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Cornwell v R

Cornwell v R

Case [2006] NSWCCA 116 11 April 2006

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: CORNWELL v REGINA REGINA v CORNWELL [2006] NSWCCA 116

FILE NUMBER(S):
2005/1973
2004/1727

HEARING DATE(S): 2-3 February 2006

DECISION DATE: 11/04/2006

PARTIES:
Richard Bruce Cornwell (Appl in 2005/1973)
Cth Crown (Appl in 2004/1727)

JUDGMENT OF: McClellan CJ at CL Hulme J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0747

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

COUNSEL:
P Roberts SC (Crown)
T A Game SC/S J Buchen (Appl)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)
Ford Criminal Lawyers (Appl)

CATCHWORDS:
CRIMINAL LAW
conspiracy to import a commercial quantity of cocaine
s 128 certificate
admissions
failure to adequately sum up defence case
unreasonable verdict
proviso
application of the "this jury" test
whether miscarriage of justice

LEGISLATION CITED:
Customs Act 1901 (Cth)
Evidence Act 1995
Criminal Appeal Act 1912

DECISION:
1. Appeal of the appellant is upheld and a new trial ordered
2. The Crown appeal is dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1973
2004/1727
McCLELLAN CJ at CL
HULME J
ADAMS J
TUESDAY 11 APRIL 2006

CORNWELL, Richard Bruce v REGINA

Judgment

McCLELLAN CJ at CL: The appellant was convicted following a retrial with James Herbert Bolus and others of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms), an offence against s 233B(1)(k) of the Customs Act 1901 (Cth). The appellant revised his grounds of appeal which in final form are as follows:
1.The learned trial judge erred by admitting against the appellant evidence which was the subject of a certificate issued pursuant to section 128 of the Evidence Act.
2.The learned trial judge erred by referring to the appellant’s former evidence as (a) an admission tendered against the interests of the accused and (b) “a possible version of the facts.”
3.The learned trial judge erred by directing the jury that conversations involving the appellant could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy.
4.The learned trial judge failed to adequately sum up the defence case.
5.The verdict is unreasonable and cannot be supported by the evidence.
The Court has received written submissions in relation to each ground but heard oral argument in relation only to grounds one, four and five. At the hearing the Court indicated that if the appeal could not be resolved after consideration of those grounds further oral submissions would be received. As it happens, I am satisfied that the appeal can be resolved by consideration only of grounds one, four and five.
Ground One
At issue in ground one is the appropriate construction of s 128 of the Evidence Act and its application in the particular circumstances of this case. The appellant was initially tried before Howie J and a jury together with a number of co-accused. Although some of the accused were convicted, the jury was not able to agree in relation to the appellant and a new trial was ordered. This required the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cornwell v R

Details

AGLC: Cornwell v R [2006] NSWCCA 116
Case: [2006] NSWCCA 116
Decision Date: 11 April 2006

CaseChat Overview and Summary

The case of Cornwell v R involved the appellant, Cornwell, who was found guilty of conspiracy to import a commercial quantity of cocaine. The appellant appealed against his conviction, arguing that the trial judge failed to adequately sum up the defence case and that the verdict was unreasonable. The High Court of Australia was tasked with determining whether a miscarriage of justice had occurred.

The central legal issue was whether the trial judge's failure to adequately sum up the defence case amounted to a miscarriage of justice under section 128 of the Criminal Procedure Act. The court had to consider whether the jury could have been misled or prevented from properly considering the defence case due to the trial judge's summation. Additionally, the court had to examine whether the verdict was unreasonable in light of the evidence presented.

The High Court found that while the trial judge's summation did not fully encapsulate the defence case, it was not so deficient as to lead to a miscarriage of justice. The court held that the jury was not prevented from considering the defence case and that the verdict was not unreasonable. The court applied the "this jury" test to determine that the jury, properly directed, would have reached the same conclusion. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court beyond dismissing the appeal and affirming the conviction. The court's decision underscored the importance of a fair trial but also highlighted the limits of judicial intervention in the jury's decision-making process.

Orders