New South Wales Supreme Court CITATION : Regina v Ronen & Ors [2004] NSWSC 1299 revised - 28/04/2005 HEARING DATE(S) : JUDGMENT DATE : 5 October 2004 JUDGMENT OF : Whealy J at 1 DECISION : I will allow the Crown to call that evidence. CATCHWORDS : Admissibility - Relevance of state of mind of investigators - s 55 of Evidence Act LEGISLATION CITED : Evidence Act Regina v Ida Ronen PARTIES : Regjna v Nitzan Ronen Regina v Izhar Ronen FILE NUMBER(S) : SC 70222/03; 70032/03; 70223/03 Mr T. Game SC; Ms McNaughton - Crown COUNSEL : 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 COURT Local Court JURISDICTION : 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 5 October 2004 70222/03 - REGINA v Ida RONEN 70032/03 - REGINA v Nitzan RONEN 70223/03 - REGINA v Izhar RONEN JUDGMENT - On evidence to be called from Miss Wade; see p 5165 1 HIS HONOUR: A blanket objection has been taken by Mr Richter QC to part of the evidence that the Crown has outlined it wishes to adduce from Miss Wade. This is generally described as evidence relating to the course of the investigation she undertook. 2 Mr Richter does not dispute that it may be relevant for her to demonstrate what she did, but where he takes issue with the evidence is in relation to what she did not do and the reasons for it. I should perhaps qualify that by saying it is quite apparent that Mr Richter, and perhaps other counsel, propose to attack Miss Wade, if that is not too strong a word, in relation to the fact that there were a number of things she did not do. Cross-examination along these lines is consistent with the general area of cross-examination that has been adopted by the defence throughout the course of this trial. There is no need for me to give details of it, but it began a long time ago when, for example, Mr Moulds was first called and he was cross-examined. If one reads his cross-examination it will be seen that a considerable number of questions were put to him indicating that there were many, many matters that he did not himself investigate and, by adoption, that the investigating team did not examine. The same approach has been taken extensively with other members of the investigating team. 3 The reason, as I have understood it, why this has become an issue may be simply stated. The course of the investigation is very much an issue on the defence argument and this is because the defence wish to place before the jury the proposition that the investigation has been blinkered, that it was blinded, that it was conducted with a closed mind and with a particular attitude to a considerable amount of the material that was under consideration, especially in the early period. 4 The real relevance of the issue, the defence will argue, is that the investigators simply failed to examine the reasonable possibility that there was a completely different type of agreement in existence between the accused, that is Mrs Ronen and her two sons, than the one alleged by the Crown. I have described this more fully in my decision of 30 September 2004. The agreement asserted by the defence as one reasonably available and one consistent with innocence, is a type of agency agreement for the disposal of certain goods at the retail shops in the nature of a consignment. The defence is not critical of the investigation merely in an academic sense. It is very much, as I see it, a criticism that is highly relevant to the ultimate fact in issue here, first, that which the Crown must prove namely an agreement to defraud the Income Tax Commissioner; and secondly, the defence namely that there is a reasonable explanation in the form of an agreement consistent with innocence. 5 So while I understand the logic of Mr Richter's argument, particularly when he says it does not really matter why Miss Wade did or didn't do something, it seems to me that those matters are matters which, when given in evidence by her, can rationally affect either directly or indirectly the assessment of the probability of the existence of the fact in issue that I have identified, namely a closed mind response to all the matters in the investigation carrying with it the failure to examine the possibility of an agreement of a particular kind consistent with innocence. As a matter of logic it is difficult to say that, where the allegation is that the investigation was conducted with a closed mind, evidence as to the contents and working of that mind is not relevant. So too with the material leading to that state of mind. 6 This, I think, is seen as being even more likely to have relevance within the meaning of s 55 of the Evidence Act when the particular matters that are likely to emerge in evidence, as I have understood the Crown's introduction of the various topics, relate to what Ms Wade was and was not told by people, having, at least on the face of it, a reliable knowledge of the matters. For example, in this trial we have looked at the position of Mr Greyling who was then the financial controller of the Dolina companies. It does seem to me that at least it is relevant to the course of the investigation to see what Miss Wade was told by him and to see how that affected her approach to what it was that she was investigating and to what it was that she was not investigating. So, it is so with certain other people within the Dolina organisation or related to it who have already given evidence in this trial, Mr Geller, Miss Lawler, Ms Bortolin and anyone else who has been able to supply Ms Wade with useful information of the relevant kind. 7 It may be that there are layers of relevance for some of this material. Some of it may be quite highly relevant to the fact in issue I have identified whereas other of it may be perhaps relevant but in a more peripheral and indirect sense. But the objection which has been taken at the moment is a blanket objection. And I must deal with it in an overall manner. 8 As I say, it may be that specific objection can be taken to specific matters but in general terms I am satisfied that evidence from Miss Wade as to the course of the investigation she undertook, namely what she did do and what she did not do and evidence that identifies the nature, source and reasoning of the decisions she made during the course of the investigation, in my view, are not irrelevant to the principal issues in this trial. I will allow the Crown to call that evidence. ********** Last Modified: 07/16/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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