New South Wales Court of Criminal Appeal CITATION : Regina v Ida Ronen; Regina v Nitzan Ronen; Regina v Izhar Ronen [2004] NSWCCA 189 HEARING DATE(S) : Thursday 29 April 2004 JUDGMENT DATE : 17 June 2004 JUDGMENT OF : Grove J at 1; Simpson J at 15; Howie J at 24 DECISION : STAY REFUSED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - PENDING INTERLOCUTORY APPEAL - CERTIFICATE BY JUDGE THAT SUITABLE FOR APPEAL - LENGTHY PRE-TRIAL HEARING - COMMENCEMENT OF HEARING IMMINENT - STAY OF TRIAL SOUGHT Criminal Appeal Act 1912 LEGISLATION CITED : Judiciary Act 1903 Jury Act 1977 Regina v Ida Ronen PARTIES : Regina v Nitzan Ronen Regina v Izhar Ronen FILE NUMBER(S) : CCA 60177/04; 60179/04; 60178/04 R. Richter QC & N. Rosenbaum (Ida Ronen) COUNSEL : I. Hill QC & E. Power (Nitzan Ronen) P. Jones (with R. Van Der Wiel QC) (Izhar Ronen) D. Hammerschlag SC & M. McNaughton (DPP Cth) Watsons Solicitors (Ida Ronen) SOLICITORS : Charlesworth Josem Partners (Nitzan Ronen) Woodhams O'Keefe (Izhar Ronen) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70032/03; 70222/03; 70223/03 FILE NUMBER(S) : LOWER COURT Whealy J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60177/04 60179/04 60178/04 GROVE J SIMPSON J HOWIE J Thursday 17 June 2004 REGINA v IDA RONEN REGINA v NITZAN RONEN REGINA v IZHAR RONEN Judgment 1 GROVE J: On Thursday 29 April the Court as presently constituted refused an order sought by the applicants to stay their trial currently listed to commence on Monday 3 May 2004 until the final determination of matters raised on appeal to which I will refer. 2 The application for stay was listed as a matter of urgency and nothing was put before this Court manifesting evidence given in the proceedings below (see s 5F(4) Criminal Appeal Act), however there were matters of common ground as well as the content of two interlocutory judgments of Whealy J which are the subject of appeal. 3 The applicants are to be tried on indictment presented by the Commonwealth Director of Public Prosecutions charging conspiracy with each other to defraud the Commissioner of Taxation. The detail of the indictment is not presently relevant. In the months of February, March and April pre-trial issues have been ventilated and determined by the presiding trial judge and empanelment of the jury is scheduled for 3 May 2004. 4 On 16 April 2004 application was made to Whealy J on behalf of the accused applicants to be supplied with documentation identifying the names, occupations and allocated identification numbers of the members of the jury panel. 16 April was a Friday and at that point jury empanelment was scheduled to commence on the following Monday 19 April. Following argument, the learned trial judge ruled that the Jury Act 1977 on its proper construction prevented the giving to the accused or their counsel the names and occupations of the members of the panel for the purpose of selecting a jury. His Honour's ruling was given on Friday 16 April and his published reasons are before the Court. 5 On Monday 19 April 2004 shortly before the members of the jury panel were brought to court counsel for the accused informed his Honour that notice of the raising of a constitutional matter had been sent to the attorneys-general pursuant to s 78B of the Judiciary Act 1903. It suffices to note that some chose to present argument. Similar notices were sent in respect of the appeal now before this Court. As a short statement of the point sought to be raised, it was contended that the refusal to supply the information sought on the previous Friday would have the result that the trial would not comply with s 80 of the Commonwealth Constitution and, to any extent that the Jury Act 1977 might be relied upon to withhold information from the accused or their counsel, its provisions were unconstitutional in that the accused would not be being afforded a trial according to law as required by s 80. 6 On Wednesday 28 April 2004 Whealy J ruled against the applicants' contention and his published reasons are also before the Court. Nevertheless on that day his Honour certified that the issues raised and dealt with in each of the judgments that I have mentioned were proper for determination on appeal by this Court. There is no need to pause to recite the content of the certificate. 7 Having regard to the imminence of jury empanelment and commencement of trial the question of whether a stay should be granted and, if so, for how long was segregated and heard on 29 April upon which day, as I stated at the outset, stay was refused. 8 The consequence of the grant of certificate by Whealy J is that no grant of leave is necessary and the matters sought to be argued are before the Court as of right. At some point the Court is obliged to receive argument and determine the issues. This discriminates the present situation from one in which a court considering an application for a stay makes an assessment as to whether a proposition sought to be advanced is reasonably arguable or not. In assessing whether stay should be ordered the issue of the certificate by the presiding judge weighs in favour of the application. Although as I have indicated, the judgments of the trial judge related separately to the construction of the Jury Act 1977 and then the matter of constitutional guarantee, counsel expressly stated that this application for stay related to the subject matter of the first of the two judgments. 9 Nevertheless, application for stay also involves consideration of matters pertinent to the balance of convenience and prejudice to parties. These must be contemplated in the context of the particular matter. 10 There have also been three months of interlocutory arguments before the trial judge. The length of trial is estimated to be three to four months. Citizens called as potential jurors need to be present in numbers which are multiples of twelve. By reason of the late raising of the issues now put forward on behalf of the applicants there has already been one occasion upon which selection of twelve jurors from a panel did not take place. 11 It is common in any case where there is a possibility that a trial which has been embarked upon is terminated for some reason such as jury discharge, or after verdict for reasons of law convictions are quashed and new trial ordered, or a purported trial is held to be nullified by some circumstance attaching to it, that legal costs can be said to have been wasted. In this instance, the potential is not determinative. 12 It is important for the administration of justice that trial should not be unduly delayed. It is common ground that it is several years since arrests took place. It is also common ground that a large part of the Crown case is evidenced by documentation and by the product of telephone intercepts. The latter will require expert evidence by way of translation as the Court was told that most, and perhaps all, of the relevant conversations were had in a language other than English. 13 Several discrete matters, for example the availability of anticipated witnesses, were mentioned by counsel. Ignoring the absence of evidence concerning these matters, they do not severally or collectively persuade me that if they were proved, a different conclusion should be reached. 14 Balancing all the matters that have been adumbrated in the argument before the Court, my conclusion was that this Court should not intervene to delay the scheduled commencement of trial. 15 SIMPSON J: On 29 April 2004 the applicants, who are accused of conspiracy to defraud the Commissioner of Taxation, sought a stay of their trial then listed to commence on Monday 3 May 2004. This Court refused the application. These are my reasons for concurring in the decision to refuse the application for a stay. 16 The circumstances are stated in the judgment of Grove J. I need only recapitulate them briefly. The applicants are charged with conspiracy to defraud. Interlocutory applications have occupied several months of hearing time. The trial itself is expected to be a lengthy one. One consequence of that circumstance is that it has been necessary to summon a much larger than usual jury panel, in order to ensure that an adequate number of individuals able to devote the necessary time are available for selection. 17 Among the many interlocutory issues raised and determined by the trial judge was an application on behalf of the applicants for certain personal information about each member of the jury panel summoned. This was said to raise constitutional issues within the meaning of s78B of the Judiciary Act 1903. The judgment given by the trial judge was adverse to the applicants. They signified their wish to appeal against that decision and sought, pursuant s5F(3)(b) of the Criminal Appeal Act 1912, a certificate. The trial judge so certified that the judgment was a proper one for determination on appeal. The applicants, therefore, appeal to this Court as of right against the judgment. The appeal had not, as of 29 April 2004, been allocated a hearing date. 18 On this basis the applicants sought a stay of the trial pending the determination of their appeal. 19 In my opinion the determination of the stay application involved the balancing of, essentially, two competing considerations. One consideration is of convenience. The other involves some assessment of the merit, or prospects of success, of the argument raised on behalf of the applicants. 20 The questions involving convenience are far ranging and diverse. If it be assumed that the trial were to commence, and the applicants' appeal ultimately be successful, then a trial which had proceeded for a period of time which could not, at the time this Court ruled, be known, would inevitably have to be aborted pending the provision to the applicants of the information they seek. Inconvenience would be caused to the twelve individuals selected as the jury whose time would have been wasted; to witnesses who had given evidence and would be required to do so again; to the applicants themselves and their legal representatives; and to the court. There would be obvious costs implications. The consequence of the applicants' succeeding in their appeal could have a considerable impact upon all of these people. 21 On the other hand, if the trial were delayed, and the applicants' appeal were eventually unsuccessful, inconvenience would have been caused to a large jury panel, to witnesses, to the prosecution, and to the court, which has allocated a large block of hearing time to the trial. 22 The costs and inconvenience issues were, to my mind, finely balanced. If the only issue were the relative weight of inconvenience in each of these scenarios, I would have leant to the view that a stay might be granted. That is because, it seems to me, the greater inconvenience (and expense) would arise in the former scenario. In my view, determination of the application hinged largely upon the best assessment I could make of the likely outcome of the appeal. This Court heard little argument and was, obviously, not in a position to reach a final judgment on that question. However, doing the best I could on the limited material available, it seemed to me that the applicants' prospects were not such as to warrant the inconvenience and cost of delaying a trial fixed for hearing only one (working) day after the application was made to this Court. 23 Accordingly, I joined in the order made by the court. 24 HOWIE J: I agree with the reasons of Grove J and I join in the order of the Court refusing the stay. ********** Last Modified: 10/24/2005 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.