Regina v Ronen

[2004] NSWSC 1284

Reported Decision: 211 FLR 268

Supreme Court

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1284
HEARING DATE(S):
JUDGMENT DATE:	15 March 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	In my view, it is in the interests of justice that the witness give the evidence for the reasons I have stated in this decision.
CATCHWORDS:	Evidence Act (NSW) s 128(5) - witness required to give evidence - privilege in respect of self-incrimination - tax agents and disciplinary proceedings - Income Tax Regulations 1936 (Reg 168)
LEGISLATION CITED:	Financial Transactions Reports Act 1992 Proceeds of Crime Act 1987 (Cth) Evidence Act 1995 ITA Act 1936 Income Tax Regulations 1936 Commonwealth Evidence Act (Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth)
CASES CITED:	R v Collison (2003) NSWCCA 212 Police Service Board v Morris 156 CLR 397 at 404; 408 and 411 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 286 Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A CrimR 77 Re; Maraj (a Legal Practitioner) (1995) 15 WAR 12 Commissioner of Taxation v De Vonk (1995) 61 FCR 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 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 15 March 2004

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

JUDGMENT - Application on behalf of Mr Agoston

HIS HONOUR: The need to give this ruling arises in the following circumstances. Mr Agoston is a chartered accountant. The Crown case is that, during the period of telephone surveillance, between April and late December 2000, about $600,000 cash was moved overseas to Israel; and that Mr Agoston had a role in taking money for those purposes from Mrs Ronen and, in one instance, Mr Segal. I shall in due course make further reference in a more detailed fashion to the material relied upon by the Crown. It is sufficient to say, by way of introduction, that the Crown case is that Mr Agoston’s role, during the relevant period, in relation to the sending of the monies overseas, is that he was the organising conduit for the despatch of the money, even though third parties may have been involved.

1 Mr Agoston was represented by Mr S.J. Odgers SC in relation to the present application. On his client’s behalf, Mr Odgers argued that Mr Agoston should not be required to give evidence under s 128(5) of the Evidence Act 1995. The starting point of the argument is Mr Agoston’s objection through his Counsel to giving evidence on the basis that it may tend to incriminate him. Section 128 is in the following terms:-

“128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.

(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence, and
(b) that, if he or she gives the evidence, the court will give a certificate under this section, and
(c) of the effect of such a certificate.
(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled, and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(5) If the court is satisfied that:

(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and
(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and
(c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence.

(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(7) In any proceeding in a NSW court:
(a) evidence given by a person in respect of which a certificate under this section has been given, and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind the existence of which is a fact in issue.
(9) A reference in this section to doing an act includes a reference to failing to act.”

2 As I have said, the starting point is Mr Agoston’s objection to giving evidence on the ground that the evidence sought to be adduced by the Crown may tend to prove that he has committed an offence against or arising under Australian law. The Crown, through Mr Game SC, concedes that there are reasonable grounds to conclude that it is possible that Mr Agoston may have been involved or knowingly concerned in an offence under the Financial Transactions Reports Act 1992, particularly section 15 which makes large cash transactions reportable. The Crown further concedes that he may be liable under section 81 of the Proceeds of Crime Act 1987 (Cth) for “money laundering”.

3 In these circumstances the Crown properly concedes that the witness is entitled to a certificate. As sub-s 7 of s 128 indicates, the effect of the certificate is that, in any proceeding in an Australian Court, evidence given by a person in respect of which a certificate under this section has been given, cannot be used against the person. This protection does not apply however to a criminal proceeding in respect of the falsity of the evidence.

4 The real thrust of Mr Odgers argument focuses on sub-s 5. The point at issue is whether “the interests of justice require” that the witness give the evidence. Mr Odgers argues that the Court would not be so satisfied; and in those circumstances the Court should not require Mr Agoston to give the evidence.

5 Mr Agoston has not at this stage been charged with any offence.

The relevant evidence

6 For the purposes of the application, the Crown tendered Exhibit “A”. This has been described as the “Agoston Folder”. It was admitted without objection.

7 The folder contains first a lengthy statement by one George Segal. It appears that Mr Segal was in a relationship with the accused Ida Ronen during 1996. In late September or early October 1996, Mr Segal moved in with Ida Ronen at her apartment at 5-11 Thornton Street, Darling Point. He travelled overseas on a number of occasions with Mrs Ronen. The intimate relationship between the two ceased towards the end of 1997, although Mr Segal remained living with her for a time thereafter as a companion in a platonic relationship. Mr Segal had known Mr Agoston as an acquaintance for about 40 years. Mr Segal’s statement plainly implicates Mr Agoston as being involved in arranging, for commission, the removal of cash money from the Ronen businesses to overseas destinations. On occasions, the statement indicates, Mr Segal took Ida Ronen to the building occupied by Mr Agoston’s office in the city. On these occasions Mrs Ronen took with her a large amount of cash contained in a plastic bag. The cash was arranged in flattened bundles of $100 notes. There was a separate amount of cash that represented the commission to be paid to Agoston. Mr Segal had a number of telephone conversations with Mr Agoston in relation to the relevant topic and on one occasion took cash from the On Fovo store to Agoston’s office in the city where the money was counted and where he had a further conversation with Mr Agoston. Mr Segal moved out of the Thornton Street apartment in March 2001.

8 The next document in the folder is the NCA examination of Mr Agoston. The first relevance of this material is that on a number of occasions Mr Agoston declined to answer a number of questions asked of him during the examination. More importantly, however he did give evidence, for example at page 42 and 59. This material appears to demonstrate that, in relation to his statements about his connection with Ida Ronen and Mr Segal, he was not telling the truth during the interview. At page 45 he also said that “he never had any business dealings” with Dolina Fashion Group Pty Limited and had “never heard” of Dolina Enterprises. Similarly with Ronen Young Fashions (see also answers to questions on pages 51, 52, 53, and 54).

9 The third document in the folder is a statement by Federal Agent Lisa Maree Turner. Her statement indicates that about 11.15am on 7 February 2001 she attended the offices of Agoston Douglas and Partners at 580 George Street, Sydney. She was the executing officer in relation to a Commonwealth Search Warrant. She interviewed Mr Agoston on that day. She asked him whether he knew the Ronens to which he replied “Only as a casual acquaintance. If I pass them on the street I may not even say hello”. He said he did not have any business dealings with them. He specifically denied having any business dealings with Mrs Ida Ronen whom he said he “hardly knew at all”.

10 The fourth aspect of the folder is the presence of a surveillance video taken on 19 December 2000. Whilst I did not see the video I am told that it shows Mrs Ronen entering and leaving the building at 580 George Street Sydney. Finally, there are a lengthy series of telephone intercepts in support of overt act number 42. I will not here repeat the details of these telephone intercepts. Finally, there was a further telephone conversation between one “Yaffa” in Israel and Mrs Ronen dealing with concerns expressed between the two in relation to the manner in which amounts of money had turned up overseas.

11 The summary position of all this material is that the Crown case asserts that in the period April to December 2000, an amount of something like $600,000 (or a little under it) was sent through Mr Agoston by way of a third party overseas. There is, in addition, evidence from an earlier point of time that suggests that Mr Agoston may have been performing this role prior to the surveillance period in the years between 1996 and 2000. The Crown does not allege however that Mr Agoston was centrally involved in the tax fraud that forms the subject of the charges against the Ronens. Rather his role was that of an accessory in that he was an active participant in the sending of the money overseas. Nevertheless, the Crown submits that he is a material witness and that his evidence is likely to be powerful evidence to suggest the illegality of the purpose involved in the retention and movement of the money. The nature of the arrangement Mr Agoston had with Mrs Ronen, and to a lesser extent with her two sons, is, according to the Crown’s submission, an important aspect of the Crown case. The evidence is also material to meet any defence submission that there was no intent to defraud.

Mr Odgers SC’s submissions

12 First, Mr Odgers argues that the onus is on the Crown to satisfy the Court that the interests of justice require that Mr Agoston give the relevant evidence. The relevant evidence is, may I repeat, evidence of his dealings with Mr Segal and Mrs Ronen in relation to the movement of money overseas in the period 1996 to 2000. I should immediately say that Mr Game SC accepts that the onus is on the Crown in this regard although, as he rightly points out, ultimately it is a matter for the satisfaction of the Court as to whether the interests of justice in fact require the witness to give the relevant evidence.

13 Secondly, Mr Odgers submits that in truth the evidence of Mr Agoston in relation to the question of the details of the movement of the money from Australia to Israel is of marginal or peripheral importance in the trial. Thirdly, senior counsel submitted that the movement of the money and indeed, the method of movement of the money, may be proved aliunde without the need to call Mr Agoston at all.

14 Fourthly, Mr Odgers submitted that there was a significant question mark over the potential reliability of Mr Agoston’s evidence. He referred to the Court of Criminal Appeal’s decision in R v Collison (2003) NSWCCA 212. The considerations in that case, and the fact that Mr Agoston’s evidence would undoubtedly draw the need for a warning under s 165 of Evidence Act, counsel submitted, were plainly relevant to whether the Court would or would not come to a conclusion that the interests of justice required the evidence to be given.

15 Finally, and in one sense most importantly, Mr Odgers stressed that the nature of the privilege against self-incrimination was a matter of fundamental importance. He drew attention to the dictionary definition of “an Australian Court” in the Evidence Act and argued from this that the protection provided by any certificate given by the Court would be unlikely to extend to disciplinary proceedings brought against Mr Agoston, if that were to happen, in connection with his membership of the Chartered Accountants Institute. In evidence before me were the by-laws of the Institute and the terms of the supplemental Royal Charter of the same Institute.

16 There is no need for me to go through the by-laws in fine detail. By-laws 39 to 51 provide for the conduct of disciplinary proceedings involving a member of the Institute. An adverse determination by the disciplinary committee in relation to allegations raised in disciplinary proceedings may result in significant consequences for a member including exclusion from membership, suspension from membership and cancellation fines and reprimands. Moreover, it seems to be the situation that the disciplinary committee would not be bound to apply the laws of evidence. In that regard, the disciplinary body or tribunal would not fall within the definition of “an Australian Court”.

17 Mr Odgers’ submission in relation to the last point was that the witness would be exposed to significant disadvantage in disciplinary proceedings because the certificate given by this Court would not provide any protection to him. Further, Mr Odgers argued that by giving the evidence the witness was placed at a potential forensic disadvantage in the event that he were prosecuted. Mr Odgers also stressed the age of Mr Agoston – he is 77 years of age – and the obvious consequences to him, both in a personal and professional sense, of the potential for public embarrassment and humiliation that would accrue to him if he were required to give evidence of the kind indicated.

18 A further late submission was made by Mr Odgers that runs parallel with the matters I have just mentioned. This arises from the fact that Mr Agoston is a partner in the firm Agoston, Douglas & Partners which is a registered tax agent. Mr Agoston is one of the nominees of that firm with the Tax Agents Board.

19 A Tax Agents Board is required to consider whether or not a nominee of a Tax Agent is a fit and proper person to prepare income tax returns (s 251BC(1-3) of the ITA Act 1936). Where a tax agent is a partnership, as is the present case, the Tax Agents Board is required to consider if each partner is a person of good fame, integrity and character when renewing registration (s 251JC(1((b) of the ITA Act. In addition, s 251K(1) and (2) of the ITA Act provide a number of grounds on which a Tax Agents Board can suspend or cancel the registration of a tax agent. Where the tax agent is a partnership, that power may be exercised where a partner is found not to be of good fame, integrity and character.

20 Regulation 168 of the Income Tax Regulations 1936 governs the manner in which a Tax Agents Board may obtain evidence and information. It appears to be the position that the transcript of Mr Agoston’s evidence given in this Court, notwithstanding the provision of a certificate, would be admissible before the Tax Agents Board. There is also the potential problem that the privilege against self-incrimination may have been abrogated by regulation 168; and in particular by regulation 168(2)(2A) and (2B). Mr Odgers argues that this is an additional matter that should be taken into account in determining the question whether the witness should be required in the interest of justice to give the evidence.

21 Mr Odgers accepted that the Court must, of necessity, apply a discretionary approach to the evaluation of the ultimate question as to whether the interests of justice require the evidence to be given. He said that the Crown has the onus of persuading the Court that the disadvantages to Mr Agoston are outweighed, on balance, by a consideration of the importance of the evidence in the proceedings, its reliability and the necessity to prove the relevant matters through the witness rather than by other means.

22 I should add for completeness that Mr Richter QC on behalf of Mrs Ronen (and with whom counsel for the other accused agreed) supported the arguments put by Mr Odgers. Mr Richter however, repeated in addition his earlier objection to the Crown’s endeavour to ask questions of this witness in a pre-trial hearing. Mr Richter had earlier questioned the proprietary of this kind of questioning in his major submission on the point. This had resulted in my earlier decision of 3 February 2004. That ruling however did not relate to Mr Agoston but to the questioning of two other witnesses. Mr Richter also raised two further matters. The first was that he contemplated a person in the position of Mr Agoston might be required, and indeed compelled, by the accounting body’s disciplinary tribunal to give an explanation in any disciplinary proceedings. He drew attention to by-law 45(d) which arguably was capable of operation so that Mr Agoston could be compelled to testify at any disciplinary proceedings conducted by the Institute against him. Finally, Mr Richter queried whether the Crown had in fact demonstrated that Mr Agoston may not face the risk for example, of proceedings in Israel for laundering of monies or tax matters for which protection under s 128 would not be available. As to this last matter, however, Mr Odgers specifically conceded the matters mentioned in s 128(5)(a) and (b).

Resolution

23 There are two points to be made by way of preliminary observation. The first is that the present issue arises upon the hearing of a voir dire. It needs to be stressed that, even were I to come to the conclusion that the interests of justice require that the evidence be given; and were I to come to the further conclusion that it is, in any event, appropriate for the Crown to adduce evidence from Mr Agoston and for the defence to have the opportunity to cross-examine him, this will only occur at this stage by way of a preliminary hearing. The second point I wish to make is this: without canvassing all the reasons I gave in my decision on 3 February 2004, I remain satisfied that the procedure which the Crown seeks to adopt in this matter does not involve any abuse of process. The situation with this witness, it must be said, is somewhat different from that of Ms Lawler and Mr Geller whose evidence was the subject of the previous ruling. There can be no question however that the Crown is entitled to call Mr Agoston as a witness in its case. The fact that he was not cross-examined at committal, or that he has not provided a statement, merely highlights the fact that it is entirely fair and appropriate that the defence should have the opportunity, in a preliminary hearing, to hear what his evidence will be. The fact that the Crown does not know precisely what that evidence will be does not detract from the force of the first proposition and does not warrant a finding that the procedure is out of order in any way.

24 With those preliminary matters out of the way, I turn to consider the various discretionary matters which have been debated before me. It is conceded by Mr Odgers, as I have said, that the first two requirements of subsection 5 have been satisfied. I agree with Mr Odgers that that is so. Do the interests of justice then require that the witness give the evidence?

25 First, I have no doubt that the evidence is likely to represent an important part of the Crown case. It goes directly to demonstrate the illegality of the purpose involved in the alleged retention of the cash monies. Moreover, the evidence is concerned not merely with the surveillance period but the earlier period, going back to the time, at least, when Mr Segal was first introduced to Mrs Ronen. This is another important aspect of the Crown case and Mr Agoston’s evidence in that regard is likely to be critical.

26 Secondly, the evidence is an important part of the Crown case since it is hardly likely that the defence will do other than dispute the other evidence regarding the sending of the monies overseas. Again, the evidence is highly probative and important to meet any defence submission that the alleged skimming of the monies and their retention did not involve any attempt to defraud.

27 Thirdly, although Mr Odgers argued that the Crown has plenty of other evidence to prove the sending of the money overseas, at least during the surveillance period, there is in my view little doubt that this will be an issue hard fought by the accused. The facts relating to the pre-surveillance period are as well important matters in the Crown case.

28 All of these matters suggest, to my mind, that the Crown evidence sought to be lead through Mr Agoston is likely to be an important and significant part of the Crown case.

29 Mr Odgers argued that the charges in the present trial are by no means the worst crimes in the criminal calendar. That may be so, but the amounts involved suggest that the crimes, if they were committed, were of a significant character. There is a plain public interest in requiring that the evidence be given because of the apparent level of criminality involved.

30 On the other hand, there is the undoubted fact that the giving of the certificate will not necessarily provide Mr Agoston with complete protection. First, there could be a loss of standing in the community as Mr Odgers pointed out. Secondly, it certainly appears to be the position that the certificate would not protect the witness in relation to proceedings of a disciplinary kind commenced against him by the Institute of Chartered Accountants. In this regard, I am not satisfied however that Mr Agoston could be compelled to testify at disciplinary proceedings conducted by the Institute of Chartered Accountants. It seems to me the better view is that by-law 45(d) of the by-laws is not an express provision providing that the privilege against self-incrimination is thereby overturned. Nor do I consider there is any implied abrogation of the privilege. There is no special feature associated with the accounting profession that would, as a matter of necessity, imply abrogation of the privilege (see Police Service Board v Morris 156 CLR 397 at 404; 408 and 411 where the relevant question is identified. In that case, in the ultimate, the Court held that, in the case of the Police Force, the privilege against self-incrimination had been abrogated).

31 Nevertheless, it is plainly a matter of significance that, especially in relation to his professional situation, Mr Agoston would not obtain the same protection by virtue of the certificate as he would in proceedings in an Australian Court. It has not been suggested otherwise by the Crown. This is but one of the matters to be considered, however, and I do not think that it can be successfully argued that persons in a profession should not be required to give evidence simply because their involvement in a professional body may result in the certificate providing less than full protection in disciplinary proceedings instituted by that body. If that were the case, it could bring about a situation where it could be said that the interests of justice could never require a professional person to give evidence within the meaning of s 128. Such a consideration would extend not only to people in ancient professions but to police officers, nurses, teachers and for that matter, to members of golf and bowling clubs. Similar considerations would extend to people holding licences such as hotel-keepers and club secretaries. Additionally, it needs to be remembered that there is a consistent line of authority that establishes that disciplinary proceedings are not penal in nature. Although such proceedings may result in the imposition of “penalties”, their function is, as a general matter, essentially protective. (Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77; Re; Maraj (a Legal Practitioner) (1995) 15 WAR 12). Disciplinary proceedings are designed to ensure the maintenance of proper standards within the relevant profession. That would seem to be the case in relation to disciplinary proceedings affecting the profession of chartered accountants.

32 A further consideration is that, even on the basis of the information presently known, disciplinary proceedings could be instituted against Mr Agoston.

33 The third matter is the question of Mr Agoston’s position as a nominee of Agoston, Douglas & Partners as a registered tax agent. It seems clear that a Tax Agents Board might, in appropriate circumstances, refuse to re-register the accounting firm as a tax agent because of matters related to Mr Agoston’s good fame, integrity and character. Moreover, the Tax Agents Board has the capacity to cancel or suspend the registration of a tax agent on the basis that Mr Agoston, as a partner in the firm, is not a person of good fame, integrity and character. There are other grounds as well. It appears to be accepted by the prosecution in the present matter that a certificate under s 128 of the Evidence Act 1995 given by this Court would not protect Mr Agoston if his evidence were sought to be admitted before a Tax Agents Board.

34 The arguments advanced on behalf of the parties assumed some degree of complexity in this area. Although Mr Game made the concession I have identified in the last paragraph, he nonetheless argued that this was not a discretionary factor in Mr Agoston’s favour in determining the requirements of the interests of justice. To the contrary, he argued that it was of significance that s 128 of the Commonwealth Evidence Act specifically contemplated bodies such as the Tax Agents Board as a result of the wide definition of “Australian Court” in s 4 of the Act. Yet, the legislation failed to include such a body in the recognition it provided to s 128 certificates issued by State Courts. This was apparent from the combined operation of ss 128(10) and (12) of the Commonwealth Evidence Act. In my view, however, I think Mr Agoston is entitled to ask the Court to take into account the matter revealed by the Crown’s appropriate concession, namely that a certificate issued under the State Evidence Act will not provide complete protection to Mr Agoston in relation to his position as a nominee of a firm registered as a Tax Agent. This is so in relation to the transcript of his evidence in this Court, if that evidence is required to be given.

35 The more difficult question is the second one raised under this heading. This is the question whether a consideration of the history and language of regulation 168 should lead to a conclusion that the privilege against self-incrimination in favour of a person such as Mr Agoston has been abrogated. The practical consequences may be simply stated, if the relevant privilege has been taken away: not only would Mr Agoston’s evidence in this Court be admissible before the Tax Agents Board, he could be compelled to attend and give evidence before the Board in relation to matters arising out of the transcript without the protection of that relevant privilege.

36 Mr Game’s arguments focus on the language of the section. Mr Odgers however had relied on a decision of the Full Court of the Federal Court in Commissioner of Taxation v De Vonk (1995) 61 FCR 564. This case was concerned with judicial review of a decision of the appellant to issue a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) requiring the respondent to give evidence concerning certain matters. The respondent had sought to decline to answer questions in response to the notice on the ground that the answers might tend to incriminate him. The Court held that the privilege against self-incrimination had been abrogated by the combined operation of s 264 of the Act and ss 8C and 8D of the Taxation Administration Act 1953 (Cth).

37 The decision turned essentially upon the history and language of the relevant statutory provisions. In addition, however, the joint judgment of Hill and Lindgren JJ found further support for its conclusion in matters of substantial policy relating to the possible stultification of the taxation legislation, if a contrary conclusion were to be reached.

38 Mr Odgers has argued that the language of regulation 168, in one sense, is more inflexible than the language of the statutory provisions under consideration in De Vonk. Mr Game, on the other hand, has argued that, consistently with the decision of the High Court in Police Service Board v Morris, this is not a case where any express provision has been identified as abrogating the privilege against self-incrimination. Moreover, Mr Game attempted to distinguish De Vonk’s case from the present matter. He pointed out, with some considerable force, that the broad and important public policy considerations which had, in part, supported the decision in De Vonk were completely absent in relation to a regulation dealing with the regulation of Tax Agents.

39 This question is, admittedly, one of some complexity and difficulty. I am very reluctant to come to other than a tentative conclusion on the matter since the issue arises in a very indirect and abstract way in the present matter. I propose however to deal with the issue in this way: I consider that there is sufficient force in Mr Odgers’ argument for me to hold, albeit tentatively, that the position may very well be that Mr Agoston would have no right, were he to receive a notice from a Chairman to attend and give evidence, to refuse to answer questions on the ground that they might tend to incriminate him. The very real possibility that this is so is, in my view, a factor I am entitled to take into account in relation to the overall considerations as to whether the interests of justice require that Mr Agoston give the relevant evidence. I propose to take the matter into account in that fashion.

40 The final matter which was substantially debated was the unreliability of Mr Agoston’s evidence. It certainly appears to be the situation that Mr Agoston has not been truthful both in his dealings with the National Crime Authority and with the Federal police officer whose evidence I earlier identified. But I do not think Mr Agoston’s situation is identical with the situation revealed in Collison.

41 In that trial, the Crown case had been that two men were present when the deceased was shot. There was a body of eyewitness evidence which made it plain that two men were present. The only issue was which of the two men was the shooter? The facts in the case demonstrated that a very efficient police investigation had effectively shut down the Greenwich Peninsula where the shooting took place and that this happened almost immediately after the shooting. Two men were seen together at different times moving around the Peninsula by residents and, in the ultimate, two men were apprehended in a park not far from where the shooting took place and were arrested. Because of the preponderance of eyewitness evidence favouring such a conclusion, the Crown case was that it was Collison who was the shooter. He alone had been charged with the murder. But the fact remained that the two men were the only real suspects in the shooting itself. It was plain, on the Crown case, that one of the men had shot the deceased. During the trial, the defence indicated that it may wish to call the second of the two men, Mr Simon Bradley. There was forensic evidence in the trial which was capable of pinpointing either of the two men as the shooter but, as I say, the preponderance of eyewitness evidence plainly favoured the shooter as Collison.

42 Mr Bradley was sought to be called by the Crown during a preliminary hearing but objected to giving the evidence. Counsel on his behalf argued that the interests of justice required that his evidence not be given.

43 The position of Mr Bradley during the Collison trial, was markedly different from that of Mr Agoston in a number of respects. First, Mr Bradley had been charged with a serious offence himself and implicated in the principal crime. Secondly, his trial had not yet come on for hearing. Thirdly, neither the Crown nor the defence apparently had any idea what he would say, if called, although there was a strong inference to suggest that his evidence would be used by Collison to bolster his own position perhaps at the expense of Mr Bradley.

44 The remaining point of distinction between the case of Mr Bradley and that of Mr Agoston relates to the inherently unreliable aspect of Mr Bradley’s evidence. This became the central feature of the appeal following Collison’s conviction. At paras 28, 29 and 30 Tobias J with whom James J and Howie J agreed) said this: -

“28. Accordingly, the outcome of this appeal centres on whether his Honour was entitled, when determining that he was not satisfied that the interests of justice required Bradley to give the evidence, to apply to Bradley the well-established principle of the common law that the evidence of an accomplice was "inherently suspect". In this respect, the nub of the appellant’s argument was that his Honour had erred in finding that Bradley was an unreliable witness simply because he fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence "may be unreliable". It was submitted that his Honour could not opine that the evidence of Bradley would in fact be unreliable without first ascertaining the nature of the evidence that he was prepared to give. It was contended that it was necessary to ascertain and then assess that evidence before his Honour could determine that it would be so unreliable that, in the interests of justice, Bradley should not be required to repeat that evidence, one assumes, before the jury.
29. In my opinion, the appellant’s submission should be rejected. It is, of course, essentially circular. It makes no sense to suggest, as does the submission, that although it would be in the interests of justice to require Bradley to give incriminating evidence in the absence of the jury notwithstanding that the charges against him have not been finalised, it would (or, at least, may) not be in the interests of justice to then require him to give the same evidence in the presence of the jury.

30. As I have observed, it was not contested that his Honour was correct in stating the "well-established principle" that the evidence of an accomplice is "inherently suspect". Equally, it was not contested that Bradley was a witness who fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence may be unreliable and in respect of which a warning to the jury, if requested, may be necessary pursuant to s 165(2). Accordingly, I do not understand why his Honour was not entitled to describe any evidence that Bradley might relevantly give as inherently unreliable. It seems to me that it was not necessary for his Honour to know the exact details of the evidence which Bradley would give before he could come to that conclusion.”

45 Tobias JA then went on to consider the various hypothetical examples of the possible nature of Mr Bradley’s evidence. He concluded that all three theoretical examples were likely, in the particular circumstances of that matter to be have been unreliable and therefore would have called for a warning to that effect.

46 The position of Mr Agoston seems to me to be quite different. On the assumption that he has told lies (and there appears little doubt that he has) it is still not the position that one must assume that he will not tell the truth if he is now called to give evidence. He is after all a man of mature years, of apparent good standing in his profession and that profession is a long established and honourable profession. He is apparently a person of good standing in the community. It is not to be assumed, either lightly or at all, that Mr Agoston will prove to be an unreliable witness in that his evidence will be revealed as plainly a tissue of lies or inherently unbelievable. Indeed, the very opposite may be the situation. In any event, if it does appear, should he be required to give evidence, that he falls into the category of a completely unreliable witness, that situation may, as I said at the outset, lead to a conclusion that he should not be required to give evidence before the jury.

47 It may well be the position however, that the evidence given by Mr Agoston will bring about a situation where a warning based on unreliability will be called for. It is possible to speculate on the content of such a direction at this stage but a precise definition of the content of any such warning is simply not possible until his evidence is known. The mere fact that his evidence may require a warning does not put him into the same position as that which involved the witness Bradley in the Collison trial. Moreover, Mr Agoston is not a charged person awaiting trial as was Mr Bradley.

CONCLUSION

48 I have endeavoured to give consideration to all of the matters urged upon me by the Crown and Mr Odgers. I have also endeavoured to take into account the brief observations of Mr Richter and counsel for the other accused. Weighing up all the matters I have considered, I have come to the conclusion that it is in the interests of justice that Mr Agoston be required to give the evidence identified by Mr Game SC on behalf of the Crown. The crimes are serious, the evidence is important to the Crown case and likely to be important in relation to issues to be raised by the defence. Those considerations, it seems to me, in the ultimate, outweigh the considerations that are personal to the protection of Mr Agoston as an individual, a member of his profession and as a tax agent. They outweigh the considerations that recognise that a s 128 certificate will not provide complete protection to Mr Agoston in these various capacities. They also outweigh in my view the proposition, serious though it is, that the relevant regulation may well have abrogated the privilege against self-incrimination otherwise available to a person in proceedings before a Tax Agents Board. The issue of Mr Agoston’s potential unreliability is an important one but, at this stage, I am not satisfied that it has been demonstrated that Mr Agoston will do other than tell the truth when he is called to give evidence. It is possible he may not but I cannot say that this will be so, or even that it is likely to be so.

49 I am satisfied of all the matters contained in s 128(5), they being the matters specified in (a), (b) and (c) of that sub-section.

50 I am satisfied, Mr Agoston having taken objection under sub-s 1 of s 128, that there are reasonable grounds for the objection; and further, I will provide a certificate under sub-s 6 requiring, as I do, that the witness give the relevant evidence. In my view, it is in the interests of justice that the witness give the evidence and the interests of justice, for the reasons I have stated in this decision, require that the witness give the evidence.

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Last Modified: 07/16/2007