Regina v Ronen & Ors [2004] NSWSC 1296

New South Wales Supreme Court

CITATION : Regina v Ronen & Ors [2004] NSWSC 1296 HEARING DATE(S) : JUDGMENT DATE : 9 September 2004

JUDGMENT OF : Whealy J at 1 DECISION : I refuse the application to discharge the jury.

CATCHWORDS : Application to discharge jury - alleged musconduct of prosecutor - Evidence - ss 37 and 38 of Evidence Act 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 : Ms Penny Musgrave - Cth DPP Watsons Soliciors - 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

THURSDAY 9 September 2004

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

JUDGMENT - On application to discharge jury. See page 4658 of transcript

1 HIS HONOUR: There are two matters I have to deal with. I will deal with the second one first. That is Mr Richter's application to discharge the jury. 2 For my part, I have endeavoured, as is the task of a trial Judge, to sit mute and watch and listen to what is occurring in the Courtroom. In my view, the submission of Mr Richter is not one that I am able to accept in relation to the conduct of the Crown. 3 I can well understand that in the tense atmosphere that often exists in a trial, and particularly in a situation where a witness called by the Crown occupies the position that Mr Geller does, that difficulties can arise. They have indeed arisen over the last three days. I have endeavoured, as far as I can, to try and steer a path of fairness between the position of the Crown and the defence in this difficult situation. 4 No application has as yet been made under s 38 and for my part I have endeavoured, so far as possible, where a similar issue has arisen with other witnesses, for example Miss Lawler, to try, as I say, to steer a neutral path so that matters can be put to a witness without the witness appearing to be treated as an unfavourable witness. 5 The halfway house, however, in the case of Mr Geller has been the avowed intention of the Crown to ask a number of leading questions; and I have indicated my general views on that issue in previous rulings and indications I have made, again over the last three days, with specific reference to Mr Geller. 6 It is true, I think, to say that the Crown has been permitted to ask a number of leading questions but from where I sit, it is my clear view - and I regret that it is not one that is shared by Mr Richter - my view, however, is that the Crown Prosecutor has put each matter that he has felt obliged to put to the witness, Mr Geller, with courtesy, with restraint and without unfairness. I do not consider that he has, without leave, crossed the line into cross-examination. I have not seen any evidence of unfairness or of any improper dealing with the jury or of any dealing with the jury. I certainly saw nothing of anything to suggest that the Crown was in any way "eye-balling the jury", to use the colourful expression that was addressed to me. 7 One of my tasks as a trial Judge is to take careful note of what happens in the Courtroom. I have taken particular note of the witness, his demeanour in the witness box, the questions asked by the Crown, the method of objection by the defence, the response of the jury, and overall it seems to me that nothing untoward of any kind has taken place since Mr Geller came into the witness box. I reject any suggestion, therefore, that either by the questioning or the demeanour of the Prosecutor anything has occurred in this trial that merits a discharge. 8 Secondly, I do not believe that the Crown has made any allegation of fraud against this witness and from my careful attention to the questions that have been asked and the answers that have been given, there has been no mention of tax evasion in any question, although I do understand that the Crown wants to put a question to the witness at the present time to suggest that the appropriate adjustments made in 1998 as between On Fovo and Ronen Young Fashions created "a net tax saving" for those entities, either of a certain specific amount or at least of a relatively substantial amount. That, it seems to me, is a far cry from the suggestion of tax evasion. 9 I do not detect, therefore, in any of the questions that have been put, the "pigeonholing" of this witness as a fraudulent person in such a way as would either contravene the appropriate and proper function of a Crown Prosecutor, nor the consequent labelling by the jury of the witness in that way. I agree with the Crown however that the issue of the reasons for the allocations and adjustments is an issue opened up by the detailed cross-examination of Ms Bortolin and others. 10 Of course, at the end of the day, the jury will have to consider its attitude to Mr Geller as a witness and no doubt will do that aided and assisted by all the documents in the case. They will as well have before them the submissions of all counsel for defence and they will have the submissions of the Crown Prosecutor. They will also have my summing-up, and it would be my intention in summing-up to make it clear that the evaluation of Mr Geller as a witness, as with every other witness in the case, is a matter entirely for the jury and I do not think that anything that I have seen happening since Mr Geller came into the witness box as poisoning the jury's approach to their fundamental task of deciding the facts of the case, including their evaluation of witnesses; nor do I see any suggestion, in looking at the jury as they have been listening carefully to the evidence, that they in any way have been inappropriately affected by the questioning. 11 It is true that the central allegation here on the Crown case is a cash skim in the retail outlets at the point of sale, or, to be more precise, the existence an agreement to that effect. But it is equally true that the defence case has very largely focused and centred on the allocations that are presently the subject of the questions being put to Mr Geller. The defence case, of course, does not alone focus on those allegations but it is obviously an important part of the defence case and, in my view, the Crown has been entitled to adopt the approach it has. 12 Mr Richter also made the point that the Crown has chosen to ignore one piece of evidence, namely the cheque butts, but the evaluation of that aspect of the case again, it seems to me, is very much a matter for the jury and I don't think that really bears on the present application to discharge at all. 13 In any event, as I have said to Mr Rosenbaum in relation to yesterday's arguments, the defence will have the opportunity of cross-examining the witness and there may be many matters that they will put, as is often the case, that the extent to which come adverse impressions may have been created by Mr Geller will be eased by that cross-examination leaving, as I have said more than once, the jury with the ultimate duty of evaluating the facts of the trial. 14 This is not a situation where there is any need for me to give a direction. As I said to Mr Hill earlier this morning, it may be that if at the end of any part of the cross-examination there is any need to say anything about any suggestion that there is some other wrongdoing lurking in the background of the questions that are put, well, it seems to me that a stern direction from the trial Judge would prevent the jury from perceiving that as the issue in the trial. But I do not think that there is any call for any such direction at this point of time, at least certainly not in relation to the application to discharge the jury that has been made. For all those reasons I do not intend to discharge the jury and I refuse that application. 15 In relation to the question that has been asked, I think that it is sufficient for me to say I have been through all the arguments with all counsel and I think that the document under discussion, the "1998 On Fovo and Mrs Ida Ronen" document, may be placed before the witness. He may be invited to look at it and he may be asked questions which, in substance, raise the possibility with him that one aspect of the entries that were made in the 1998 year was to bring about a net tax saving as between or in relation to those two entities. I think that that is a relevant matter and, provided that some care is taken with the form of the questions, I don't see any prejudicial aspect to it and certainly no aspect of unfair prejudice. I will, however, keep a close eye on the matter; and if anybody thinks that a direction should be given at any particular time, I trust that that will be raised with me.