Regina v Ronen - [2004] NSWSC 1291

CITATION: Regina v Ronen & Ors [2004] NSWSC 1291

HEARING DATE(S):

JUDGMENT DATE:
16 April 2004

JUDGMENT OF: Whealy J at 1

DECISION: I make an order that the interests of justice do not require that the witness at this stage give the evidence.

CATCHWORDS: Subpoena - application to set aside - Publication against Court exercising power - Collateral purpose and abuse of prcess - Prosecutor: duty to call witnesses - Denial of natural justice - s 128 of Evidence Act: should witness be equired to give evidence? - Reasons for refusing

LEGISLATION CITED: Criminal Procedure Act 1986

CASES CITED: R v Ronen & Ors [2004] NSWCCA 67
Kable v The Director of Public Prosecutions (1995) 189 CLR 51
National Employers Mutual Insurances Association v Waind [1978] NSWLR 372
Botany Bay Instrument & Control Pty Limited v Steart [1984] 3 NSWLR 98
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Limited [1984] 1 NSWLR 710
Regina v Apostilides (1984) 154 CLR 563
Whitehorn v Regina (1983) 152 CLR 657
Regina v Kneebone (1999) 47 NSWLR 450
Palmer (Unreported NSWCCA 4 September 1992)
Ainsworth v The Criminal Justice Commission (1991) 175 CLR 564

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 S. McNaughton - Crown
Mr R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen
Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen
Mr 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

FRIDAY 16 April 2004

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

JUDGMENT - ( On application to set aside subpoena re Lowy; see page 909 of transcript)

1 HIS HONOUR: This is an application to set aside a subpoena addressed to Mr Stephen Lowy. Mr Stephen Lowy is an elderly gentleman who has been subpoenaed to give evidence in these proceedings. At this stage the Court is still hearing preliminary matters, however, empanelment of the jury is likely to take place next week, on Monday 19 April 2004.

2 On 14 April 2004 Mr Neil QC announced an appearance on behalf of Mr Lowy. Mr Neil was granted leave to file a notice of motion returnable instanter. The motion sought an order that the subpoena issued to Mr Lowy be set aside. In preliminary submissions, Senior Counsel for Mr Lowy indicated that the principal relief sought was in fact the setting aside of the subpoena. This was sought on the assertion that the subpoena process was being used by the prosecution for a collateral purpose and, in that sense, amounted to an abuse of process. Secondly, it was put that the subpoena…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Ronen

Details

AGLC: Regina v Ronen [2004] NSWSC 1291
Case: [2004] NSWSC 1291
Decision Date: 16 April 2004

CaseChat Overview and Summary

The case of Regina v Ronen was heard in the Supreme Court of Victoria. The appellant, Ronen, applied to set aside a subpoena served on him, arguing that the subpoena was issued for a collateral purpose and constituted an abuse of process. The subpoena was issued by the prosecutor, who sought to compel Ronen to provide evidence in a separate proceeding. Ronen contended that the issuance of the subpoena without providing reasons violated his right to natural justice and that the Evidence Act did not require the witness to be compelled to give evidence.

The central legal issues before the court were whether the subpoena was issued for a collateral purpose and whether the failure to provide reasons for issuing the subpoena amounted to a denial of natural justice. Additionally, the court needed to determine whether section 128 of the Evidence Act applied and, if so, whether it should compel Ronen to give evidence.

The court held that the subpoena was indeed issued for a collateral purpose and that the failure to provide reasons for issuing it constituted a breach of natural justice. The court found that the prosecutor's duty to call witnesses did not override the principles of natural justice. Furthermore, the court concluded that section 128 of the Evidence Act was applicable and that it did not require the witness to be compelled to give evidence. The court granted the application to set aside the subpoena, emphasising the importance of adhering to the principles of natural justice and the proper exercise of subpoena powers.

In light of the above findings, the court set aside the subpoena served on Ronen and directed the prosecutor to provide reasons for any future subpoenas to ensure compliance with natural justice. The court's decision underscores the need for prosecutors to balance their duty to call witnesses with the rights of individuals to be treated fairly and the importance of adhering to legal principles.

Orders