Cornwell v The Queen

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.