Citation: Regina v Ida Ronen; Regina v Nitzan Ronen; Regina v Izhar Ronen [2004] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 17 June 2004
Judge(s): Grove J, Simpson J, Howie J
Background
Three accused faced trial on indictment presented by the Commonwealth Director of Public Prosecutions, charging them with conspiracy to defraud the Commissioner of Taxation. Pre-trial interlocutory hearings had occupied several months before the trial judge, Whealy J, and the trial was a lengthy one, estimated to run three to four months.
Shortly before jury empanelment was due to begin in April 2004, the accused applied to be provided with the names, occupations, and identification numbers of members of the jury panel. Whealy J ruled against that application, finding the Jury Act 1977 prevented disclosure of that information. The accused then raised a constitutional argument: that withholding the information would mean the trial did not comply with section 80 of the Commonwealth Constitution, and that any provisions of the Jury Act 1977 used to withhold the information were unconstitutional.
Whealy J ruled against the constitutional argument as well but certified both judgments as suitable for appeal. With jury empanelment imminent, the accused applied to the Court of Criminal Appeal for a stay of the trial pending the outcome of their appeal.
Legal Issues
- Whether a stay of the trial should be granted pending the determination of an interlocutory appeal concerning the refusal to supply jury panel information to the accused and their counsel
- How to balance the competing considerations of convenience and inconvenience to all parties and participants in each possible outcome
- What weight the trial judge's certificate (confirming the matters were suitable for appeal) should carry in the stay analysis
Decision
The Court unanimously refused the stay. All three judges delivered separate reasons, each reaching the same conclusion by weighing the balance of convenience against the prospects of the appeal.
Grove J acknowledged that the certificate issued by Whealy J weighed in favour of granting the stay, since it meant the appeal proceeded as of right without a separate leave requirement. However, his Honour concluded that the administration of justice required that the trial not be unduly delayed. He noted the case had already been on foot for several years, involved extensive documentary and telephone intercept evidence requiring translation, and that late raising of the issues had already caused one occasion on which jury selection had failed to proceed.
Simpson J found the competing convenience considerations "finely balanced," observing that the greater inconvenience and expense might arise if the trial commenced and the appeal later succeeded, as a partly completed trial would need to be aborted. However, her Honour concluded that the application ultimately turned on an assessment of the appeal's prospects. On the limited material available, she was not persuaded those prospects were strong enough to justify delaying a trial fixed to begin the next working day.
Howie J agreed with Grove J's reasons without adding further analysis.
Orders Made
- Stay of trial refused.
Key Takeaways
- Refusing the stay, the Court of Criminal Appeal confirmed that a trial judge's certificate that an interlocutory matter is suitable for appeal is a relevant factor weighing in favour of a stay, but it is not determinative.
- The balance of convenience analysis requires consideration of inconvenience to all participants in both scenarios: the trial proceeding and the appeal later succeeding, versus the trial being delayed and the appeal ultimately failing.
- Where convenience considerations are finely balanced, the likely prospects of success on the pending appeal can become the decisive factor in resolving a stay application.
- The importance of not unduly delaying criminal trials is a weighty consideration, particularly where proceedings have already been on foot for several years and significant preparatory work has been done.
- A constitutional argument raised late in pre-trial proceedings, and linked to jury selection procedures, does not automatically attract a stay merely because the trial judge has certified it as appropriate for appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5F(3)(b) and 5F(4)
- Judiciary Act 1903 (Cth), section 78B
- Jury Act 1977 (NSW)
- Commonwealth Constitution, section 80
Cases:
No cases were cited in the text of this decision.