New South Wales Supreme Court Regina v Ronen & Ors [2005] NSWSC 321 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. JUDGMENT DATE : 21 January 2005 JUDGMENT OF : Whealy J at 1 DECISION : Application for discharge of jury is refused CATCHWORDS : Application for discharge of jury during summing-up: Principles - Judge's comments on counsel's address to jury: need for caution and restraint 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 Mr. R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen COUNSEL : Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen Ms P. Musgrave - Cth DPP SOLICITORS : Watsons Solicitors - Accused LOWER COURT JURISDICTION : Local Court IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J FRIDAY 21 January 2005 70222/03 - REGINA v Ida RONEN 70032/03 - REGINA v Nitzan RONEN 70223/03 - REGINA v Izhar RONEN JUDGMENT - Re Application to Discharge Jury: See page 763 of the Summing-up transcript. 1 HIS HONOUR: Mr Richter QC has made an application that is at least in part supported by counsel for the other accused. It is an application to discharge the jury on the basis that the summing-up in relation to Mr Richter's submissions was unbalanced and sufficiently so that it will be impossible for the accused Ida Ronen to have a fair trial. 2 Mr Richter submitted that the summing-up, so far as it referred to his submissions, was dismissive of those submissions; that certain directions which should have been given were not given and that the summing-up in a number of respects reversed the burden of proof. There were also a number of specific matters raised in Mr Richter's submissions seeking a discharge. 3 Mr Hill QC shared the concerns expressed by Mr Richter although he refrained from making any application himself in view of the fact that the summing-up at that stage had not touched upon his submissions. Mr Hill however suggested that the summing-up, to the stage it had reached, confused Mr Richter's submissions by references to either the Crown argument, arguments of my own or by references to evidence in the transcript. Put simply, Mr Hill suggested that the defence argument had not been put fairly. 4 Mr Van de Wiel QC generally shared the concerns expressed by Mr Hill. 5 I have taken into account all the submissions made by Mr Richter and I have generally taken on board the concerns expressed by both Mr Hill and Mr Van de Wiel. I have come to the conclusion however that there is no merit in the application for discharge of the jury and I reject the submissions that have been made both in general and specific terms. So far as Mr Van de Wiel in concerned, he has raised some genuine matters with me and I will endeavour to make sure the jury are reminded of the points he made when I continue the summing-up in relation to his submissions. 6 I should make it clear that I do not take exception to the application that has been made. Mr Richter was entitled to make the application. The terms of his submissions, and those of other counsel, have required me to look critically at what I have said in the summing-up to date and to assess fairly whether there is any danger that Mrs Ronen will be prejudiced in the sense of not obtaining a fair trial. 7 It is my view that I have endeavoured in fact throughout the summing-up to put the defence case fairly. This has, in relation to Mr Richter's submissions before the jury, not been an easy task. As long ago as 19 December 2004 at T 7872 I urged Mr Richter to take care with his submissions. The Crown was placed in a position where, on each of the days of Mr Richter's submissions, it made detailed submissions and complaints regarding the fact that Senior Counsel's submissions put propositions where there may have been no evidence to support them; referred to matters appearing in the evidence in a misleading fashion; and put submissions of an important nature which had never been put to the particular witness. These various applications were debated at length as the transcript will reveal. On 21 December 2004 (T 7985) I asked Mr Richter to provide me with references to any evidence that the defence would wish me to read in the light of the various applications for correction or re-direction that had been made by the Crown. This was promised to me and counsel undertook to provide me with relevant transcript references during the short Christmas break. When the trial resumed on 4 January 2005, I noted that I had not been provided with any references of this kind. I asked Mr Richter to attend to the matter and I was told that I would be given a list of detailed references before I commenced my summing-up. I was not however supplied with any material of this kind. 8 On 21 December 2004 I raised concerns that, in some critical areas of the defence submission, there appeared to be no evidence that gave direct support to those submissions (T 7996). I was provided with references to material which Mr Richter suggested would raise inferences as to those matters (T 8000) but little further assistance was given. I reminded Mr Richter on 5 January 2005 that the process I was being driven to adopt of reading evidence to the jury where the Crown had suggested the evidence did not support counsel's submissions was likely to carry some risk, unless it were carefully presented, that the summing-up might give an appearance of imbalance. 9 Notwithstanding these cautions and concerns, Mr Richter continued his lengthy closing address, in many instances, with scant regard for the evidence and its detail; and with little regard for my cautions and concerns. 10 It is my view that I have fairly endeavoured throughout the summing-up to put the defence case fairly and squarely. It is also my view that I have been forced into a difficult and sensitive situation, because of the nature of the submissions made by Mr Richter. This is so particularly in the areas where there appeared to be little or no evidence to support his submissions or where submissions of factual matters were put that had been not placed before witnesses during cross-examination. This had led to my having to refer to the evidence on a selected number of occasions. I hasten to add that the applications for re-direction by the Crown, if they had been granted in total, would have required very much more significant intervention on my part than I ultimately decided to impose. I have in fact rejected many of the areas in the Crown's series of applications where I considered that the matter was of less than major importance or where the failing was of a less blatant kind. To that extent, it may well be that I have been unfair to the Crown, as Mr Game SC pointed out during his submissions. Nevertheless, I have thought it appropriate to present those aspects of my summing-up in the mildest of possible terms and in terminology that endeavoured, time and time again, to stress that there was no criticism being made of the defence or the defence case. Rather, I endeavoured to point out to the jury that it was their task to assess the submissions that had been made by reference to the evidence. It may be that it will fall to others to form a view, as to whether I have carried out my duty as the trial judge in the summing-up fairly or unfairly in the presentation of the evidence. I have been at pains however to remind the jury time and time again that the onus remains always on the Crown. I have endeavoured to refrain from making any comment on matters where, having regard to the nature of the submissions made by Mr Richter, critical comment may well have been quite appropriate. 11 Mr Van de Wiel suggested in his submissions that the methodology I had adopted may have brought about a situation of unfairness. In that submission I understood him to be echoing the more positive complaints that Mr Richter made during the discharge application. 12 Again, I can only repeat that the methodology I have used, if that be a correct term to describe it, was forced upon me by the nature of the submissions which have been made. The recurring theme, as I have attempted to present it before the jury, has been simply to remind the jury that they need to assess the submissions of counsel in the context of the actual evidence. 13 So far as the summing-up involves a comparison of the Crown and the defence position in certain critical areas, I have endeavoured in that regard, to do so in a fair and balanced way between the parties, emphasing again that the onus lies always on the Crown and that no onus is placed upon the defence. I have in general terms attempted to give the defence the last say in the way I have expressed any contrasting statements of the Crown and defence position. I do not believe that I have expressed any opinion one way or the other about the merits of those competing arguments, although I have reminded the jury on a number of occasions that they must have regard to the evidence. 14 The application is refused. ********** 18/04/2005 - Crown Counsels' names omitted - Paragraph(s) No paragraph nos on Cover sheet 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.