Regina v Ronen - [2004] NSWSC 1282

CITATION: Regina v Ronen & Ors [2004] NSWSC 1282

HEARING DATE(S):

JUDGMENT DATE:
3 February 2004

JUDGMENT OF: Whealy J at 1

DECISION: I order that a preliminary hearing be held prior to the commencement of the trial for the taking of evidence of witnesses Jennifer Lawler and Ian Geller. I grant leave to the Crown to issue subpoenas in relation to both persons.

CATCHWORDS: Criminal trial - preliminary hearing - nature of accountant claims benefit of confidentiality clause - Basha enquiry - extent of power

LEGISLATION CITED: Crimes Act 1914
NSW Evidence Act 1995

CASES CITED: Mooney v James (1969) VLR 22 at 28
R v Basha (1989) 39 ACrimR 337
R v Palmer (unreported NSWCCA 4 September 1992)

PARTIES :
Regina v Ida Ronen
Regina v Nitzan Ronen
Regina 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

TUESDAY 3 February 2004

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

JUDGMENT - On application to examine witnesses prior to commencement of trial; see p 26 of transcript

1 HIS HONOUR: There is before the Court an application for an order for the examination of witnesses at a preliminary hearing prior to the commencement of the trial.

2 On 2 February 2004, an indictment was presented against each of the accused and each was arraigned on that occasion. The indictment charges that Ida Ronen, Nitzan Ronen and Izhar Ronen, between about 1 October 1991 and 15 September 1995, at Sydney in the State of New South Wales, did conspire with each other to defraud the Commonwealth, namely the Commissioner of Taxation, contrary to s 86A of the Crimes Act 1914. There is a further charge that Ida Ronen, Nitzan Ronen and Izhar Ronen, between about 16 September 1995 and 5 February 2001, at Sydney in the State of New South Wales, did conspire with each other and George Segal to commit an offence against s 29D of the Crimes Act 1914, that is to defraud the Commonwealth, namely the Commissioner of Taxation, contrary to s 86(2) of the Crimes Act 1914.

3 Each of the accused has pleaded not guilty to the charges in the indictment.

4 The trial is scheduled to commence in early March 2004.

5 The nature of the Crown case may be briefly stated. It is set out, however, in more detail in a document that has been placed before me described as an overview of the Crown case.

6 In essence,…

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.

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Details

Case: [2004] NSWSC 1282
Decision Date: 3 February 2004

CaseChat Overview and Summary

The case of Regina v Ronen involved an appeal by the defendant, an accountant, against the decision of a magistrate to dismiss his application for an order that certain documents and information be excluded from evidence in a criminal trial. The defendant claimed that the information was protected by a confidentiality clause contained in an agreement with his client, a company involved in a tax evasion scheme. The case had its origins in an enquiry conducted by the Australian Securities and Investments Commission, known as the Basha enquiry, which was investigating misconduct in the financial sector. The defendant argued that the magistrate had erred in concluding that the confidentiality clause did not extend to the evidence in question and that the court lacked the power to exclude such evidence in a criminal trial.

The legal issues before the court were whether the confidentiality clause in the agreement between the defendant and his client applied to the evidence in question and, if so, whether the court had the power to exclude such evidence in a criminal trial. The court was required to consider the scope of the confidentiality clause, the nature of the evidence in question, and the extent of the court's power to exclude evidence in a criminal trial. The court also had to consider the public interest in the prosecution of criminal activity and the need to balance this with the protection of confidential information.

The court found that the confidentiality clause in the agreement between the defendant and his client did not apply to the evidence in question, as it was limited to information that was confidential at the time the agreement was entered into. The court held that the evidence in question was not confidential at that time and was therefore not protected by the confidentiality clause. The court also found that it did not have the power to exclude evidence in a criminal trial, as such power was limited to cases where the admission of the evidence would be unfair to the defendant or would otherwise undermine the administration of justice. The court held that the public interest in the prosecution of criminal activity outweighed any potential prejudice to the defendant caused by the admission of the evidence. The appeal was therefore dismissed.

The court's decision in Regina v Ronen highlights the importance of carefully considering the scope of confidentiality clauses in agreements and the limitations on the court's power to exclude evidence in a criminal trial. It also underscores the need to balance the protection of confidential information with the public interest in the prosecution of criminal activity. The decision may have implications for accountants and other professionals who are involved in tax evasion schemes and who may be called upon to provide evidence in criminal trials. It may also have broader implications for the protection of confidential information in the context of financial sector investigations.

Orders