Cornwell v The Queen [2007] HCA 12 22 March 2007 S215/2006, S281/2006 & S282/2006
ORDER
In Appeal No S281 of 2006 and Application No S215 of 2006:
1. Appeal allowed.
2. Application for special leave to cross-appeal granted and cross-appeal allowed.
3. Matter remitted to the Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6, and reconsideration of ground 5, in the appellant's notice of appeal to that Court.
In Appeal No S282 of 2006:
1. Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
P Roberts SC for the respondent in Matter No S215/206 and for the appellant in S281/2006 and S282/2006 (instructed by Commonwealth Director of Public Prosecutions)
T A Game SC with S J Buchen for the applicant in matter No S215/2006 and for the respondent in S281/2006 and S282/2006 (instructed by Ford Criminal Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cornwell v The Queen
Evidence – Competence and compellability of accused persons – Accused convicted following retrial of conspiracy to import cocaine – Accused gave evidence after indications that a certificate under s 128(6) would be granted – At retrial, Crown sought to tender cross-examination evidence from first trial – Evidence held to be admissible at retrial – Construction of s 128(8) – Whether s 128(8) precluded accused from relying on the certificate – Privilege against self-incrimination – Meaning of "fact in issue" under s 128(8) – Distinction between "facts in issue" and "facts relevant to facts in issue" – Whether evidence went to a "fact in issue" at the retrial – Whether retrial was a "proceeding" to which s 128(7) applied.
Evidence – Criminal Procedure – Competency of Crown challenge to grant and issue of certificate – Significance of certificate granted under s 128 – Whether trial judge conducting retrial bound by evidentiary rulings in the first trial.
Evidence – Criminal Procedure – Whether evidence should have been excluded on discretionary grounds – Whether retrial was unfair – Whether accused prejudiced by evidence tendered at retrial.
Evidence – Criminal Procedure – Whether accused objected to giving evidence – Meaning of "objects" in s 128(1) – Whether s 128 applies where witness sets out to adduce evidence revealing offences other than the one charged.
Criminal Law and Procedure – Appeal – Appeal against conviction – Verdict of acquittal – Appeal ground alleges that conviction unreasonable and contrary to evidence – Obligation of Court of Criminal Appeal to consider and decide ground of appeal – Necessity of independent assessment – Whether reasons sufficiently demonstrate such assessment.
Words and phrases – "proceeding", "fact in issue", "fact relevant to a fact in issue" "objects", "interests of justice".
[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.
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AGLC
Cornwell v The Queen [2007] HCA 12
Case
[2007] HCA 12
Decision Date
CaseChat Overview and Summary
The case of *Cornwell v The Queen* concerned an appeal by the accused, Richard Bruce Cornwell, against his conviction for conspiracy to import cocaine. The dispute centred on the admissibility of evidence given by the accused during his first trial, which the Crown sought to tender in his second trial. The High Court of Australia considered appeals and applications for special leave to appeal from decisions of the Court of Criminal Appeal of New South Wales.
The legal issues before the High Court included the construction and application of section 128 of the *Evidence Act 1995* (NSW), particularly subsections (7) and (8), concerning the privilege against self-incrimination and the effect of a certificate granted under that section. The court had to determine whether the evidence given by the accused in his first trial, which related to conversations about drug supply, constituted "facts in issue" or "facts relevant to facts in issue" for the purposes of section 128(8), and whether the retrial constituted a "proceeding" to which section 128(7) applied. Further issues involved the competency and compellability of an accused person, the significance of a section 128 certificate, whether a trial judge is bound by prior evidentiary rulings, and whether the evidence should have been excluded on discretionary grounds due to unfair prejudice or unfairness to the accused.
The High Court reasoned that the Court of Criminal Appeal had erred in its approach to section 128 of the *Evidence Act 1995* (NSW). The court clarified that a section 128 certificate protects an accused from having evidence they give, which might tend to incriminate them in an offence other than the one charged, used against them in subsequent proceedings. The High Court found that the trial judge in the second trial incorrectly interpreted section 128(8) by concluding that because the evidence related to a "fact in issue" in the retrial, the certificate did not apply. The court held that the certificate's protection under section 128(7) remained operative, preventing the use of the evidence against the accused in the retrial, unless the exception in section 128(8) was applicable, which it found was not the case here. The court emphasised the importance of legal accuracy in criminal trials and the correct interpretation of statutory provisions protecting fundamental rights.
Consequently, the High Court allowed the accused's appeal and granted special leave to cross-appeal, allowing the cross-appeal. The orders of the Court of Criminal Appeal were set aside, and the matter was remitted to that court for consideration of specific grounds of appeal, including the fifth ground concerning the unreasonableness of the verdict and its support by the evidence. The prosecution's appeals were dismissed.
Orders
Orders of the court
In Appeal No S281 of 2006 and Application No S215 of 2006: 1. Appeal allowed; 2. Application for special leave to cross-appeal granted and cross-appeal allowed; 3. Matter remitted to the Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6, and reconsideration of ground 5, in the appellant's notice of appeal to that Court.
In Appeal No S282 of 2006: 1. Appeal dismissed.
Background
Background to the litigation
The background to these matters is complex and unusual. It led to considerable division of opinion in the courts below. Background The charge. On 17 February 2003 the DPP charged the accused on an indictment that he conspired (with eight other defendants, three other named persons "and divers others") to "import into Australia prohibited imports to which section 233B of the Customs Act 1901 [(Cth)] applied, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine". The period alleged was the period between about 1 January 2001 and about 6 August 2001. The provision allegedly contravened was s 233B(1)(cb)[2]. The quantity of cocaine allegedly involved was approximately 120 kilograms. The commercial quantity applicable to cocaine was two kilograms. The maximum sentence was a fine not exceeding $825,000 and/or imprisonment for life. The accused was sentenced to 24 years imprisonment, with a non-parole period of 14 years and six months. [2]Section 233B(1)(cb) provided:"(1)Any person who:...(cb)conspires with another person or other persons to import ... into Australia any prohibited imports to which this section applies ...shall be guilty of an offence." Howie J admits recorded conversations. The first trial began on 4 February 2003. On 20 February 2003, Howie J decided to admit into evidence certain listening device recordings of conversations between the accused and one of the defendants, Mr Diez, and between the accused and another of the defendants, Mr Lawrence ("the Diez-Lawrence conversations"). Howie J did so on the basis that the Diez-Lawrence conversations revealed that the three persons were involved in the business of supplying drugs to buyers in Australia, and that this was "highly probative evidence" of their participation in the alleged conspiracy to import drugs into Australia[3]. Howie J said[4]:"A person involved in the drug trade has to obtain his supplies from somewhere. When that trade is as substantial as appears to be that in which the accused was involved, it is well open to the jury to find that the accused would be a participant in a conspiracy to obtain a substantial amount of drug for the purpose of carrying out the trade in which he was involved."Howie J rejected various contentions advanced on behalf of the accused which are not now pressed, for example, that the evidence was tendency evidence which was not admissible under s 97 of the NSW Act, that the evidence was so unfairly prejudicial that the Court should exercise its discretion under s 137 of the NSW Act to exclude it, and that it was inadmissible because it did not comply with s 138 of the NSW Act. [3]R v Cornwell (2003) 57 NSWLR 82 at 94 [40].[4]R v Cornwell (2003) 57 NSWLR 82 at 95 [46]. The accused foreshadows an application for a s 128 certificate. On 30 April 2003 counsel for the accused[5] said that he expected his client would give evidence, but that he would wish to object to testifying about the Diez-Lawrence conversations. Counsel said that he would be seeking a certificate under s 128 of the NSW Act in relation to the accused's testimony on that subject. He said that Howie J would need to consider what procedure should be adopted. [5]Who appeared at both trials, but not at the hearing of the appeals to the Court of Criminal Appeal or in this Court.
Evidence
Evidence Before The Court
The certificate provided: "This Court certifies under section 128 of the Evidence Act 1995 of New South Wales that evidence in these proceedings by Richard Bruce Cornwellon 5 May 2003, 6 May 2003, 7 May 2003, 8 May 2003, 9 May 2003 and 12 May 2003 in relation to Richard Bruce Cornwell's involvement with Juan Guillermo Diez-Orozco, John Lawrence, and any other person in the supply or trafficking in narcotic goods between the 1st January and 10th August 2001is evidence to which section 128 (7) of that Act applies."The Evidence Regulation 2000 (NSW), cl 7(1), provided that a certificate under s 128 might be in accordance with Form 1, and Form 1 provided for a transcript, or other record of the evidence, to be attached to the certificate. None was. However, counsel for the accused marked a copy of the transcript to indicate which portions were in his contention covered by the certificate. Blackmore DCJ receives the accused's testimony about the Diez-Lawrence conversations. The DPP had previously indicated to Blackmore DCJ that he wished to tender the whole of the accused's evidence in cross-examination from the first trial. On 12 February 2004 Blackmore DCJ made the crucial ruling of which the accused complains. He ruled that the Diez-Lawrence conversations "went to a fact in issue" in the trial before him and that s 128(8) precluded the accused from relying on the certificate to prevent the tender of evidence about those conversations. That is, he apparently declined to accept Howie J's ruling that s 128(8) did not apply to the accused's oral evidence about the Diez-Lawrence conversations and appeared to reach the conclusion that since s 128(8) was satisfied, s 128 as a whole did not apply[11]. If that were his reasoning, it would follow that the inhibition which Blackmore DCJ considered was otherwise created by s 128(7) on the use of the evidence against the accused did not exist. Blackmore DCJ rejected an argument that there was sufficient unfairness in the tender to outweigh the significant probative value of the evidence. The accused then requested that the Crown tender the whole of the accused's evidence at the first trial and not just the cross-examination. The Crown agreed to this course, and it was adopted. The accused did not give evidence at the second trial. On 8 June 2004 he was convicted. On 18 November 2004 he was sentenced. [11]That was the Court of Criminal Appeal's view of what Blackmore DCJ did: Cornwell v The Queen (2006) 160 A Crim R 243 at 260 [84] and 261 [91]. The appeals to the Court of Criminal Appeal. In the meantime, on 24 February 2004 the DPP appealed to the Court of Criminal Appeal against Howie J's grant of the certificate. That appeal was eventually heard on 2 and 3 February 2006 at the same time as the accused's appeal against conviction. The grounds of appeal relied on by the accused were: "1.The learned trial judge erred by admitting against the [accused] 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 [accused'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 [accused] 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.6.The learned trial judge erred in refusing to grant the [accused] access to the information on oath deposed by Federal Agent ... on 27 February 2001."[12][12]A list of revised grounds stated by the Court of Criminal Appeal comprised only the first five grounds: Cornwell v The Queen (2006) 160 A Crim R 243 at 245 [1]. But on this appeal the DPP said without contradiction by counsel for the accused that ground 6 was a ground of appeal as well.
Decision
Reasons for decision
GLEESON CJ
CJ, GUMMOW, HEYDON AND CRENNAN JJ
(dissent)
No argument was advanced before this Court that the "proviso"[222] should be applied if the foregoing conclusions were reached. The Court of Criminal Appeal was correct to conclude that it should not[223]. To order a third trial is a misfortune. Impatience with the arguments of the accused is understandable, given that his defence concedes serious domestic dealings in prohibited drugs. However, that course is required by the high value placed by our law on legal accuracy in criminal trials. Moreover, the contrary conclusion distorts the meaning of a most important statute which is gradually gaining acceptance as a reformed national, uniform law of evidence.[222]Criminal Appeal Act 1912 (NSW) s 6(1).[223](2006) 160 A Crim R 243 at 265 [115].Conclusions and orders Save in respect of the complaint raised by the accused's application to cross-appeal, I would therefore confirm all of the conclusions of law, fact and discretion reached by the Court of Criminal Appeal. Substantially, I would confirm the approach taken by Howie J in the first trial as to the meaning and application of s 128 of the NSW Act. The prosecution's appeals in matters S281 of 2006 and S282 of 2006 should be dismissed[224].[224]As pointed out in the joint reasons at [114] the DPP agreed that the disposition of the prosecution appeal in matter S 281/2006 determined the outcome of its appeal in matter S 282/2006. For the reasons also discussed, the accused's application for special leave to cross-appeal should be granted and the cross-appeal allowed. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales should be set aside so as to permit that Court to hear and determine the accused's fifth ground of appeal in the revised grounds of appeal to that Court[225].[225]See (2006) 160 A Crim R 243 at 245 [1].