COHEN v REGINA [2006] NSWCCA 247

New South Wales Court of Criminal Appeal

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

Regina

PARTIES: 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

IN THE COURT OF CRIMINAL APPEAL 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.