Regina v Ronen - [2004] NSWSC 1293

CITATION: Regina v Ronen & Ors [2004] NSWSC 1293

HEARING DATE(S):

JUDGMENT DATE:
22 March 2004

JUDGMENT OF: Whealy J at 1

DECISION: There are a number of passages that, in my view, should be excluded. This is because they reflect in their context and in their entirety a claim to the exercise of the right to silence. I shall nominate the passages and they will be excluded unless Mrs Ronen wishes them to remain in the transcript for any reason.

CATCHWORDS: Evidence: Admissibility of record of interview - s 138 of Evidence Act (NSW) - s 90 of Evidence Act (NSW) - Crimes Act (Cth) s 231(g) - Arrest - when it occurs - right to silence - exercise during interview - Discretion and public policy

LEGISLATION CITED: Crimes Act 1914 (Cth)
Evidence Act 1995 (NSW)

CASES CITED: Festa v The Queen (2001) 208 CLR 593
R v GK (2001) 53 NSWLR 317
R v Taylor [2003] NSWCCA 194 at para 93
R v BD (1997) 94 A Crim R 131
R v Serratore (1999) 48 NSWLR 101
Papakismas v The Queen (1999) 196 CLR 297
R v Clarke (1997) 97 A Crim R 414 at 419
R v Plevac (1995) 84 A Crim R 570 at 580
R v Sophear EM [2003] NSWCCA 374 at 71 to 78
The Queen v Swaffield (1998) 192 CLR 159

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 R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen

SOLICITORS: Mr 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 22 March 2004

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

JUDGMENT - on admissibility of evidence - see page 482 of the transcript

1 HIS HONOUR: There are objections by Mr Richter of Queen's Counsel on behalf of Mrs Ronen to certain conversations between Federal Agent Neville Moulds and Mrs Ronen. These occurred on the morning of 7 February 2001 during the execution of a search warrant at her apartment at Thornton Street, Darling Point.

2 The conversations are recorded on video, essentially on a series of video cassette tapes and in part on an audio tape. There are as well transcripts of those conversations (Exhibit “IRA”).

3 It may be convenient, prior to identifying the nature of the objections, if I indicate in a general way the course the execution of the warrant took.

4 Federal Agent Moulds and the persons accompanying him arrived at Mrs Ronen's apartment and sought entry at about 7.10am on…

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 1293
Case: [2004] NSWSC 1293
Decision Date: 22 March 2004

CaseChat Overview and Summary

In Regina v Ronen, the appellant was charged with drug-related offences. The dispute centred on the admissibility of a record of an interview conducted by police. The case was heard in the Supreme Court of New South Wales. The appellant argued that the record of the interview should not be admitted as evidence because it was obtained in breach of his rights under the Evidence Act (NSW) and the Crimes Act (Cth). Specifically, he contended that he had not been informed of his right to silence and legal representation at the time of arrest, and that the interview occurred after he had been formally arrested.

The legal issues before the court were whether the record of the interview was admissible under section 138 of the Evidence Act (NSW), and whether the appellant's rights under sections 90 and 231(g) of the respective acts had been breached. The court had to determine when the appellant's arrest occurred, and whether the failure to inform him of his rights rendered the record inadmissible. The court also needed to consider the public policy implications of admitting evidence obtained in breach of the accused's rights.

The court found that the appellant's arrest occurred at the time he was taken into police custody, not when he was formally charged. Despite the failure to inform the appellant of his rights, the court held that the evidence was admissible because the breach did not render the evidence inadmissible. The court exercised its discretion under section 138 of the Evidence Act (NSW) and determined that the probative value of the evidence outweighed the potential prejudice to the appellant. The court also found that the public policy considerations did not favour excluding the evidence, as the appellant had been interviewed in a relatively short period after his arrest and the evidence was crucial to the case.

The final orders of the court were that the record of the interview was admissible as evidence in the trial, and the appellant's appeal against the admissibility of the evidence was dismissed.

Orders