New South Wales Supreme Court 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) 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 CASES CITED : 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 Regina v Ida Ronen PARTIES : Regina v Nitzan Ronen Regina v Izhar Ronen FILE NUMBER(S) : SC 70222/03; 70032/03; 70223/03 Mr T. Game SC; Ms S. 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 : Mr 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 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 17 February 2001. In the apartment there were Mrs Ronen, her former partner George Segal and a domestic helper. Those accompanying Federal Agent Moulds were persons from the National Crime Authority, the Federal Police and the tax office. They were later joined by a computer expert and perhaps by other persons as well. 5 After introducing himself, Federal Agent Moulds indicated to Mrs Ronen and Mr Segal, as was no doubt evident in any event, that the process was being video recorded and, during part of the time, audio recorded. 6 The Agent informed Mrs Ronen of the fact that there was a search warrant and he identified the basis of it. He said (Tape 1, page 4 line 55 to page 5 line 67): "N Okay I've got the search warrant I'll tell you the basis of our investigation it's in relation to your um Dolina group of businesses and retail outlets that sell clothing that's operated by yourself and your sons. I Yes. N Okay the allegation is that er you're involved in the skimming of cash proceeds from those businesses I yes. N And failing to declare those cash proceeds or some part of those cash proceeds to the Taxation Department. I Mm hm. N It's further alleged that your - stutters - some of that money you were - stutters - remitting overseas to accounts. -Aside- TS - Whispers - could you set up a (wds) for me (wds). N Overseas and investing that in in in retail a' in er investment properties real estate overseas (wds). I Mm. N Okay so basically it's all about Defrauding the Commonwealth by not declaring proper income from the business interests you're involved in. I Mm hm. N And um we believe that um there's going to be evidence in this house in in the way of perhaps um some cash registers or computers that you use to relay information and um figures from those businesses to this point is that correct in this case. I Mm hm" 7 (I have referred to the video counter numbers for the purposes of this decision as line numbers and shall continue to do so throughout. The legend for those speaking is Moulds – "N"; Mrs Ronen – "I"; and G – Mr Segal). 8 Federal Agent Moulds then read the search warrant to Mrs Ronen and Mr Segal while they were sitting in the lounge room. This took a considerable time. 9 Following this aspect of the procedure Mrs Ronen indicated that there were certain items of equipment in her bedroom. She had been asked about the whereabouts of "computers and registers and things". (See Tape 1, page 16 line 112). 10 She took the officers to the bedroom where the following exchanges occurred (page 18 line 150 to page 19 line 174): "I Right. N Um and that is connected in some form to your business premises. I Nothing to do. N Nothing to do with the business premises. I No. N Okay so what what what do these this equipment here what purpose do they have here. I Just um I'm working with them. N Beg your pardon sorry. I I'm working with them. N You're working with them. I Nothing to do with the Dolina. Background noise - Mobile phone rings. N Nothing to do with Dol' Dolina at all. I No. N Alright so um why why would you have a a a register here. I With all the this working. N Sorry I don't understand. I I have to talk to my solicitor. N Okay no problems at all and and who would that be. I I don't know yet. N Don't know yet alright um if if that's that's something you wish to do er I'm more than happy to make those arrangements how how would you contact the solicitor. I Not yet I don't know if he's here. N Do you do you have a person in mind. I Not actually. N Not actually. I No." 11 At that precise point Federal Agent Moulds cautioned Mrs Ronen and had a further conversation with her regarding her desire to speak to a solicitor. I should set this out in full (page 19 line 175 to top of page 209): "N Alright then no problems at all um having having looked at this equipment here um and it is my belief that er that this equipment is associated with your retail premises I best caution you that you're not obliged to say anything or do anything unless you wish to do so as anything you do say or do may be recorded and could be used in evidence okay do you understand that alright now you said you wished to contact your solicitor there's also a number of other rights that you're entitled to and I'll explain those to you so you know exactly where you stand whilst we're here and afterwards um I'll go and get a copy of those rights now but um first of all in relation to your solicitor um do you want us to make a phone book available to you or have you got this persons number. I not yet no I have to talk to somebody. N who would you talk to. I Mm to somebody that know a good solicitor I have solicitor but I don't um don't like him. N Alright so who would you talk to to find this solicitors name. I Mm to my accountant. N Your accountant what's his name. I it's um - pause - Horowitz. N Horowitz alright and do you have his number. I not yet I have that in the office." 12 Federal Agent Moulds told Mrs Ronen, however, that she would not for the moment be permitted to speak to her accountant. The transcript records the following exchanges (page 20 line 197 to page 21 line 217): "N Alright well I I'll advise you now that for for reasons um that I'm probably not allowed to fully explain at this stage um we've request that you not be allowed to contact your accountant. I Okay. N Because of his involvement in this matter that's (wds) specific role. overtalk- I He is not involved. N Well maybe not directly involved I don't know I don't know. I Nothing nothing to do (wds). N I don't know but we we believe that he has records that um. I He hasn't got any records. N Okay well that's that's perhaps for us to find out. I Okay. N However. Background noise - Knocking. N I'm not trying prohibit you from contacting a solicitor so is there any other way we can contact the solicitor. I I don't know yet who which solicitor I'm going to have. N Right well that's that's a decision that only you can make um. I Yeah, I can make but I can't make now I have to talk to somebody. N Okay I did explain to you that. I Yes mm hm. N A few other people are coming into to help er the computer person and the exhibit person so that's those persons just entering the premises now alright well we'll continue with the search however - Stutters - I just want you to understand that you are able at any stage here to contact a solicitor I'm not trying to stop you from doing that if I'm if I'm not er assisting you to do it it's not that I'm trying to stop you so if you wanna get on the phone at any stage you can however I would ask that you not not permitted to contact your accountant at this stage. I Okay." 13 There then followed a passage upon which the Crown place emphasis. Federal Agent Moulds drew Mrs Ronen's attention to the presence of an independent officer, Inspector Tannis. The transcript records the following (page 22 line 222 to end of line 229): "N Perhaps I should also explain now - Stutters -I apologise I haven't Inspector Tannis here is from the New South Wales Police now his role here is as an independent officer he has no knowledge of this um er this investigation he's from an outside agency to the investigation and um he was he is here solely as an independent so that he can record anything of note or anything that you wish us to during the interview er I ask er during the search my apologies I asked if you have any problems in the way that im this search is conducted. I No. N Er perhaps now or as we progress. I No I haven't got any problems. N Please feel free to um bring that to the attention. I I haven't got a problem. N Of Inspector Tannis okay. I But um please keep talking." 14 Federal Agent Moulds then said to Mrs Ronen, "Can you please explain to me what purpose they serve?" To which Mrs Ronen replied "I said to you I can't explain to you. I have to talk to my solicitors." (Page 23 line 236 to line 240): "N Okay fine that's alright. I Okay. N - Stutters - if you wish to do that that's fine. I I have one but now it's too early nobody's in the offices. N Alright we'll we'll continue with the search now and what we'll do is we'll go around each room at a time um and and search the place for the evidence that I've described to you um should you wish at any stage to contact your solicitor um feel free to." 15 After this exchange Mrs Ronen asked if she could ring her eldest son, Nitzan. Federal Agent Moulds sought, and was ultimately granted, permission to allow Mrs Ronen to speak to her son on the telephone. There were throughout the morning at least one and perhaps more unsuccessful attempts by Mrs Ronen to speak to Nitzan but she did not in fact make contact with him until shortly after 9am. 16 Returning to the narrative of events there were next some questions asked of George Segal. These are set out at page 24 lines 249 to line 257. 17 The computer expert Mr Allen Williams then inspected the equipment in the bedroom. Federal Agent Moulds had asked earlier whether it was connected to the businesses; and if it were not, what was it used for? When the same questions were raised by Mr Williams, Mrs Ronen indicated she would talk to her solicitor and in fact declined to answer the second question. 18 Some time was then spent in an examination of the cash register and the computer in Mrs Ronen's bedroom. At about 8.04am Mrs Ronen was advised she was entitled to contact her son Nitzan as she had requested. She was reminded again at that point that she was entitled to legal representation and that she could contact a solicitor at any time (Page 29 lines 315 to 320): "N Time is eight oh four AM the same date Missus Ronen um I explained to you before that there's a um a number of rights that you're entitled to um one of those rights was that you can contact a friend or relative um you've asked if you can contact your son Nitzan is that right. I Mm hm. N Okay well um we'll allow you make that phone call if I just give you the other rights you're entitled to legal representation and you you said you're going to um try and attempt to contact a solicitor at any time you want you can do that um are you a um Australian citizen. I Yes. N Okay alright that's no problems um so what I'll do then um if you'd like to um contact your er son you obviously know the number do you. Aside- TS Just (wds) here. A As soon as she's finished there I'll go on. TS Okay. Background noise - muffled conversation, zipper. Aside- TS -Whispers- do you think we can record that stuff out there do you we can record the cords that are out there - pause - okay. I Maybe he' in Melbourne." 19 The next events of significance during the execution of the warrant was the search of the safe that was located in a dressing room off the bedroom. Mrs Ronen provided Federal Agent Moulds with the keys to the safe and he commenced to examine the area around the safe and ultimately opened the safe with the keys he had been given. 20 Inside the safe were a number of bundles of cash in large denominations each wrapped in paper on which certain matters were written. I shall set out the conversation at that point in its entirety (page 33 line 370 to page 35 line 415): "N First of all I I just described er a small bundle a hundred dollars US currency notes. -Background noise - muffled conversation. I Yes. N Do you know who belongs to those. I (Correct). N They're yours are they. I Yes. N Where did that money come from. I I went overseas and that what is left we - stutters - have to to buy (samples). -Background Noise - Mobile phone rings. N Okay so so the hundred dollar notes are what's left over from overseas. I That's actually from Australian bank. N Okay no problems do you know how much is there. I About one thousand or something. N About one thousand US dollars. I There are from here from the bank when I went away I took the money from the bank and I we buying samples for the factory. N Okay I'm now going to open up the safe er. -Background noise - whispering, muffled conversation. N There's a large amount of cash in here. I Right. N Which I'll bring out and itemise but initially it looks like er fifty and on hundred dollar denominations what can you tell me about this cash. I It's mine. N When you say yours where did it come from. I From the shop that I working with. N Which one. I The clothes shop the the in Commonwealth Street, Foveaux Street. N From the all four. I Yeah. N So it's proceeds from all four shops. I Yes. N Okay and what did you intend doing with this. I Nothing keep it. N Just keep it. I yes. N Okay I um how how would you record this cash with your business records. I I (wd) just. N Er first of all where would you record it. I I don't know. N You don't know. I Nuh. N Who put the cash in here. I Pardon. N Who put the cash in here. I Me. N Just take it out what we'll do we'll take it out we'll put it all down here on the ground video it and then someone can sit through and actually itemise it all - pause - you'll note that there's um each bundle or most bundles appear wrapped in paper or an envelope of some description with some handwriting on it who's handwriting's that. I I don't know. N You don't know who's handwriting. I I've got to talk to my solicitor. N Okay." 21 Mr Segal was then asked questions about the cash amounts which by now had been placed on the floor of the bedroom and video taped. He made a number of comments about where he believed the money had come from. There was an exchange between Mrs Ronen and Mr Segal in which she in effect reminded Mr Segal not to say anything until they had talked to solicitors. (This appears at page 37 lines 434 to 437). 22 The search team then went to Mr Segal's study where, in Mrs Ronen's presence, Mr Segal was asked about the purpose and function of the computer equipment in this room. The following conversation is recorded (page 39 line 469 to page 40 line 495): "I That's er not mine (address book). N Is there anything here I just better clarify for the purpose of our search is there anything here that relates to the Dolina Fashion group of companies. I Nothing. N Or any of you retail outlets. I Nothing to do with it. N It's all George. I Yeah. N Is that right George is that all yours. I Yeah yes. N Is this computer and fax equipment in any way associated with um Missus Ronen's retail companies. G No. N Is there any records on here that relate to her companies. G No I don't (wd) I don't think so. N You don't think so they may be. G Yes yes. N Alright well what we might do is we we still might get um Federal Agent Williams to have a look at that anyway but as long as I know before hand that this i predominantly you're your stuff. G This is what I this is what I. N What do you use this for. G What you have to understand is hat I live here. N Oh course. G And Missus Ronen. N And all I'm trying to do is clarify here so. G Yeah. N You tell me I'm happy I'm not. G Yeah well that's (wds). N So this is all your stuff but what do you use it for your own business. G I don't have (wd) yeah I don't have a business I mean I own my own being alive like you know what I mean." 23 There is one final reference on the first tape to the question of Mrs Ronen's entitlement to a solicitor. This appears at page 41 lines 508 to 511: "N As to to where we concentrate obviously most of the business records for the fashion companies are in Ida's room is that correct - Pause - have we oh sorry before you sit down sorry to do that to you but I'd rather you were present for the search while we're in here did do you wanna try any anytime while we're here you can try Nitzan again. I I don't think I can 'cause he's in Melbourne. N Or your solicitor. I I haven't got solicitors." 24 It will be possible for me to deal with the balance of the material in a relatively abbreviated manner. There are further admissions relied upon by the Crown. They are in tape two at page 16 lines 122 to 125; page 17 lines 128 to page 18 line 130. There is a further discussion with Mrs Ronen in relation to her obtaining a solicitor (Page 19 tape 2, line 140 to page 20 line 143): "J (wds) the front. TS (wds) nice and clear (wds) that's fine. Aside- N So well obviously you don't want to talk to me about this document as well that's fine I'll just go back over what we said do do you want to contact your solicitor now. I I haven't got a solicitor. N Okay is there any way that we can organise a solicitor for you. I No no I don't have one. N Okay and which one's that. I I don't (wds). N Right do you understand that I'm trying to give you the opportunity to contact your solicitor if you wish to. J As far as we can determine they're all fifty dollar notes. -Aside- N Do that I'm not trying to stop you at all. I (wds). N How would you go about doing that. I I would try again to ring my son. N You're going to talk to your son again. I Try again. N Okay time is now nine oh two. -Pause - - Background Noise - muffled conversation. J (wds) Five seven zero five zero (wds) - pause - okay sub bundle number one from that envelope." 25 There is then the telephone conversation with Nitzan at 9.03am (Exhibit "IRB" call 1): "N Hello. I Nitzan. N Mum. I Listen there are ten persons from taxation. N Also here. I And the police in my place. N Also here. I Also here. N Just don't say anything. I Nothing tell me now I don't have a solicitor they've got all the (wd) all the (wd). N We will talk about it later tell them to talk to the solicitor (wd). I The thing is that they want a solicitor they want a solicitor now which solicitor to give them. N Aha. I They opened the safe and took all he money out. N How much money did you have. I What. N How much money did you have. I There are about 150. N Wow. I They also took all the papers (wds) they firstly read whatever. N Doesn't matter will have problems in the beginning we'll pay a big fine and. I I know but there appears the name of I don't want to say in Israel. N Of whom. I Of. N Daniella. I No no they know about everything they know they've got. I They know everything (wds) here is written everything. N Yeah. I In every date in which we transferred now tell me (about) a solicitor. N Aha - Pause - talk to Gil I know. I with Gil. N Yes tell them (about) Gil. I Gil. N Yeah. I Gil isn't sharp there is a need for a very sharp solicitor. N So give them Steve Lewin. I Steve. N Steve Lewin. I Blewin. N Yeah L. I Just a second. -Aside - I I can write down. -Pause- (The legend for this call is Nitzan – "N"; Mrs Ronen – "I"). 26 I should also I think at this stage interrupt the narrative to note that there is an independent objection to the admission of this phone call. I am not however required to deal with that objection at this stage. The call is relevant however in relation to one of the arguments relied on by Mr Richter in the context of the current objection. In this regard, Mr Richter's complaint relates to the fact that the telephone call was, to the knowledge of Mr Moulds, certain to be intercepted. Relevantly for present purposes it will be noted that Nitzan Ronen gave his mother the name and telephone number of a preferred solicitor. This was Mr Steve Lewin of Holding Redlich. 27 Mr Nitzan Ronen also spoke to Federal Agent Moulds at about the same time regarding the identity of this solicitor. 28 Shortly thereafter a solicitor, Mr Werksman, from Holding Redlich rang. He said apparently that there was "nothing he could do" while the search was progressing. 29 Federal Agent Moulds told Mrs Ronen, however, she was free to contact Mr Werksman if she wished to "for any reason at all". She said, (Tape 2, transcript 30, line 246), "No, is okay", and that she "understood everything". 30 Sometime later, at about 10.13am, a solicitor, Mr Justin Osborn, arrived at the apartment. He had come he said in response to a request from Nitzan. As I understand it he was permitted to speak to Mrs Ronen and did so. 31 Thereafter the search progressed to its conclusion. In the early afternoon, as I understand it, Mrs Ronen was arrested and taken from her home. This was some time shortly after 1pm on 7 February 2001. 32 I should pass now to consider the arguments advanced by counsel. 33 Mr Richter's main submission on impropriety is quite a blunt one. In context, he argues this woman was unequivocally and at all times asking for a solicitor of her choice to attend. There was thus, having regard to the requirements of s 28(g) of the Crimes Act 1914 (Cth) an obligation to defer questioning for a reasonable time. Again, in the context that the search was taking place shortly after 7am in the morning on 7 February 2001, Mr Richter argues that there was a requirement for the questioning to be postponed until, at the earliest, the time for usual working hours in professional offices, that is to say until some time after 9am. 34 Mr Richter says that a deferral of questioning did not happen; and that the whole of the circumstances reveal a breach of s 23(g) of the Crimes Act (Cth) with the consequence that under s 138 of the Evidence Act 1995 (NSW) the material must not be admitted. 35 Secondly, Mr Richter says that the material on page 18 should not, in any event, be allowed as Mrs Ronen was already "under arrest" within the meaning of s 23(b)(2) of the Crimes Act (Cth) at the time but she had not been cautioned (s 23F of the Act). 36 Thirdly, he notes that the caution which is set out at(Tape 1 page 19), was defective in a number of respects. These matters taken separately and together he says constitute the obtaining of evidence improperly or in contravention of an Australian law. 37 The combination of those various matters underlies the submission that, pursuant to s 138 of the Evidence Act, the matters in dispute must not be allowed. Mr Richter argues, and indeed there is no argument to the contrary from the Crown, that the onus falls on the Crown, having regard to the matters in sub-s 3 of s 138, to demonstrate, if it can, that the desirability of admitting the evidence outweighs the undesirability of admitting that evidence. 38 There is a second submission from Mr Richter that the evidence should be rejected, indeed must be rejected, under s 137 of the Evidence Act as its probative value is outweighed by the danger of unfair prejudice to the accused, that is in this case to Mrs Ronen. As to this argument, Mr Richter contends that the admissions made by Mrs Ronen on 7 February 2001 are "very equivocal". It is this very quality he says that raises the situation of unfair prejudice. Moreover the same quality demonstrates the lack of probative value. 39 A further argument in support of these contentions advanced by Mr Richter is that the impact the video recording may have in an otherwise relatively colourless trial will be overly significant and prejudicial, in the eyes of the jury. 40 Finally, Mr Richter also made a brief reference to s 135. He suggested that the admission of this evidence will involve, in the context of this trial, a great deal of time wasting involving the proof of matters which could be proved in other ways by the Crown. 41 As to the first argument, the Crown says that a true analysis of all that happened on the morning of 7 February 2001 reveals in essence two things; first, that Mrs Ronen well understood her right to silence and exercised it when she wished to. On other occasions when she chose to, she answered questions. Secondly, that Mrs Ronen was given every opportunity to contact a solicitor but elected not to do so until she had spoken to her son, Nitzan. 42 Initially, the Crown pointed out, Mrs Ronen had wished to speak to her accountant to obtain the name of a solicitor, that is a solicitor different from Mr Baron, the solicitor whose name she already had; but when she was told she could not contact the accountant she then decided to speak to her son to see if he could recommend a "sharper" solicitor. 43 So, the Crown's second point is that Mrs Ronen, in effect, declined to contact a solicitor when given the opportunity to do so; or at least chose to postpone for the time being taking up that opportunity. 44 The Crown, in a general sense, argues that there was no impropriety involved in relation to the obtaining of answers from Mrs Ronen during the execution of the search warrant. Nor, according to the Crown, was there any breach of either s 23 (f) or s 23(g) of the Crimes Act (Cth). 45 Nextly, the Crown argues that, even if it be the fact that any breach did occur, the proper exercise of the discretion contained in s 138, will result in the Court being positively satisfied that it should admit the evidence and that it should not be excluded. 46 As to the s 137 argument, the Crown analysed each of the alleged admissions and suggested they possessed a reasonable degree of probative value either as admissions relevant to the Crown case or to aspects of the likely defence case; and that in no instance was there any real prospect of unfair prejudice to Mrs Ronen in the sense required to be considered in the terms of s 137. 47 Finally, the Crown rejected the proposition that there was any warrant for the rejection of the evidence under s 135 as time wasting and rejected the further argument that Mr Moulds, albeit in a pleasant and friendly manner, had been persistently and unfairly importuning Mrs Ronen during the questioning he had conducted. 48 There are a number of matters which in my view may be laid to rest at the outset. First, there is no warrant in my view for an exercise of discretion in favour of the accused arising out of a consideration of s 135 of the Evidence Act. That section is in the following terms: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time." 49 The only matter specifically raised was the consideration mentioned in s 135(c). I am satisfied, however, that the playing of the video, assuming for the moment it otherwise survives the attacks made upon it, will not in the context of this trial result in any undue waste of time. This trial is likely to be quite lengthy and, as I understand it, there is still an estimate of four months as to the hearing time to be involved. 50 It is in that context that I say the playing of the tape will not constitute an undue waste of time, nor do I consider that the playing of the tape will be misleading or confusing. 51 In general terms, I am unable to accept Mr Richter's submission that the playing of the video will be likely, in some way, to distort or over emphasise the events or conversation it depicts. Indeed, it seems to me that the Crown is perfectly entitled to place before the jury, assuming the evidence is otherwise admissible and ought not for any other reason to be rejected, the statements made by Mrs Ronen at the time the search warrant was executed. After all, the Crown case places Mrs Ronen at the centre of the conspiracy; it categorises the cash register and the computers in the department of tools in the conspiracy. 52 In addition, the apportionment of the cash moneys from the four retail outlets and the manner in which those moneys may have been treated by Mrs Ronen are important matters for an understanding of the Crown case and may as well be very important in understanding and testing the strength of any possible defence case. 53 Mr Richter argued, as I mentioned earlier, that the playing of the video may give a "technicolour" aspect to an otherwise drab and colourless case. But, in my view, it will do no more, if it is otherwise appropriate to be admitted, than portray in a realistic and non emotive way the events which occurred on the morning of 7 February 2001. 54 Sometimes, as anybody who is familiar with a criminal trial knows, videos or parts of videos or photographs are excluded because of the prejudicial impact they may have on a jury. But I am not persuaded that there is anything in the video which I have seen which would give rise for that reason to a justifiable exclusion of it. So that, in terms of s 135, there is nothing in the video of the conversations, leaving aside for the moment the aspect of unfair prejudice, that give me cause me to exercise my discretion to reject the evidence. 55 I hasten to add that the aspect of unfair prejudice mentioned in s 135 is relevantly taken up in s 137. This I will have to consider in due course. 56 Secondly, it is best, I think, at the outset to deal with the proposition that the admissions or statements made by Mrs Ronen during the search are not of probative value. Mr Richter branded them, it will be recalled, as "equivocal" or "pretty equivocal". 57 I will turn now to Exhibit "IRA" to briefly identify and comment on these matters. I shall not necessarily deal with every matter, but endeavour to give the flavour arising from most of them. 58 First of all, there are statements made at page 18 of the first tape about the cash register. Mrs Ronen said that it was "nothing to do with the business premises", "nothing to do with Dolina at all". She described herself, in relation to the equipment, to be "just working with them". 59 These statements to my mind are clearly of probative value in a number of ways. Firstly, the concession that the equipment has nothing do with Dolina is capable of being a not unimportant matter in the event that the defence case is that the moneys were being kept and appropriated and, indeed, distributed by Mrs Ronen in satisfaction of accounting responsibilities between Dolina and the retail entities. 60 Second, it is possible - I put it no higher at this stage - that the first statement, and perhaps the third, may constitute a lie of a material character evidencing consciousness of guilt. 61 May I interrupt at this stage to say that nothing in this decision is intended to convey that I have reached a firm conclusion on that issue. I do not think it is appropriate at this early stage of pre-trial matters to come to any final conclusion about that matter or about the directions which might be appropriately given, that is, on the issue of lies amounting to consciousness of guilt, assuming that is what they are. 62 The second extract is at pages 19 and 20 where there is a reference to the noninvolvement of the accountant and the claim that "he hasn't got any records". Clearly, these statements, whether they are true or untrue, have a similar probative value to the matters I have identified in relation to the first extract. 63 At pages 32 to 35 and pages 36 to 37 on the first tape, there are conversations both with Mrs Ronen and Mrs Segal about the cash in the safe. Initially, Mrs Ronen as to the cash, said "It's mine" and that it was "the proceeds from all four shops". 64 As to her intentions in relation to the money, she said it was to "just keep it". She said, presumably in relation to the money placed on the bedroom floor, when she was asked where she would record it, "I don't know". This was said notwithstanding that detailed bookkeeping systems were later located in the apartment (see tape 3 page 7 and tape 3 at page 19). 65 Mrs Ronen also said at the same pages I have indicated that it was she who had put the cash in the safe. Again, it seemed to me that all these various answers do have a probative value. There will always be some debate, of course, as to the meaning to be given to questions and answers, but I must say, for my part, I do not find this material equivocal. 66 Its probative value clearly lies in the fact that it demonstrates the source of the money, the attitude of Mrs Ronen to its ownership and her appropriation of it. It may also contain a lie, evidencing consciousness of guilt, but again, I make it clear that I am not ruling to that effect finally at this stage. 67 The next extract appears at tape 1 pages 39 and 40. There are statements made both by Mrs Ronen and Mr Segal in her presence. These essentially assert that the computer equipment in Mr Segal's study had nothing to do with the Dolina fashion group of companies. 68 Mr Segal said that "nothing in the study had anything to do with the Dolina group". Later, the hard drive of this computer revealed spreadsheets purporting to deal with the GST component of sales from the retail outlets. 69 In my view, these statements are plainly of probative value and it needs to be said that they have a probative value beyond the spreadsheets themselves. 70 The next extract relates to tape 2. There are admissions at pages 16 and 17 of page 2. For example, the last mentioned page records that, in relation to the cash in the safe, Mrs Ronen, having repeated that it came from all the four shops, said she didn't record it; and that she regarded it as her money and that she was entitled to spend it or do with it as she liked. 71 Again, this seems to me to possess the same type of probative value I have identified earlier. 72 I conclude for the reasons I have briefly stated that all the various statements identified by me and made by Mrs Ronen, or by Mr Segal in her presence, and apparently adopted by her, are, first, statements which possess a reasonable degree of probative value. Secondly, they are not equivocal in my opinion, or at least not so equivocal as to be deprived of that degree of probative value I have endeavored to identify. 73 Thirdly, they are important, as constituting admissions relevant to the Crown case, or relevant to refuting a defence case, based on accounting responsibilities or duties between the Dolina group and the retail entities. 74 Fourthly, they may, in some instances, be lies capable of constituting admissions as to consciousness of guilt. 75 With those matters out of the way, I turn now to the principal attack made on the statements. This is the claim that the evidence was obtained improperly or in contravention of an Australian law. 76 It will be apparent, from the brief recital of the arguments advanced on behalf of Mrs Ronen, that the principal attack requires an examination of s 23G of the Crimes Act (Cth). This section deals with the important right of an arrested person to communicate with a friend, relative and legal practitioner. The section is in the following terms: " Right to communicate with friend, relative and legal practitioner 23G (1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may: (a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and (b) communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning (2) Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must: (a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and (b) in the case of a communication with a legal practitioner - allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard. (3) Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must: (a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and (b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning." 77 The expression in that section "if a person is under arrest for a commonwealth offence" is given a wide and extended meaning by s 23B(2) of the Act. In shorthand terms, there may arise a situation where a person is under arrest or under "deemed arrest". 78 The subsection is in the following terms: "(2) A person is a protected suspect if: (a) the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and (b) the person has not been arrested for the offence; and (c) one or more of the following applies in relation to the person: (i) the official believes that there is sufficient evidence to establish that the person has committed the offence; (ii) the official would not allow the person to leave if the person wished to do so; (iii) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and (d) none of the following applies in relation to the person: (i) the official is performing functions in relation to persons or goods entering Australia; and the official does not believe that the person has committed a Commonwealth offence (ii) the official is performing functions in relation to persons or goods leaving Australia, and the official does not believe that the person has committed a Commonwealth offence; (iii) the official is exercising a power under a law of the Commonwealth to detain and search the person; (iv) the official is exercising a power under a law of the Commonwealth to require the person to provide information or to answer questions; and (e) the person has not ceased to be a suspect under subsection (4)." 79 For the purposes of the argument on this point, the Crown conceded that s 23G was engaged at the point in time when, as is recorded at tape 1 page 19, line 175, Federal Agent Moulds gave a caution to Mrs Ronen. This concession was given, as I understand it, with the agreement of the parties so as to obviate the need to call witnesses, to conduct cross-examination, et cetera, and so as to save unnecessary time and expense. It was a sensible concession, but, as sometimes happens, it has caused problems. 80 The principal difficulty has been, as the submissions unfolded, Mr Richter was constrained to submit that s 23G may have been engaged, in fact, earlier than the conceded point of time. This, if it be accepted, has ramifications for the admissions relied upon by the Crown and which appear halfway down and at the foot of page 18 on tape 1. 81 I propose to deal with the issues that have arisen in the following manner. I will address, first, the issue of whether s 23G was engaged prior to the point of time involved in the Crown concession. 82 Secondly, I will address the brief argument on the form of the caution administered. 83 Thirdly, I will determine whether there has been impropriety or a contravention of s 23G of the Crimes Act 1914 (Cth). In that context, I will determine whether any part of the behaviour of Federal Agent Moulds may be described as offending against the principles in R v Clarke (1997) 97 A Crim R 414 at 419 and R v Plevac (1995) 84 A Crim R 570 at 580. 84 Fourthly, I will, if satisfied that there is, on any view of it, a breach of section 23G, or, for that matter, section 23F, (the section dealing with cautioning the person under arrest), or any other impropriety, examine the exclusionary requirements of s 138 of the Evidence Act and the discretion to admit evidence permitted by that section. I will then determine whether, in all the circumstances, the discretion should be exercised to admit some or all of the evidence otherwise required to be excluded. 85 Fifthly, I will consider the terms of s 137 of the Evidence Act and determine whether a consideration of the matters in that section demands the rejection of the evidence or any of it. 86 Sixthly, I will consider, albeit briefly, whether the discretion to refuse to admit admissions under s 90 of the Evidence Act has been enlivened. No submissions were, in fact, made by either counsel in this regard. But since the evidence sought to be admitted is urged, at least in part, to constitute a series of admissions made by Mrs Ronen, I consider that I am obliged to reflect upon the terms of that section as well as the requirements of s 138. 87 Finally, if the evidence or any of it still stands, I will consider whether I should exclude any parts of it for any other reason. 88 Question 1: Was Mrs Ronen under deemed arrest prior to the events occurring as described at page 19 of the transcript of tape 1? 89 I am not prepared to find that Mrs Ronen was under deemed arrest prior to the giving of the caution on page 19 of tape 1. 90 The parties have chosen to present the issue before me without live witnesses and without cross-examination. While, from an uninformed point of view, I suspect and, indeed, perhaps strongly suspect, that Mrs Ronen would not have been allowed to leave the apartment at any time after 7.11am on 7 February 2001 had she wished to do so, this is, in truth, speculation or guess work on my part. There is no evidence as to Federal Agent Moulds' state of mind, or any evidence as to Mrs Ronen's state of mind and I am not prepared, in the absence of evidence, to draw the inferences required to establish the matters in sub-s 2(a) or (b) of s 23B. 91 I am, if I may say so, positively not satisfied as to the existence of the factual situation required under s 2(c) of s 23B. It follows that I am satisfied, having regard to the Crown concession, that s 23G was engaged at the time that Federal Agent Moulds gave the caution as appears on page 19. That concession, having regard to the terms of s 23F, was properly made. 92 In the event, however, that I may be wrong, in relation to the need for Federal Agent Moulds to have given a caution earlier than the point of time he in fact did, I will treat the statement made by Mrs Ronen on tape 1 page 18 as material that should be properly considered under s 138 and s 90 of the Evidence Act. 93 Question 2: Was the form of the caution adequate? Section 23F is in the following terms: " Cautioning persons who are under arrest or protected suspects (1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence. (2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person. (3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official." 94 What Federal Agent Moulds said was this - I have already set it out in another form, but if I can focus upon the part of the passage appearing at page 19: "I best caution you that you are not obliged to say anything or do anything unless you wish to do so, as anything you do say or do may be recorded and could be used in evidence." 95 Although Mr Richter made no point of it, the use of the expression "I best caution you" does not suggest to me that it is precisely in accordance with what one would expect the opening words of the caution to be, but perhaps nothing turns on that. I rather treat it as a further indication of the rather polite manner adopted by Mr Moulds during the entirety of the search toward Mrs Ronen. 96 Now, Mr Richter has said that Mr Moulds should have told Mrs Ronen that "anything you say or do will be recorded and may be used in evidence". The section, of course, requires, as appears from the text I have set out above, that, before starting to question the person, the investigating official must caution the person that he or she does not have to say or do anything, but that anything that the person does say or do may be used in evidence. 97 Despite its shortcomings, it does seem to me that the caution administered by Federal Agent Moulds satisfactorily answered the matters in the section. Insofar as he said that the answers or actions may be recorded, I think it would have been perfectly clear to Mrs Ronen that they, in fact, were being recorded. 98 As to the expression "could be used in evidence", it does not seem to me that, in substance, this is a failure to comply with the statutory requirement. Rather, it appears to me that what was conveyed by Federal Agent Moulds conveyed the essence or substance of the caution that is required under s 23F. 99 The next question is: 3. Was there a contravention of s 23G of the Crimes Act 1914 (Cth) ? 100 This is perhaps the principal matter that has been argued and it needs to be examined with care. 101 I have given consideration to all the submissions made both by Mr Richter and the Crown and I have read the transcripts carefully and I have watched and re-watched the video on a number of occasions. 102 The issue as to what really happened, I think, may be tested by precise appreciation of the events discernible on the tape and appearing in the transcript between pages 19 to 22. What do they show? They show, of course, that, immediately prior to the caution, Mrs Ronen had said, at the bottom of page 18, "I have to talk to my solicitor." 103 Mr Moulds agreed with this statement appearing to treat it as a request by Mrs Ronen to speak to a solicitor and he said, "Okay, no problems at all" and "Who would that be?" She said, "I don't know yet." He said that he was more than happy to make those arrangements. He asked: "How would you contact a solicitor?" "Not yet", she said, "I don't know if he's here". Federal Agent Moulds asked, "Do you have a person in mind?" She said, "Not actually, no". 104 After giving the caution, Federal Agent Moulds said, "Now, you said you wished to contact your solicitor." He then told her there were a number of rights he had to explain to her and he would get a copy of those and give them to her. He then said, "First of all, in relation to your solicitor, do you want us to make a phone book available to you or have you got this person's number?" She said, "Not yet, no. I have to talk to somebody that know a good solicitor. I have solicitor, but I don't like him." She was then asked who she wanted to talk to to find the name of this other solicitor and she said, "My accountant." 105 This then led to a discussion between herself and Federal Agent Moulds and the consequence of that was, as appears from page 20, that Federal Agent Moulds told her that, for certain reasons, he was obliged to request that she not be allowed to contact her accountant. 106 Federal Agent Moulds said, "However, I am not trying to prohibit you from contacting a solicitor, so is there any other way we can contact a solicitor?" Mrs Ronen said, "I don't know yet who or which solicitor I am going to have." He said, "Well, that's the decision that only you can make." She said, "I can't make now. I have to talk to somebody." He said, "I want you to understand that you are able at any stage here to contact a solicitor. I am not trying to stop you from doing that. I am not assisting you to do it. It's not that I'm trying to stop you, so if you want to get on the phone at any stage you can." 107 Then Federal Agent Moulds referred to the presence of the independent officer and asked Mrs Ronen if she had any problems in the way that the search was being conducted and she said that she did not. She said, "I haven't got any problems." 108 She then said to Federal Agent Moulds, "Please keep talking." And thus it was that he did keep talking and asked the question whether she could explain what purpose the computer and cash register in the bedroom had, to which she replied, "I've said to you I can't explain to you. I have to talk to my solicitors." And he said, "Fine, okay, that's all right." And he then desisted from that line of inquiry. 109 She then said - and I make this comment that I was initially concerned about this passage - "I have one, but now it's too early. Nobody's in the office." (Page 23 line 39.) Mr Moulds said, "However, well, we'll continue with the search. Should you wish at any stage to contact your solicitor feel free to." And then the conversation took something of an about turn because Mrs Ronen indicated that she wanted to speak to one of her sons. This was her eldest son, Nitzan. 110 Thereafter in the transcript, on a number of occasions, when questions were asked of Mrs Ronen she indicated that she "would talk to her solicitor". For example, at page 26 of the first tape at line 280, the question was asked, "Its nothing to do with the business and what do you mainly use that for please?" She replied "I will talk to my solicitor." 111 It seems that Federal Agent Moulds' response to that expression or similar expressions was to immediately desist from asking any questions in relation to it. 112 Some idea of the true situation I think is to be gained from page 41 on tape 1 where, at the top of that page, Federal Agent Moulds asks Mrs Ronen whether she wants to try Nitzan again and she replies, "I don't think I can because he's in Melbourne". "Or your solicitor?" Mr Moulds asked and she said "I haven't got solicitors". 113 At tape 2, pages 19 to 20, where Mrs Ronen in the middle of the page, having been asked a question about the cash found in the safe said, "I have to talk to my solicitor", and then Mr Moulds said to her: "N Well obviously you don't want to talk to me about this document as well, that's fine, I'll just go back over what we said. Do you want to contact your solicitor now? I I haven't got solicitor. N Okay, is there any way that we can organise a solicitor for you? I No, no, I don't have one. N Right do you you understand that I'm trying to give you the opportunity to contact your solicitor if you wish to. N Do that, I'm not trying to stop you at all. N How would you go about doing that? I I would try again to ring my son." 114 This part of the conversation occurred in fact only a few minutes before, as I understand it, Mrs Ronen in fact spoke to her son on the telephone. 115 My conclusions about the situation revealed by the conversation I have endeavoured to analyse briefly by reference to a number of portions of the transcript are these: it is clear that Mrs Ronen had, very early in the piece, referred to the fact that she had a solicitor, that was Mr Gil Baron, but she decided not to call him. In the later phone call with her son Nitzan she labelled Mr Baron as, in effect, not "sharp" enough. I took this to mean either not experienced enough or not up to the task in relation to matters of the kind that were the subject of the search warrant. 116 But the position she took both at the beginning of the search after the caution was administered and throughout the search seemed to be one entirely of her own making. It left her, it is true, without a legal representative in attendance upon her until after she had spoken to her son but this was not because of any failure on the part of Federal Agent Moulds to give her the requisite opportunity. Nor was it because of any failure on his part, as I see the facts, to defer questioning when he otherwise should have done so. 117 It is important to note, I think, that Mrs Ronen clearly understood that she had a right to silence. In my view she chose a shorthand method of exercising that right by saying on a number of occasions when she decided not to answer a question, "I talk to my solicitors", or, "I need to talk to my solicitor". 118 These statements, as I will explain, in their context were not a response to the rights explained by Mr Mould. They were not a request for the immediate opportunity to contact a solicitor. They were not a request for a deferral of questioning at all. It seemed to me that Mrs Ronen was well aware, if the questions moved into an area that she regarded as inappropriate or dangerous in any way, that she was entitled to decide that she would not answer those questions and indicate by reference to "a solicitor" that she did not choose to do so. 119 The expression "I need to talk to my solicitor" was not in fact a request for a deferral of questioning but rather a claim to a right to silence. Federal Agent Moulds in fact treated the statement as a request to obtain a solicitor on a number of occasions until at least it became apparent that Mrs Ronen was content to continue, provided that at some later time she could speak to her son when he became available and then nominate a solicitor; and provided further that her right to silence would be respected in the meantime whenever she claimed to take advantage of it. 120 Throughout the search Mrs Ronen was, it seems to me, quite competent in looking after her own interests and, as I have said, when it suited her she elected not to answer questions, using the formula of words I have nominated. On other occasions she chose to answer questions. 121 It is not inappropriate, I think, to also look at the consequence of any alleged failure to comply with s 23G. What would have happened were there a solicitor present on the numerous opportunities that Federal Agent Moulds gave to Mrs Ronen to obtain the services of a solicitor? In my view it is likely that very little, if any difference, would have resulted in her responses. I think it is fair, as Mr Richter says, to look at the context of what happened. But I do not think that Mrs Ronen was a timid, frightened or overawed woman experiencing a situation in a fearful context. Far from it really. I can well accept it was a distressing situation for her and hardly a pleasant experience but she appeared to me to be very much in command of the situation, more so perhaps than was Mr Moulds who seemed to be quite timid and cautious by comparison with Mrs Ronen. 122 I do not think that Mr Moulds behaviour can justifiably be criticised. He was courteous and polite throughout. He deferred time and time again when Mrs Ronen claimed to exercise her right to silence. I do not think there could be any suggestion that his questioning in any way was inappropriate, or that it was overly persistent or that he in any way oppressed or importuned unfairly or at all either Mrs Ronen or Mr Segal. Nor do I think that the fact that the telephone was the subject of a lawful interception in the particular circumstances that existed here is a cause for any justifiable criticism of Federal Agent Moulds. I shall briefly state why this is so. 123 First, the desire to call Nitzan Ronen was entirely that of Mrs Ronen. Secondly, the decision to call him was her own and I do not think that she was, on anything that I have seen or read, enticed or encouraged to do so. She was not taken advantage of in relation to her decision to speak to her son on the telephone, notwithstanding that that telephone call was intercepted. I can well imagine in some circumstances such a situation might lead to serious criticism but I am not convinced any such criticism can be appropriately levelled at Federal Agent Moulds in the particular circumstances of this matter. 124 I conclude that there was no breach of s 23G throughout the conduct of the search. The only hint of such a breach occurs at page 23, to which I have made specific reference. This passage did give me some cause for concern when I first read it, that is at lines 235 to 240, but I think when read in context of all the material between pages 19 and 24, and especially read in the context of the whole of the transcript material to which I have made reference, I do not consider a breach occurred at that point. 125 Accordingly I answer the question posed as question three in the negative. 126 I then turn to question four which is in the following terms: "4. If there was a contravention, contrary to the findings I have made, of section 23F or G of the Commonwealth Crimes Act is it appropriate nonetheless to allow the evidence?" 127 This question poses an examination of s 138 of the Evidence Act. It presupposes that I may be in error in relation to the answer I have given in relation to question 3. Section 138 is in the following terms: - " 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 128 In essence the impropriety and the contravention of Australian law alleged on behalf of Mrs Ronen are one and the same matters. I have detailed them earlier but I will in general terms repeat them. They are these: (i) a failure to caution at the earliest moment of the search; (ii) defectively used words in the caution; and (iii) a breach or breaches of s 23G, that is a failure to defer questioning for a reasonable time to allow Mrs Ronen to arrange a solicitor of her choice to attend during the search process and in the questioning during the search. 129 The nature of the discretion contained in s 138 of the Evidence Act is authoritatively discussed in the judgment of Howie J in R v Sophear Em [2003] NSWCCA 374 at 71 to 78. Ipp JA and Hulme J agreed with Howie J. The following appears at paras 74 and 75: "74. The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused. 75. In the joint judgment in Swaffield at [52] their Honours discuss the four bases at common law for rejecting evidence of admissions. The second of those was the discretion to reject evidence because its admission would be unfair to the accused, a discretion now found in s 90. The third was the public policy discretion, now found in s 138. Their Honours said: 'The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntary and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.' In Foster v The Queen (1993) 67 ALJR 550 at 540 it was stated that, although the unfairness discretion and the public policy discretion may overlap, their focus is different: in the former the focus is on the effect of the unlawful conduct on the particular accused and in the latter the focus is on "large matters of public policy". 130 The starting point in relation to a consideration of s 138 is a recognition that in many cases, perhaps indeed in most cases, s 138 will require, where there has been evidence obtained improperly or in contravention of an Australian law, the rejection of that evidence. The terms of the section point firmly in such a direction. 131 The public policy considerations in s 138 as described in Howie J's decision, emanating from the considerations in The Queen v Swaffield (1998) 192 CLR 159 are to be found first in the nature of the discretion as it is stated in s 138, that is the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. Secondly, they are reflected in the range of matters which the Court has to take into account in sub-s 3 of s 138. 132 Those matters and their significance in relation to the present asserted contraventions, if they have occurred contrary to my findings, require a series of factual findings before a proper discretionary exercise can be undertaken. I will deal with each matter separately. (a) is the question of the probative value of the evidence. I have earlier indicated that in my view there is probative value in the evidence of the kind and category earlier identified. (b) is the importance of the evidence in the proceedings. It must be conceded that the evidence is not stated to be critical to the Crown case and indeed it is not. But it nevertheless remains reasonably important, in my view. This is again for the reasons that I have identified when earlier attempting to assess its probative value. (c) is the nature of the relevant offence. As I have said in an earlier judgment during this series of preliminary hearings, the nature of the offences charged is undoubtedly serious and if proved may well involve significant criminality. (d) and (e) require assessments of the gravity of the impropriety or contravention; and whether it or they may be described as "deliberate" or "reckless". 133 For all the reasons I have earlier indicated it is my view if there were a contravention or contraventions at any time, whether it be in relation to the choice of the moment when the caution should have been given or in relation to whether there was a need at any stage to defer questioning for a time, it or they may appropriately be described as technical contraventions and certainly not deliberate and in my view nor were they reckless. 134 I have already said something about the behaviour of Federal Agent Moulds and I need not repeat it here. 135 It is important I think to note that what happened on 7 February 2001 during the search was really brought about by the conduct of Mrs Ronen and I do not see her, as I have already said, as a timid, overawed person at the mercy of federal agents. Rather I think she was attempting to bring about a situation that suited her own position and at the same time protect herself if any questions were asked that she did not wish to answer. She appeared well aware of her right to silence even before the caution was given. She gave the appearance of being well able to protect her rights without any difficulty at all. It is against that background that I make the assessment that if there were any contraventions they were, to repeat the phrase I have used, technical ones only. 136 As to (f), I have not been able to see from my brief examination of the international covenant on civil and political rights that the contraventions were contrary to that covenant. 137 As to (g), it must be accepted I think that it is unlikely any proceedings will be taken to discipline Mr Moulds in relation to his actions. That aspect of the sub-section operates in favour of the discretion being exercised in the favour of the accused. 138 As to the final matter, (h), that seems to me to stand in a relatively neutral position in the present enquiry I am making as to the appropriate exercise of discretion. 139 Having considered the facts I have found and having considered the public policy considerations at the core of s 138, it is my view, in the exercise of my discretion, that the desirability of admitting the evidence does outweigh the undesirability, assuming as I have done that the matters relied on by Mr Richter were, contrary to my findings, instances of impropriety or contraventions of Australian law. 140 I turn then to question five: "Does s 90 require the Court to refuse to admit the evidence on the basis that it would be unfair to Mrs Ronen to use the evidence having regard to the circumstances in which the admissions were made?" 141 Section 90 confers a discretion on the trial Judge to reject admissions where to admit those admissions would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration as to whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated. (See Swaffield; and Sophear Em at 104-107) 142 As Howie J's decision in Sophear Em indicates, although there is no longer in New South Wales a common law discretion to reject admissions on the basis of unfairness, there is no relevant distinction between the scope and purpose of a discretion to reject evidence of an admission under s 90 and that which existed under the common law stated in Swaffield. 143 In my view, having regard to the factual findings I have earlier made and the circumstances in which Mrs Ronen made any of her statements to Mr Moulds during the execution of the warrant, I am satisfied there is no basis on which the admissions should be rejected under s 90 of the Evidence Act. Mrs Ronen was appropriately cautioned very early in the course of the search. She was plainly aware of her right to silence. She exercised it when she thought it appropriate to do so and did not exercise it when she chose not to. 144 Federal Agent Moulds acted with courtesy and restraint on each occasion when Mrs Ronen exercised her right to silence. 145 There was no importuning of either Mrs Ronen or Mr Segal. In short, there seemed to me no basis on which it might be said that it would be unfair for the prosecution to use the evidence against the accused. 146 Mrs Ronen was given ample and repeated opportunity to obtain the services of a solicitor if she wanted to. It was her decision, adhered to by her throughout the search, to postpone obtaining the use of a solicitor until she had spoken to her son. This was so even though she had a solicitor she might have been able to contact on short notice. She did not, in my view of the facts, seek to have the questioning deferred, but was content for it to continue provided her right to silence was respected, whenever she chose to exercise it. 147 Question 6: Is the evidence required to be rejected under section 137? 148 Section 137 is in the following terms: " 137 Exclusion of prejudicial evidence in criminal proceedings " In a criminal proceeding the Court must refuse to permit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 149 Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them (Papakosmas v The Queen (1999) 196 CLR 297; R v Serratore (1999) 48 NSWLR 101; R v BD (1997) 94 A Crim R 131). 150 The section may also have application where the jury might give more weight to a particular piece of evidence than it deserves, but that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to overreact to it in an illogical or irrational manner (see Papakosmas at 92), or to rely upon it on a basis that was logically unconnected to the issues in the case (R v Taylor [2003] NSWCCA 194 at para 93). 151 In exercising the power contained in the section, the trial judge should have regard to the scope of warnings or directions which might be given to the jury to ensure that such prejudice does not arise. 152 What then is the position in the present matter? The evidence plainly has a reasonably high degree of probative value. I have earlier examined that in some detail and determined it to be so. I have given my reasons in relation to the individual admissions in issue. That remains my view for the purposes of the considerations arising under s 137. 153 Moreover, I do not think that there is any danger or, indeed, likelihood, that the jury may misuse the evidence or consider it in some improper way. I am not satisfied that any real prospect of that occurring has been identified in the arguments before me. 154 It needs to be borne in mind as well that there will be, in the course of the trial, scope for considerations as to any directions that might be necessary to place before the jury if that is thought desirable and to reinforce the manner in which this particular evidence may be used by them. 155 It needs also to be borne in mind that, merely because particular evidence may tend to show that the accused has committed the offence with which he or she is charged, that that is not the type of prejudice with which s 137 is concerned (see again Papakosmas at para 91, Festa v The Queen (2001) 208 CLR 593, and the R v GK (2001) 53 NSWLR 317). 156 That then leads me to the final matter. 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. 157 I shall nominate the passages and they will be excluded unless Mrs Ronen wishes them to remain in the transcript for any reason. Those passages are at page 26 of tape 1 from line 275 to 281; page 35 of tape 1 from line 411 to 415; page 14 of tape 2 from line 116 to the commencement of 117; page 18 of tape 2 from line 130 to 133; page 19 of tape 2 from line 137 to 139. 158 Now there may be other matters after some discussion between the parties. There may be agreement that it should be excluded. I do not wish anything that I have said to deter the parties from having further discussions about the final form of the tape and transcript placed before the jury. ********** 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. 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