LAMERI v R [2007] NSWCCA 111

New South Wales Court of Criminal Appeal

CITATION: LAMERI v R [2007] NSWCCA 111

HEARING DATE(S): 10 April 2007 JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 11; Hall J at 12

EX TEMPORE JUDGMENT DATE: 10 April 2007

DECISION: Conviction quashed and a new trial ordered

CASES CITED: Cohen v Regina (2006) NSWCCA 247

PARTIES: Ross Allan Lameri (Appl) The Crown

FILE NUMBER(S): CCA 2007/42

COUNSEL: A Francis (Appl) L M B Lamprati SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0069

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

LOWER COURT DATE OF DECISION: 28 October 2005

IN THE COURT OF CRIMINAL APPEAL 2007/42

McCLELLAN CJ at CL HOWIE J HALL J

TUESDAY 10 APRIL 2007 LAMERI, Ross Allan v R Judgment 1 McCLELLAN CJ at CL: The appellant was tried jointly with Phillip Barry Cohen in relation to a number of counts of obtaining a valuable thing by deception and three counts of money laundering. Both the appellant and Mr Cohen were found guilty on all counts and were sentenced together. 2 Mr Cohen appealed his conviction to this Court. That appeal was allowed and on 15 August 2006 a new trial was ordered. The reasons of this Court are to be found in Cohen v Regina (2006) NSW CCA 247. 3 The successful ground of appeal related to a matter that had been raised for the first time by the Crown Prosecutor in his final address to the jury. In his opening address the prosecutor indicated that he proposed to tender financial accounts, being the full financial accounts of Lameri Industries. However, in his opening address the prosecutor did not suggest that those financial accounts were false or unreliable. 4 The Crown also opened on the basis that certain invoices were fraudulent. Evidence tendered by the Crown was directed to the falsity of the invoices, but the financial accounts which were tendered were not further discussed in the evidence. Notwithstanding this opening, in his final address the Crown Prosecutor referred to the financial statements as being false and analysed their contents with the jury. 5 The conclusion which the Court of Criminal Appeal reached was that, in effect, the prosecutor had presented his own analysis of the statements, effectively giving evidence in the matter. This Court formed the view that that conduct was not appropriate and the trial had miscarried. 6 The same ground is pressed by the appellant in the present proceedings. 7 In response to the appellant's submission, the Crown accepts that the error which was found to affect Mr Cohen's trial, should also be found in the trial of the appellant with the consequence that his conviction must be quashed and a new trial ordered. 8 The court has raised with both the appellant's counsel and the prosecutor in the appeal whether or not this Court might, nevertheless, apply the proviso. The appellant, unsurprisingly, submits that it would not be appropriate. However, of greater significance is the fact that the Crown accepts that this is not a case where the court should take that course. 9 In these circumstances, I am satisfied that it is appropriate for this Court to accept the Crown's concession that the conviction of Mr Lameri should be quashed and a new trial ordered. 10 I would propose that this Court make those orders. 11 HOWIE J: I agree. 12 HALL J: I agree. 13 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I propose. **********