the Crown proposed to attack the accounts. I do not propose to set out here his submissions on this point. It is enough to say that this was an almost self-evident proposition. After extensive debate, his Honour, as I read the transcript, ruled that it was not appropriate to discharge the jury because “I am not satisfied there is any substance in what you have told me” that would justify a discharge. It is not altogether clear, but my understanding of the approach of his Honour was that Mr McClintock’s argument was without merit and that the Crown prosecutor was entitled to make the submission of which he complained. If I am correct about the import of his Honour’s statement, I respectfully consider that his Honour was wrong.

53 Mr McClintock then asked that his Honour should, when summing up, direct the jury that the issue was never raised, that there was no evidence that the loss statements were false and that they should ignore totally the Crown’s address in that respect. His Honour indicated that he would consider whether to give such a direction when Mr McClintock had reduced it to writing and provided it to him when it came to his summing up.

54 Despite the judge’s suggestion that it might be appropriate for the Crown prosector to return to the matter in controversy and bring to the jury’s attention the note to the accounts forming part of exhibit L, the prosecutor did not do so. The prosecutor briefly described the nature of the documents in exhibit L and brought the jury’s attention to the note but in a way that did not point out the significance or potential significance of the note for the purpose of assessing the genuineness of the profit and loss statements. As I have mentioned, the documents in exhibit L were (omitting the notes to the accounts) identical to those in exhibit B. The prosecutor did not repeat his submission concerning the lack of genuineness of those accounts, although they were identical. Either the prosecutor was indeed making a submission that the profit loss accounts were false or he was not. It seems to me that the failure to assist the jury in relation to this matter when it came to the identical document contained in exhibit L was not fair either to the accused or for that matter to the jury. In all events, the prosector did not qualify in any way his submission about the genuineness of the accounts and did not deal with the note in a way that may have permitted the jury to have fairly assessed the significance that should be given to the point he had (in my view wrongly) made.

55 What was called for was an immediate concession of error and an immediate withdrawal of the submission. I note that in this Court it was not submitted on behalf of the Crown that the submission in question was correct or could be justified having regard to the evidence.

56 This matter was dealt with by Mr McClintock SC in his address to the jury. Amongst other things he pointed out that there was no evidence suggesting that the accounts were in any way misleading or deceptive. He pointed out the note in exhibit L and submitted that there was no possible deception having regard to the clear statement of dates in the accounts pointing out also that there was no evidence as to how accounts should incorporate comparative figures.

57 Mr McClintock SC provided Kinchington ADCJ with written submissions as to his Honour’s directions, seeking directions in the following form –

“The Crown in his address on Tuesday asserted that the accounts of Lameri Industries incorporated figures which pre-dated the incorporation date of that company.

His address was clearly directed at suggesting that the accounts were false and/or significantly misleading.

I direct you to ignore that part of the Crown’s address as there was no evidence adduced in this trial upon which he could possibly have based such an assertion.

It has never been asserted in any evidence or examination by the Crown prosecutor that those accounts were false. There is no evidence before you of what explanations and/or qualifications existed when those accounts were prepared. Furthermore, you do not know what accounting conventions applied to such accounts at the time of their production. Nor is there any evidence before you as to who prepared the accounts in question.

In the circumstances it was improper for the Crown prosecutor to address you in the manner and terms which he did. There is no evidence upon which you could draw any inference that there was anything improper or inaccurate about that account.

The constructions to the interpretations placed upon the accounts by the Crown prosecutor are not evidence and should be ignored.’

58 His Honour ruled as follows –

“… To my mind, the Crown was entitled to make that submission, for what it was worth, because this case revolves around issues of false documents and principally about a false invoice being used in respect of each charge to dishonestly obtain money by deception. As the Court of Criminal Appeal said in the interlocutory judgment it handed down, the Crown case could be described as alleging that these were sham transactions”.

With respect, that the Crown case was that the transactions were a sham is a complete non sequitur . The Crown case was never that the financial accounts of Lameri Industries were a sham. It was never the Crown case that the accounts were presented to deceive the financiers. The Crown submission was a significant alteration in its case. It was made without notice. The defence had no reason to think that the Crown case as to these documents would involve the allegation that they were fraudulent. In my view, it was grossly unfair. The learned trial judge’s reasons did not deal with the other crucial argument of the defence, namely that the Crown’s submission had no evidentiary basis. The interpretation of accounts is not a matter for uninformed determination but for expert evidence. The suggestion that the accounts were false, given spurious propriety because it was made by the Crown prosecutor, added a deeper taint to the other allegedly tainted documents. The accounts were prepared by the appellant and demonstrated, if false, that he was a fraud. The submission was highly prejudicial.

59 His Honour did not refer to the matter in his summing up except to remind the jury of Mr McClintock’s submission that “there is nothing to show these accounts were not ridgedidge”. The learned trial judge directed the jury –

“With respect to Phillip Barry Cohen, the Crown, so far as counts two and three are concerned, relies upon Adam Meyer’s evidence of speaking to Cohen about Lameri Industries requiring further finance, that Cohen was the person who represented himself as the accountant for Lameri Industries, that the accused Cohen provided the trading profit and loss statements and balance sheet for Lameri Industries for 1998 and 1999, and that these were forwarded to the bank and Capital Finance as part of the applications for finance.”

60 Although his Honour did not remind the jury of the Crown’s submission concerning the accounts, this brought to the forefront the Crown’s submissions about their significance.

61 The Crown submitted in this Court that no miscarriage of justice occurred and the Court should apply the proviso to s 6(3) of the Criminal Appeal Act 1912. It was submitted that the learned trial judge’s warning that counsel’s addresses were not evidence would have sufficed to deal with the problematical submission. I would reject this submission. The distinction between submission and opinion evidence is not self- evident and this direction would scarcely have been understood by the jury to refer to the dubious submission.

62 The case against the accused rested, as I have already mentioned, upon the credibility and reliability of the main Crown witness, Mr Meyer. Otherwise, the case was circumstantial and, it was conceded by the Crown, could not justify conviction. The demonstration of a false document for which the accused was himself directly responsible was potentially devastating. It is clear from what I have already said that I am of the view that the submission in this respect should not have been made by the Crown prosecutor. If it was proposed to rely on this matter, clear notice should have been given to the defence to enable an adequate response. Leaving the matter simply to counsel’s address is a completely inadequate answer to the problem raised by the improper submission. Just as the Crown prosecutor is not a witness, neither is defence counsel. Indeed, Mr McClintock SC quite properly did not attempt to give opinion evidence in his address and confined himself – rightly in my view – to pointing out that the Crown’s submission had no evidentiary basis. In the very nature of criminal advocacy, it is clear this process would not have been sufficient to undo the damage. The point is that the issue itself should not have been raised for determination by the jury and it is impossible to be confident that the jury would have rejected the submission because of its lack of sufficient evidentiary basis.

63 It follows that the appellant has made good this ground of appeal and that the proviso ought not be applied.

Grounds of Appeal 2(d) and (e)

64 These grounds in substance allege that the summing up demonstrated the bias in favour of the Crown case that was unfair to the defence and that his Honour’s conduct of the trial would have led to the apprehension of bias. I do not propose to analyse each of the events identified in the written submissions, it is contended, justify the ground of appeal. It is sufficient, I think proper to state that I do not accept that there was anything in his Honour’s conduct of the trial or summing up that night have caused any reasonable person to apprehend bias against the accused.

Ground of Appeal 2(f): The trial judge erred in allowing the evidence of Derrick Ward, Yolanda Alegado and Edna Moraleda.

65 The conclusion of the evidence of what was then the last Crown witness (a police officer) the Crown prosecutor indicated that he proposed to call in support of the Crown case three witnesses who, at the relevant time in 2000, were employees of the Colonial State Bank. Mr Ward was a credit analyst whose duties included assessing credit applications from various businesses throughout Australia. He prepared an approval advice for one of the loans which was the subject of the charges. It is clear that he refreshed his memory from the documents shown to him most, if not all, of which were already exhibited in the trial. In substance, the evidence of the witness was that he relied on the information supplied to the bank for the purpose of his recommendations. Ms Moraleda was at the relevant time also employed with the Colonial State Bank, working in the asset-based finance department. Her duties including checking legal documents, invoices and insurances associated with settlements of leases, hire purchases and vendor finance. She also was involved in the processing within the bank of the applications forming part of the charges. She identified a number of documents, all of which were already in evidence and explained part of their content in ways which were unsurprising. Ms Alegado was, again, an employee of the Colonial State Bank also working in the asset-based finance department and involved in processing one of the relevant applications for finance. She also gave evidence concerning the content of documents already exhibited and explained what happened as far as she was concerned in dealing with them. Her evidence was also unsurprising.

66 Mr McClintock SC did not submit that the defence was prejudiced in any particular way by the calling of these witnesses. Nor did he submit that the defence could not deal with their evidence or was surprised by it except in the sense that until the Crown prosecutor stated that he intended to call the witnesses it could not be known that they would be called. The calling of the witnesses was objected to as an attempt to “patch up” the Crown case following a submission by Mr McClintock of what was submitted was a defect in the Crown case, in substance, as I understand it that the Crown had not established any actual deception. It is unnecessary to consider whether that contention had merit although I must confess that I doubt that it did.

67 It was submitted that the Crown ought not to be permitted to change its case by calling evidence of persons who actually relied on the documents provided with the connivance (as the Crown maintained) of the appellant. Kinchington ADCJ rejected the defence contention and permitted the Crown to call the additional evidence. His Honour was of the view that this evidence did not significantly change the prosecution case, at all events in any way which was unfair to the accused. In my respectful view this conclusion was correct. This ground of appeal has no merit.

Ground 2(g): The trial judge erred in allowing the evidence of Neville Halil and Raj Datt to be adduced by the Crown.

68 These witnesses were also late witnesses in the sense that the intention to call them was communicated to the defence shortly before they were actually called on 24 December 2004. Mr Halil was employed with Capital Finance. His duties primarily involved canvassing new business, writing up finance applications and making recommendations to the credit committee. He gave evidence as to the content and use of various documents that had been exhibited in the trial and associated with the applications. Mr Datt was employed by the Colonial State Bank. He worked in the asset-based finance department as business relationship manager. His duties included dealing with the relevant applications for finance. He briefly described his role and the way in which the applications were processed.

69 Objection was taken to the calling of these witnesses upon the same basis as the other later called witnesses. The grounds of the objection were the same, namely that this was an attempt by the Crown to patch up its case and amounted to a significant change in its case. Again the learned trial judge rejected these contentions. I respectfully agree with his Honour’s conclusion. I would reject this ground of appeal.

Ground 5: The trial judge erred by failing to properly instruct the jury as to an accountant’s duty to his client and that, before the applicant can be convicted, it must be proved that he did things over and above what his duty as an accountant required of him.

70 It was part of the defence that the appellant had done nothing more for his client, Mr Lameri, than any professional accountant would do in their everyday work, merely supplying information to others as requested by their clients. Reliance is placed by the appellant upon R v Tighe and Meagher (1926) 26 SR (NSW) 94 at 108-109. It is not necessary to set out the passage relied on. The essential point made by Street CJ (with whom the other members of the Court agreed) was that a professional person (in the instant case, a solicitor as it happened) charged with acting in combination with a client who is using that professional person in a way which is consistent with that person’s lawful duty, is not guilty of being an accomplice in the crime unless he or she did something more than his or her duty required.

71 It is true that in some cases this distinction may not be apparent. But in this case, the Crown case was that the appellant was a knowing participant in the deceptive and fraudulent activities of the client, Mr Lameri. It was, of course argued by the appellants that he did no more than was ordinarily required of an accountant. However, the learned trial judge made it clear to the jury that they must be satisfied that each of the accused persons acted dishonestly. This was expressed in various ways but perhaps the following is a sufficient example –

“The Crown says that, from all those circumstances, you will be satisfied…that both the accused Mr Cohen and the accused Mr Lameri were fully aware that applications were to be made to financial institutions…that false invoices were to be used nor to obtain those cheques, that the cheques were obtained by Mr Meyer on behalf of the two accused and they were obtained dishonestly…

72 In my view there was nothing in Tighe that required the learned trial judge to direct the jury that they should acquit the appellant if there was a reasonable possibility that he was merely acting as an accountant. The Crown put at the forefront of its case the allegation that the appellant had acted dishonestly, that is he knowingly participated in a scheme the essence of which was deception of the financiers. It is perfectly obvious that an accountant is not acting as such if he or she acts dishonestly in this way. No application for a Tighe direction was made by Mr McClintock SC on the appellant’s behalf, in my view correctly. Leave is required to advance this advance this ground of appeal. It should be refused.

Conclusion

73 The appellant has succeeded in respect of part of Ground 2 as indicated above. I would propose, accordingly, that the appeal be allowed and there be an order for a new trial.

74 HISLOP J: I agree with Adams J.

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