Regina v Ronen

[2004] NSWSC 1303

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1303
HEARING DATE(S):
JUDGMENT DATE:	10 November 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	Evidence allowed in part and re-examination permitted
CATCHWORDS:	Practice and Procedure: Crown holding confernce with expert witness prior to re-examination - Offer of records of interview to the accused: is the evidence relevant? - If so, there is a need for a direction to be given to the Jury
LEGISLATION CITED:	Evidence Act
PARTIES :
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

WEDNESDAY 10 November 2004

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

JUDGMENT – see page 6601 of transcript

1 HIS HONOUR: This decision arises following debate and discussion between the parties yesterday afternoon in the absence of the jury.

2 There were a number of issues raised, although during the course of the debate some of those became of less importance and others disappeared from the scene. The ones that I have to deal with might be conveniently grouped as follows. The first issue relates to evidence proposed to be adduced through Mr Moulds: This in turn can be subdivided into a number of topics; first, whether the Crown should be permitted to adduce evidence of offers to each of the accused in relation to proposed records of interview; Second, Mr Moulds' involvement in relation to the taking of statements and the like from Messrs Greyling, Geller and Hurwitz; Third, an issue raised by Mr Richter QC, really at the request of the Crown, as to whether he will be permitted to ask questions about Mr Moulds undertaking any investigation into commission or agency on or after 29 June 2004. Perhaps it may be convenient if I deal with that matter at this stage.

3 In an earlier brief ruling I referred to an e-mail in which Mr Moulds had apparently made a remark that, as I read it, related to Miss Musgrave. I think I referred to it at the time, as a slightly derogatory remark but the remark, as I read it, had no bearing whatsoever on any issue in the trial. However Mr Rosenbaum at an earlier point in time had seen either this document, or a reference to the document, and he had drawn the inference that the remark was of a different character. I think I should state quite categorically that in my view that particular remark had no relevance to any matter in this trial. The e-mail itself did I think, as I indicated at the time, even though the document was privileged, touch upon the need to look into commission or agency sales. Therefore, it seems to me, that Mr Richter is entitled to ask Mr Moulds the question that he wants to ask about that topic. But I would not anticipate that there would be any need for Mr Richter to touch upon the remark made about Miss Musgrave because in my view that is of no relevance.

4 The next series of matters raised yesterday afternoon were the questions as to whether the Crown would be entitled to put into evidence the pleadings in the taxation case involving the Ronens in the Federal Court as a response to the defence's wish to place in evidence certain notices of objection to amended tax reassessments. There had been a number of objections I should say, lodged to amended reassessments by, as I understand it, Mrs Ronen, On Fovo Pty Ltd and Nitzan and Izhar Ronen. As far as I know I don't have those documents in front of me. Nor do I have the relevant pleadings in front of me. Nevertheless, I have endeavoured to come to a view about this particular argument in the absence of the detailed documents. I have had the benefit of a sufficient outline of the material through Counsel’s submissions

5 The next general issue was whether there could be evidence placed before the jury explaining a certain lack of action on the prosecution part between February and August 2002. It has now been agreed in general terms that a statement may be placed before the jury in that regard. There is no need for me to touch upon it. I will leave the parties to agree to the form and content of the statement.

6 The final issue I think really related to the content of Ms Wade's re-examination. In that regard there was a separate matter raised, this was the issue as to whether the Crown should be denied the right to have a conference with Ms Wade prior to re-examination. Again I propose to deal with that issue out of order because I believe I can deal with it quite simply.

7 In my view, nothing has been placed before me that would warrant my ordering the Crown not to hold a conference with the witness before re-examination. No authority has been cited to me, no provision of the Evidence Act has been placed before me to indicate that such an order could or should be made. Moreover, I am firmly of the view that it would be unfair to the Crown to prevent the Crown having a conference with the witness prior to re-examination.

8 There are three points I want to make in that regard. First, the witness has been or will have been cross-examined, assuming her evidence finishes today, a matter about which I am not entirely confident, for about sixteen days. This is a very lengthy time during which she has been cross-examined. In my view, particularly as she is an expert witness and particularly having regard to the complexity of the matters on which she has been cross-examined, the Crown is entitled to have a conference with her prior to re-examination.

9 Secondly, I am sure Mr Richter did not intend this in his submission, but there is an implication in his submission that somehow or other the witness would be leading the Crown around by the nose during such a conference and would be putting ideas into his head as to what he should ask. To my mind, as I say I am sure Mr Richter did not mean it, but the submission carries with it quite an insulting underlay. I have every confidence that experienced senior counsel for the Crown will conduct himself with all due propriety in relation to any conference with the witness.

10 The final point I want to make is this: Mr Richter has, in ringing terms, branded the witness as a partial witness and has said other quite vehement things about her. Now, it is a matter for the jury, it seems to me, what view they take of Ms Wade. It is not a matter for the trial Judge. The jury may endorse Mr Richter's criticisms of her or they may reject them. All I can say is, for my part, I do not perceive Ms Wade in the same way as Mr Richter has branded her. She has refused to alter her opinions despite strenuous cross-examination by three experienced Senior Counsel. All I can say is that I do not agree with the submission. It is, I repeat, essentially a matter for the jury but nothing has been put to me that would warrant my declining to allow the Crown to confer. In my view it would be quite unfair to make such an order and therefore I take the view I should not make such an order.

11 I return now to the other issues. In relation to the record of interview issue, I think it needs to be said that on 12 August 2004 I delivered a judgment which in part dealt with the issue as to whether the Crown should be entitled to lead evidence before the jury of an offer of records of interview to Nitzan Ronen and Izhar Ronen. That judgment is separately available and it appears in the transcript at page 3600, at a time when the trial was in its comparative infancy. The particular part of the judgment relevant to the issue appears at pages 1 through to 5. I do not propose to repeat any of it here but I would like it to be taken as part of the present decision.

12 The net effect of the decision was that I held that evidence of the offer of an interview to both Mr Nitzan and Izhar Ronen could be placed before the jury together with evidence as to each gentleman's response. The position of Mrs Ronen was however different, as I saw it, at that point of time.

13 In the present application, however, there has been evidence placed before me in relation to Mrs Ronen which identifies the following matters; first, that Mr Moulds will give evidence that on 7 February 2001 at about 10.15 or so Mr Justin Orsborn, a solicitor, came to Mrs Ronen's apartment to give legal assistance to her. She was at that time in her bedroom lying down on her bed. Mr Moulds had a number of discussions with Mr Orsborn. Although he made no note of it, he said that at a certain time he discussed with Mr Orsborn an offer he wished to make to Mrs Ronen to partake in the record of interview. Mr Orsborn informed Mr Moulds, according to him, that Mrs Ronen was unwilling to partake in the interview in relation to this matter. There is further material in Mr Moulds statement but I do not think I need go to it in detail.

14 In addition, Mr Moulds will give further evidence of the situation so far as offers of interview to each of Mr Nitzan Ronen and Mr Izhar Ronen. I do not propose to set the material out in detail in this decision but it is set out in his statement. What the statement reveals really is that, although this evidence will come in through Mr Moulds, it will necessarily involve hearsay evidence, although no objection has been taken on this account. Secondly, Mr Moulds has relied upon a number of PROMIS notes and the Crown has indicated that if the evidence is allowed Mr Moulds will simply be asked to give the net or overall effect of those notes. The notes themselves will not be tendered. Mr Hill QC, however, of course, indicated that he may wish to cross-examine in relation to the contents of those notes if the subject is allowed.

15 Mr Van de Wiel QC pointed out on behalf of his client that the material in Mr Moulds statement identifies that there was a conversation between Mr Moulds, on the one hand, and Mr Orsborn and Mr Izhar Ronen on the other. During this conversation Mr Moulds informed Mr Orsborn it was his intention to interview Mr Ronen and he was informed that by Mr Orsborn that his client did not wish to partake in the record of interview.

16 There was then a taped interview during which Mr Izhar Ronen informed Mr Moulds that he did not wish to partake in a formal record of interview until he had received further legal advice. The point being made by Mr Van de Wiel is that there does not appear to be any evidence that the NCA, Mr Moulds, or anyone else on his behalf, chased up Mr Izhar Ronen to pursue the issue of whether there would be a record of interview.

17 So far as Mr Nitzan Ronen and Mr Izhar Ronen are concerned, it is my view that nothing has been placed before me that leads me to conclude differently than I did in the decision given on 12 August 2004. I still remain of the view that the offer of an interview is a matter that is relevant, essentially for the reasons that I gave in that decision. With all due respect, Mr Van de Wiel's argument misses the point. Perhaps it is true that the NCA did not chase up Mr Izhar Ronen for an interview and no doubt Mr Moulds could be cross-examined to that effect, but what is significant I think as a relevant matter is that the offer was made and that in fact no interview took place.

18 Mr Hill put a number of arguments and I have taken those into account but, despite those additional matters, ultimately I have come to the conclusion that there is no reason to differ from the view I expressed on 12 August 2004.

19 In relation to Mr Richter's submissions, a number of which Mr Hill and Mr Van de Wiel adopted, I think it is necessary to emphasise at the outset that what the Crown is endeavouring to do is to respond to the defence attack on the investigation process. The Crown wants to make it clear to the jury that an opportunity was afforded to each of the accused to put their position so that, to that extent, at least, it cannot be said the investigation was defective. Couples with that, there will be the evidence relating to the statements taken from the internal and external accountants.

20 The attack that has been made on the Crown case is very broad, very wide-ranging. While it has been said to me that it will not be suggested to the jury that the Crown did not offer an opportunity for a record of interview, nevertheless, it seems to me that, because of the very wide-ranging, broad nature of the defence attack, the jury may well infer in the absence of evidence that the accused simply may not have had an opportunity of putting their position. It is to rebut that suggestion that the Crown suggests the evidence is relevant and for no other purpose.

21 Secondly, in relation to Mr Richter's argument, I have considered his submission relating to the fact that the conversation was essentially between Mr Moulds or Mr Orsborn. I do not agree that the fact that Mr Moulds gave the opportunity for Mrs Ronen to partake of an interview to her solicitor and not to her personally renders the evidence inadmissible. It would, in my view, have been quite inappropriate, in the circumstances outlined in the statement at paragraphs 7 through to 13 for Mr Moulds to insist that he be permitted to confront Mrs Ronen personally to make the offer of a record of interview. Moreover, Mr Orsborn indicated to Mr Moulds that his client’s instructions were that she would not participate in an interview.

22 Therefore, I have come to the conclusion that I should allow the Crown to lead the evidence in relation to Mrs Ronen as well. However, I have been concerned, as I indicated in the judgment of 12 August 2004, that a clear direction should be given to the jury when that evidence is led. I remain of the view that a direction should be given to the jury reminding them of each accused person's right to silence and pointing out to them that no inference adverse to any of the accused can be drawn from the fact that each of them, when offered the opportunity to participate in an interview, either personally or through their solicitor, may have declined to do so, if that is what the jury find happened. Further, I intend to inform the jury that the evidence is admissible on one basis only, and it may be used only on that basis. That is, the evidence is to be seen as part of the Crown response to the attack on the investigation and, therefore, relevant only to enable the jury to assess what the investigating officers did and did not do and the reasons for their actions in that regard.

23 I come next to the tax matters. It seems to me that in the light of the cross-examination of Ms Wade, that the defence is entitled to place before the jury the objections to the assessments but I have come to the view that I should not allow the Crown to lead the evidence of the pleadings. My reason is first I think it would become a distraction to the jury. There is not a precise equality between the nature and function of the respective documents. Secondly, I think that the Crown will be entitled to ask the jury to give little weight to the matters contained in the objections and their contents. The further evidence of the pleadings, however, given that they arise in rather a different context, would, as I say, tend to operate as an unnecessary distraction. As will other rulings given throughout the trial, there may be developments that will lead to a review of this ruling but that is my view at present.

24 Finally, Ms Wade's re-examination and the Crown's desire to raise with her, perhaps after a conference has been held, some re-examination in relation to the question at page 6334 relating to her analysis, and particularly her analysis of the red books. My ruling is that the Crown is entitled to re-examine if it wishes on the topic of what she intended to refer to when she referred to the “evidence” of Ms Lawler.

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Last Modified: 07/16/2007