Regina v Ronen

[2004] NSWSC 1297

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1297
HEARING DATE(S):
JUDGMENT DATE:	20 September 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	I do not intend to discharge the jury and I refuse the application
CATCHWORDS:	Evidence - admissibility s 87(1)(b) Evidence Act - - Representations by accountant for the accused - no prejudice - s 137 Evidence Act
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Cross on Evidence 6th Edition at par [33540]
PARTIES :	Regina v Ida Ronen Regina v Nitzan Ronen Regina v Izhar Ronen
FILE NUMBER(S):	SC 70222/03; 70032/03; 70223/03
COUNSEL:	Mr T. Game SC; Ms McNaughton - Crown Mr R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P Jones - Accused Izhar Ronen
SOLICITORS:	Ms P. Musgrave - Cth DPP Watsons Solicitors - Accused

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

MONDAY 20 September 2004

70222/03 - REGINA v Ida RONEN
70032/03 - REGINA v Nitzan RONEN
70223/04 - REGINA v Izhar RONEN

JUDGMENT - Re: Objections to tender of statement of Ian Geller of 10 April 2001

1 HIS HONOUR: On 6 September 2004, counsel for the defendants raised objections to the tender of the statement of Mr Ian Geller dated 10 April 2001. On this occasion I ruled that the statement was admissible. These are the reasons in support of that ruling. They should be read in conjunction with my further ruling on 7 September 2004.

2 The statement was sought to be tendered inter alia, on the basis that it contained representations which were capable of being taken as admissions by the accused. Broadly speaking, the statements contained representations as to the taxation position of the entities associated with the accused. In particular, they contain representations by Mr Geller as to the returning of income from the retail outlets.

3 Section 87(1)(b) of the Evidence Act 1995 is in the following terms:

“87. (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

…….(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority…”

4 The Dictionary to the Act defines an “admission” as:

“ admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding.”

5 Mr Game SC, for the Crown, argued that the representations contained in the statement fell squarely within the operation of s 87(1)(b). It was submitted that it was open to find that Mr Geller had ‘authority otherwise to act’ within the meaning of s 87(1)(b) as the accountant and auditor of the defendants and the entities associated with them. His firm, Krochmalik and Hurwitz, carried out these duties and, at least until 30 June 1998, Mr Geller had a major, if not the major role in these tasks. The representations related to a matter within the scope of that authority, namely, the taxation position of the defendants and the entities associated with them, including the returning of income from the retail stores.

6 The Crown argued that the point of the section was to do away with the requirement of actual or implied authority. The further effect of the section was to get over s 59 of the Act, so that the representations were capable of being the truth of their contents. For this reason, it did not matter whether the representations were made subsequent to the accused being arrested, nor did it matter that they had raised a claim to silence.

7 Mr Richter QC, on behalf of his client Ida Ronen, argued that the representations contained in Mr Geller’s statement were not the kinds of representations upon which s 87 could operate. He pointed to a number of criminal cases which deal with s 87(1)(c) and said that these were concerned with very different situations to that under consideration. Specifically, he was not aware of any authority in which an alleged admission was vicariously put via s 87(1)(a) and (b) after an accused had been arrested, charged and had indicated a desire not to answer any questions. To allow someone else to “confess” on behalf of an accused person, where the accused, for example, had indicated that he would avail himself of the right to silence was beyond the scope of the section.

8 Mr Van De Wiel QC, representing Mr Izhar Ronen, emphasised that the accused were not present when the representations were made. He drew the analogy of Counsel making admissions on behalf of his client in Court, where the client was present. If the client had elected not to say anything, but did not bring this to the attention of Counsel when the representations in Court were made, in the ordinary course of events, these would be deemed to be made with authority. However, he argued, the situation was different where representations were made, in the absence of the client, and the client had indicated that he or she did not wish to answer questions.

9 Section 87, Mr Van De Wiel argued, only operated where a patent or implicit authority existed, and it was within the scope of that authority to make the representations. In this instance, evidence could be given by the tax agents of the accused as evidence of a past practice, but this did not mean that s 87 operated to make the representation an admission by the accused.

10 Section 87 represents a departure from the common law in respect of vicarious admissions. At common law, statements by agents were admissible where made during the continuance of the agency, in the course of communications that the agent was authorised to have with a third party. See Heydon J D, Cross on Evidence 6th Edition at par [33540].

11 The Australian Law Reform Commission No 26, Vol 1, par 366 reported that the requirements relating to vicarious admissions were too strict. In particular, the requirement that statements of agents only be admissible where the agent had ‘speaking authority’ was too strict.

12 Section 87(1)(b) has the effect that where it is reasonably open to find that a person had ‘authority otherwise to act for the party’ and the representation ‘related to a matter within the scope of the person’s employment or authority’, the representation may be taken to be an admission by the party. There is no requirement that the agent have ‘speaking authority’ in relation to the representation made, merely that the representation relates to a matter within the scope of the person’s authority. That is to say, s 87(1)(b) does not require an examination of the context or circumstances in which the representation was made, in order to show that the admission occurred in the course of a conversation or communication that the agent was in fact authorised to have with a third party.

13 To my mind, it is not to the point that in the present case, representations were made to the investigating authorities after the accused had been charged. Whatever the position might have been at common law, there is nothing in s 87(1)(b) that precludes the consequence argued for by the Crown. The illustrations given by Mr Richter QC do not bear on the present circumstances.

14 There is no reason apparent from the language of s 87(1)(d), or in principle, why the section should be limited in the way contended for by Mr Richter QC, at least in the present circumstances. The effect of s 87 is that it takes evidence outside the hearsay rule. That is, it allows previous representations to be used to prove the existence of a fact intended to be asserted by the representation.

15 For the above reasons, I am satisfied that the Crown has proved that the requirements of s 87(1)(b) are met, and that the oral representations contained in the statement of Mr Ian Geller, dated 10th April 2001, are taken to be admissions by the accused.

16 I note that both Mr Geller and Miss Wade, who took the statement, are to be available for cross-examination.

17 Finally, there is no warrant for the exclusion of the representations under s 137 of the Evidence Act as mentioned by my decision of the 6 September 2004.

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Last Modified: 07/16/2007