R v Cornwell
[2006] HCATrans 543
[2006] HCATrans 543
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S215 of 2006
B e t w e e n -
RICHARD BRUCE CORNWELL
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney Nos S281 and S282 of 2006
B e t w e e n -
THE QUEEN
Appellant
and
RICHARD BRUCE CORNWELL
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 4 OCTOBER 2006, AT 10.20 AM
Copyright in the High Court of Australia
__________________
MR P. ROBERTS, SC: If the Court pleases, I appear for the Crown in the two appeals and for the Crown in the application. (instructed by Commonwealth Director of Public Prosecutions)
MR T.A. GAME, SC: If the Court pleases, I appear with MR S.J. BUCHEN for the respondent in the Crown appeals and for the applicant in Mr Cornwell’s application for special leave. (instructed by Ford Criminal Lawyers)
GLEESON CJ: Yes, Mr Roberts.
MR ROBERTS: Your Honours, these two Crown appeals involve a decision of the Court of Criminal Appeal of 11 April 2006 which appears in volume 3 of the appeal books commencing at page 1205 in which the New South Wales Court of Criminal Appeal upheld an appeal by the respondent against his conviction for an offence against section 233B(1)(cb) of the Customs Act and ordered a new trial and, secondly, the Court of Criminal Appeal in the same judgment dismissed the Crown appeal under section 5F of the Criminal Appeal Act in relation to the certificate granted under section 128 of the Evidence Act by Justice Howie in the first of the two trials in which the respondent appeared, the first trial having no – the jury could not decide in relation to that matter.
GLEESON CJ: Section 128, according to its opening words, applies if a witness objects to giving particular evidence. Where can we see the witness objecting to giving evidence?
MR ROBERTS: I can take your Honour to what happened, but it is ‑ ‑ ‑
GLEESON CJ: Just the page of the transcript will do.
MR ROBERTS: Yes, 68, I think, of volume 1. Perhaps if your Honours would go to page 65. This is an extract from the transcript of the trial before Justice Howie. As your Honours will see at the bottom of the page, it was on 5 May, some three months or so after the trial had commenced, and your Honours will there see that Richard Bruce Cornwell was sworn to give evidence in the matter.
GLEESON CJ: Who is Mr Boulten?
MR ROBERTS: Mr Boulten was counsel for the respondent.
GLEESON CJ: Mr Cornwell?
MR ROBERTS: Correct.
GLEESON CJ: Thank you. Where do we see Mr Cornwell objecting to giving evidence?
MR ROBERTS: Page 68 of the appeal book at approximately line 30, the question was asked by his counsel:
All right. Some time after you re-established contact with Mr Diez, did he raise with you the possibility of involvement in some form of illegal activity?
A. In February.Q. You may wish to preserve your legal rights here in answer to this question, Mr Cornwell: What did he say to you about the possibility of your involvement in some illegal activity?
GLEESON CJ: So he objected to the question that his barrister asked him?
MR ROBERTS: That is right.
GLEESON CJ: Why did he not just tell his barrister not to ask him the question and to move on to the next question?
MR ROBERTS: That is a question that I cannot answer, your Honour, but that is what happened. This is what was said to be the raising of privilege; he was said to have a privilege in relation to the putative evidence that he was about to give which is referred to by his counsel in the subsequent pages.
GLEESON CJ: Does a question arise whether what we see at page 68 of the appeal book is a witness objecting to giving particular evidence within the meaning of section 128(1)?
MR ROBERTS: It could be so construed and it was so construed by Justice Howie. In effect, what he was doing was to say “I want to give this evidence but I claim that I have a privilege against self-incrimination and I want a certificate to protect me so that my evidence cannot be used in other proceedings for an offence charging me with supplying cocaine”. That, in effect, is what he wished to do and that is what he said he was able to do by reason of section 128 of the Evidence Act. There are, as your Honours would probably have seen, two provisions in section 128: one relating to the situation where someone is prepared to give the evidence, subsection (3), and one where the witness claims the privilege and he is ordered to give the evidence, subsection (6).
It seems to be a claim under subsection (3) that he is prepared to give the evidence, but wants the certificate, but Justice Howie moved to subsection (6) and made an order that he give the certificate. I am not sure that necessarily matters but that is in fact what happened in the circumstances of the case.
GLEESON CJ: Subsection (3) does not say anything about him being prepared to do anything. It says “If the witness gives the evidence”.
MR ROBERTS: Your Honours, I am sorry, subsection (3) is the giving of the certificate. Subsection (2):
if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence.
GLEESON CJ: But the whole of the section is premised, is it not, upon an objection to give evidence?
MR ROBERTS: That is right.
GLEESON CJ: Well, what has the section to do with the case of a witness who wants to give evidence about a matter and instructs his counsel to lead evidence?
MR ROBERTS: Well, your Honours, it appears that subsection 128(2) enables that course to be taken because it enables someone to say, “I am prepared to give ‑ ‑ ‑
GLEESON CJ: It enables what course to be taken?
MR ROBERTS: A witness to claim privilege against self‑incrimination, but to say, “I will give this evidence. I’m prepared to give it, provided I get a certificate”, and the section as it reads, “if the court finds that there are reasonable grounds for objection”, that is, there are reasonable grounds for saying that the witness has a privilege against self‑incrimination:
the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a)that he or she need not give the evidence, and
(b)that, if he or she gives the evidence, the court will give a certificate under this section . . .
(3)If the witness gives the evidence, the court is to cause the witness to be given a certificate –
So, in other words, it is a voluntary course provided the witness gets the certificate; whereas subsection 5:
If the court is satisfied that:
(a)the evidence concerned may tend to prove that the witness has committed an offence . . .
(c)the interests of justice require that the witness give the evidence –
the court may require the witness to give the evidence.
So one is more of a consensual approach and the second one is an order that the witness gives the evidence.
GUMMOW J: What does (2)(a) say - “need not give the evidence”.
MR ROBERTS: That is right.
GUMMOW J: Well, this is all happening in-chief.
MR ROBERTS: I know, your Honours.
GLEESON CJ: The way to avoid giving this evidence was to say to Mr Boulten, “Sit down. You are my counsel. I do not want you asking that question. Move onto the next question”.
MR ROBERTS: Of course.
GLEESON CJ: This question to which Mr Cornwell objected was a question, presumably, asked on his instructions.
MR ROBERTS: Well, it was a question designed to elicit evidence which he hoped, at least, would lead to the jury not convicting of the offence. So he wished to give his account which he was putting forward as reasons why he was not a party to this conspiracy, but he wanted to give that evidence with the protection that it could not be used against him in some other proceeding.
GLEESON CJ: It may ultimately be right, but the whole debate proceeds upon the assumption, does it not, that section 128 has an immunising effect that can be used by a person who desires to give evidence about a particular subject matter?
MR ROBERTS: Subsection (2), yes.
GLEESON CJ: No, the entire section – the theory is that the entire section provides an immunising effect which can be taken advantage of by a person who desires in his own interests to give evidence.
MR ROBERTS: Well, subsection (2), but subsection (5) caters for the situation where you have a reluctant witness who does not want to give evidence and will only do so if he is ordered by the court. So it does cater for two separate situations of which, as your Honour says, Mr Cornwell obviously fell in the first category. He wanted to give his evidence but he did not want to run the risk that it could be used in some other proceedings against him for an offence of supplying cocaine.
KIRBY J: That is the answer to the question: “Why did he not just tell Mr Boulten not to open it up or to shut up or to sit down?”
MR ROBERTS: Because he wanted to give the evidence.
KIRBY J: He wanted the evidence. The issue is whether section 128(2) permits him to do it in this fashion.
MR ROBERTS: The first question is is whether he had a legitimate claim in the circumstances ‑ ‑ ‑
GUMMOW J: No, the first question is does 128 speak to this situation at all? That is what the Chief Justice is putting to you, I think, and if it does not speak to this situation at all the occasion for us to sort out what the same proceeding is and whether the retrial is in another proceeding or not would not arise. You would succeed, but on another footing.
MR ROBERTS: Your Honour, 128 does not apply to this situation because 128(8) says that it does not apply. That is the reason, because the first thing that needs to be understood, we say, in the context of 128 is how it applies in relation to a criminal proceeding and this is - our argument in relation to this as a matter of history and a matter of language, evidence concerning – by an accused:
being evidence that the defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind –
falls outside 128 and we say, clearly this evidence fell within subsection (8) and therefore 128 had nothing to do with it.
HEYDON J: Just to be clear about it, there are two reasons in play as to why section 128 did not apply. One is the one you have just flagged because of subsection (8). The second is the one the Chief Justice has been flagging. Mr Cornwell did not object to giving the evidence, he consented to giving the evidence. There was a formal objection in another sense of the word taken.
MR ROBERTS: Yes.
HEYDON J: But he did not object to it, he wanted it.
MR ROBERTS: That is so, but if subsection (2) is construed in the way that it is capable - it is not my argument, necessarily, but this is the argument against me, that if subsection (2) is construed in that fashion it enables a person, a witness, who is desirous of – taking it away from the accused – if a witness is desirous of giving evidence but wants some protection 128(2) applies, whereas, if you have a reluctant witness who does not want to give evidence at all then subsection (5) applies because he can be compelled.
GLEESON CJ: It is not a question of psychoanalysing the witness. There might be all sorts of shades of mental or emotional state in a witness about what he wants to do or does not want to do. Take a case away from the facts of the present. Suppose a person is charged with burglary in Sydney on 1 January 2006 and the person’s defence is an alibi, the alibi being that in Melbourne on 1 January 2006 he was committing a burglary, so he could not have been in Sydney and he could not have committed this offence.
MR ROBERTS: Yes.
GLEESON CJ: What does section 128 have to say to raising that alibi?
MR ROBERTS: Again, we say that this would fall within subsection (8). It is a fact that he wishes to prove that proves his innocence. It falls within 128 - 128(8), therefore, 128 does not apply to it.
GLEESON CJ: Has it ever occurred to anybody on your side of the record to argue at any stage of these proceedings that in a case such as that section 128 has no application at all because there is no objection to giving evidence within the meaning of the opening words of subsection (1)?
MR ROBERTS: It has occurred to us, your Honour, but the way we read the section, the objection as such is an objection - in effect, the objection is to raise the claim to privilege. This is the argument that is borne so far in these proceedings. In effect, the objection to giving evidence is, “I claim privilege in relation to this evidence. I am prepared to give it but I would like a certificate because I am entitled to one because I do have a privilege in relation to this evidence” or, alternatively, “I don’t want to give this evidence ‑ ‑ ‑
GLEESON CJ: This is a sort of ritual that people go through.
MR ROBERTS: Well, when your Honour has asked me, people go through – this is the first time I have ever encountered an accused getting a certificate in these circumstances, but witnesses quite often do.
GLEESON CJ: I am only talking about people who are accused of criminal offences and who desire to defend themselves by giving evidence on a ground that might reveal the commission of another offence.
MR ROBERTS: Well, this is the first time that I am aware of that deception has been construed in the fashion that Justice Howie has construed it, so I cannot say what happened elsewhere because, as far as I am concerned, it has never happened before, for obvious reasons we say, because it simply does not apply because section 128(8) excludes that sort of evidence from the operation of 128.
GLEESON CJ: I am surprised that you say that because in the report of the Law Reform Commission that is included in the materials that were provided to us examples are given, apparently from civil proceedings, in which parties to civil proceedings have desired to give evidence but have wanted to attract a form of immunity. Is that something that happens in civil proceedings?
MR ROBERTS: Yes. I mean, for example, someone might wish to give evidence about how much they earn and they have not paid tax or committed an offence against the Taxation Administration Act or something along those lines and they might, in their own case – a plaintiff, for example, might then say, in effect, “I want to give this evidence, but I realise I am at risk of being prosecuted and I have a privilege against self‑incrimination. I am seeking a certificate under 128”, and if the court was so minded and found there was a real risk of self‑incrimination in relation to an offence, then the court may well grant a certificate under subsection (3) having found that the matters in subsection (2) arise.
GLEESON CJ: Now, are there any reasoned decisions of courts, apart from this one, which deal with the question whether section 128 has anything to say in such a situation?
MR ROBERTS: Well, there are a few decisions of civil courts in relation to the granting of certificates, but I do not think that the matter that your Honour has raised with me, where someone is desirous of giving the evidence, it has any application at all. I do not think that point has been raised. I do not know whether this necessarily answers your Honour’s point, but as I read the Law Reform Commission reports which preceded this, it appears that the two situations that I have postulated were the intended reason of the Law Reform Commission at least in relation to their proposals that there could be these two situations and therefore they have catered for them in the two subsections in 128. So if it be right that someone can be desirous of giving the evidence but wants the protection that is available, subsections (2) and (3) would enable that to happen.
GLEESON CJ: Just leave aside questions of desire at the moment. If it be right that somebody sets out in his or her own case to lead the evidence, to adduce the evidence, by his or her own testimony, then this section provides, does it, a mechanism for taking some kind of formal objection and then seeking a certificate?
MR ROBERTS: Well, it is certainly capable of that construction, yes, and this is the construction obviously that was – I cannot say obviously because we seem to have bypassed the desire or we went straight to subsection (6) it seems with Justice Howie because Justice Howie made an order that he give the evidence, which seems a trifle odd in terms of an accused giving evidence‑in‑chief and he is ordered to, in effect, give his excuse. I mean, it just seems ‑ ‑ ‑
GLEESON CJ: I was just raising the question how it was that anybody got past the opening words of subsection (1).
MR ROBERTS: I can only answer what I have suggested to your Honour that objecting to giving evidence there is, in effect, a formal objection in the sense that I have a privilege against self-incrimination, I want a certificate if one is available to protect me and in those circumstances I will then give the evidence whether desirability or not comes into it. I cannot go beyond saying that in answer to your Honour’s question. Obviously, in terms of an accused who elects to give evidence and then wants to say “I am not guilty for reasons X, Y and Z”, it does seem odd, to say the least, that he would then be able to say that “I have got privilege of self-incrimination about the, in effect, excuse evidence which I wish to proffer”. We say that clearly when one reads subsection (8) in the history it has no such application.
HEYDON J: You offer an account of the structure of the section which I might perhaps challenge. You say that subsection (2) deals as it will with Mr Cornwell’s case where he wants to give evidence, subsection (5) deals with a case where the witness does not want to give the evidence but is required to. Is not actually the structure this, that subsection (1) applies where the evidence may tend to prove that the witness has committed an offence against an Australian law or the law of a foreign country or a civil penalty under an Australian law or the law of a foreign country, whereas subsection (5) deals with cases where there is no danger of offences or penalties under the law of a foreign country arising, only offences or penalties under an Australian law? In that case, it says “the court may require the witness to give the evidence” as distinct from the broader case dealt with by subsections (1) and (2).
MR ROBERTS: There is that slight difference but, again, they overlap, the two situations with ‑ ‑ ‑
HEYDON J: A related question is why those engaged in debate before Justice Howie slid from the subsection (1), (2) area over into the subsection (5), (6) area?
MR ROBERTS: I can answer that fairly simply because at some stage, I think his Honour asked the question, I think of me, why is it not in the interests of justice that Mr Cornwell be allowed to give his evidence free of the risk of being charged with some other offence. By saying that, his Honour was speaking about subsection (5)(c); that is how it arose and then, as your Honours may have seen, my answer to that was how could it be in the interests of justice to require an accused person to tell us, in effect, why he is not guilty of an offence. It does not seem to ‑ ‑ ‑
GUMMOW J: Subsection (1) governs everything that follows.
MR ROBERTS: Yes.
GUMMOW J: Subsection (1) is like a jurisdictional fact that says “This section applies if”.
MR ROBERTS: It starts off with postulating that there is a privilege.
GUMMOW J: So it does not matter whether it is (2) or (5) or (6) or anything. You have to get across the threshold in (1).
MR ROBERTS: Yes, that is right. It applies to all of the section.
GUMMOW J: The question is did this case ever get across the threshold in (1)? That is a question.
MR ROBERTS: Yes. That is the point that the Chief Justice has raised with me and I have given an answer. Whether it is a suitable one or ‑ ‑ ‑
GUMMOW J: It places us in an impossible position. We do not have a submission about something that looks as clear as daylight at first blush.
MR ROBERTS: Your Honour, I think the problem in trying to interpret this is in relation to an accused giving evidence of the nature that was sought to be given here, this section has nothing to do with that as it makes clear. In order to test what it really means you need to go to, in effect, the civil situation to see what could happen or the position of a witness other than an accused to see how it could have ‑ ‑ ‑
GLEESON CJ: All right, well take the civil situation. Suppose a person suffers personal injuries because he has been run over by a motor car and he wants to prove that he has lost a great deal of earnings but he earns his living as a housebreaker. He goes into the witness box and he would dearly like to say in order to increase his damages, “Because of my broken leg my housebreaking activities were impeded for a year”. Does this section enable him to say to the judge “I would like you to give me a certificate to immunise me against the consequences of giving evidence that my income was a great deal more than it might appear to be because of my night time activities”?
MR ROBERTS: The argument against us is, yes, it does, because that is what subsection (2) enables ‑ ‑ ‑
GLEESON CJ: We have to get past subsection (1). As Justice Gummow pointed out, the section only applies if something has happened. In the case that I have given, where would be the objection to giving the evidence?
MR ROBERTS: Well, let me put this as a scenario. If a plaintiff said, “I was in fact earning $4,000 or gaining $4,000 a week for the last 52 weeks, but I’m not going to tell you. I object to telling you how and why I got that money”, I suppose in his evidence‑in‑chief it might just pass by, and then the question would be in cross‑examination, “Well, you say you earned $4,000 a week. From where?”, and he said, “Well, I object to telling you about that because I’ve got a privilege against self‑incrimination, but I will if I get a certificate”, so I suppose that is how it could operate.
In other words, he is prepared in effect to give an explanation as to how he is earning this money and he may or may not give it in his evidence‑in‑chief, but sooner or later it would arise because he would then be asked a question about it. So he is objecting in the sense of he objects to giving the evidence and indeed may not give it in his evidence‑in‑chief, but at some stage someone is going to ask him a question about it, so it is really a question of at what stage and how it is that this objection comes about.
So I suppose by the same token it could be said, “Well, if that can happen, why couldn’t he raise it in his evidence‑in‑chief and then be asked about it in‑chief, in effect, rather than wait for cross‑examination?” That is an argument for how the section can operate.
GLEESON CJ: So in the example I gave you about the man whose alibi is that he was in Melbourne committing a burglary, he would go into the witness box and say, “On the evening of 1 January I wasn’t in Sydney, I was in Melbourne”, full stop?
MR ROBERTS: Full stop.
GLEESON CJ: And then when he is cross‑examined, the cross‑examiner would say, “What were you doing in Melbourne?”, and at that stage he would say, “I object to answering that question”?
MR ROBERTS: That is right, and he would either say, “I object to answering it”, and he is compelled to, or he would say, if he had a legitimate privilege against self‑incrimination, if it was a witness, for example, the witness might say, “Well, I’m prepared to tell you, but I’d like a certificate because I object ‑ ‑ ‑
GLEESON CJ: That might be an example of a genuine objection.
MR ROBERTS: Yes.
GLEESON CJ: But what about the man who gets into the witness box and instructs his counsel to ask him where he was on the evening of 1 January and what he was doing on that evening, and the counsel on his instructions asks the question and he then says, “I object”?
MR ROBERTS: Your Honour is asking me the question that was the very matter that I put to Justice Howie. Surely it is a matter for the witness whether he tells us or not. It is his evidence. He can tell us what he wishes. That is the very submission that I put to Justice Howie which was rejected because in effect it was said “That’s not, in effect, what’s happening here”.
GUMMOW J: Is that in the transcript?
MR ROBERTS: Yes.
GUMMOW J: That passage between yourself and Justice Howie?
MR ROBERTS: Yes, it might take me a little while to find it. Page 75 I am told is the – yes, here it is, page 75, lines 35 to 40, his Honour debating about fact in issue, and then his Honour said:
I am against you on that. Now, I having determined that he is entitled to take a claim of privilege, what do you suggest I do after that?
I said:
It is a matter for him if he doesn’t want to tell us about it.
HIS HONOUR: Can I force him to tell us about it by granting him a certificate? Are you asking me if the Crown’s view of this matter in relation to the interests of justice as the Crown sees it –
So this is where the interests of justice point arose. We slid straight into subsection (6), so it seems, at this stage.
GLEESON CJ: I would have thought your point was raised at page 74, line 15.
MR ROBERTS: Yes, that is true, yes. The reason I am having - your Honour is putting these matters to me and these are matters that I was putting as reasons that we should not be there to start off with, but obviously as time has elapsed, these matters were held against the Crown and his Honour’s view in relation to that was we were in the section 128(8) on the particular question that was asked or the putative evidence that was referred to did not apply and we were within 128 territory because we had passed the threshold in subsection (1) and then we had moved straight into subsection (5), and that is ‑ ‑ ‑
GLEESON CJ: I know – I realise that I ask this question almost every time we get the Evidence Act in front of us, but is the heading part of the Act?
MR ROBERTS: It is not supposed to be, I do not think, under the – this is the New South Wales legislation, the New South Wales Act, and I do not think ‑ ‑ ‑
GUMMOW J: It is not part of the Act, but it can be looked at for interpretation, can it not ‑ ‑ ‑
MR ROBERTS: It can be looked at as – yes, as I understand it.
GUMMOW J: ‑ ‑ ‑ under the State Interpretation Act?
MR ROBERTS: Under the State Interpretation Act.
GLEESON CJ: The reason I asked the question was that the heading refers to privilege against self‑incrimination and I am just wondering what the privilege against self‑incrimination has to do with the case of people who adduce evidence as part of their own case.
MR ROBERTS: And that is what we say, nothing, your Honour, but ‑ ‑ ‑
KIRBY J: Does the ALRC Report cast any light on this?
MR ROBERTS: None whatsoever.
KIRBY J: Does it explain what its purpose was in providing this mechanism in section 128? Do we have the extract from the report?
MR ROBERTS: There is very little said about subsection (8) in our additional material. There is nothing said about subsection (8) in Report No 26, or nothing of any significance, but in Report No 38 on evidence, which is the second of the extracts in the material in the little book, if your Honours would go to page 11 at the top, paragraph 217 – this was in the second of the law reform proposals. The reconsideration of privilege claimed by a party – and your Honours can see there what it was that ‑ ‑ ‑
GUMMOW J: It talks about cross‑examination at line 6, does it not?
MR ROBERTS: Yes. Apparently the original proposal treated parties in civil proceedings the same as accused in criminal proceedings and the Law Reform Commission noted that that was not necessarily so. I think the Victorian legislation treated civil parties slightly differently, so that the proposal for 128 appears to have been changed purely to relate to criminal trials, but it is not very illuminating as to what they had in mind. But when we go to this history, which I would like to later, it becomes fairly apparent why the wording was chosen in 128(8).
I think we moved to this Law Reform Commission by your Honours asking me a question whether the Law Reform Commission envisaged such a situation happening, and clearly not, because it was never envisaged that 128 could be used where an accused, in effect, wants to give an excuse or present his evidence as to why he is not guilty of an offence and that being said to attract a claim for privilege against self‑incrimination. It has nothing to do with self-incrimination at all.
GLEESON CJ: Was this topic considered by Justice Campbell in the New South Wales Supreme Court in that case of Pathways Employment Services v West?
MR ROBERTS: I had looked at that, but I do not think – well, certainly 128(8) was not as far as I am aware.
KIRBY J: The issue is whether objection is a shield or can be used as a sword and, on the face of things, one would think it is purely a shield.
MR ROBERTS: Yes, but as I have endeavoured to suggest that there is an interpretation, and not that we necessarily adopt it. I mean, it does not concern us, I suppose, because if it does not relate to being, as your Honour put it, a sword, then it does not apply at all. All I am suggesting is that it is capable of being interpreted in such a fashion.
KIRBY J: What is the best way consistent with the pre‑existing law and the apparent objects of the Evidence Act for this section to operate in your submission? Do you go back to your submission at page 75 of the transcript? It just has nothing to say to this sort of situation.
MR ROBERTS: Well, obviously, yes, but I am only dealing with the criminal situation with an accused person.
KIRBY J: That is all we have here.
MR ROBERTS: Yes, but if your Honour is asking me more widely in an overarching situation, both civil and criminal cases, I do not think, from the Crown’s point of view, we would have necessarily a desirous interpretation of the section. It does not really matter to us, I suppose, but all we say, that whatever interpretation is given, it certainly does not apply to an accused giving his evidence of excuse. A privilege against self‑incrimination has never arisen in those circumstances and section 128(8) is purely reflective of the law that existed up until that time.
When someone says, in effect, “I want to tell you about my relationship with another person because when you understand the relationship you will see that I am not guilty of the offence”, I mean, clearly that must fall within facts that are relevant to the facts in issue or evidence of the facts in issue and therefore falls within 128(8). Even if it did not, there was no privilege in those circumstances that existed previously. Section 128 does not create a new privilege against self‑incrimination; it assumes that one existed beforehand. So for those reasons which we attempted to adumbrate before Justice Howie the respondent in this case had no legitimate claim for privilege and nor could he ask for a certificate in those circumstances to immunise his evidence.
GUMMOW J: Yes, the certificate was given though. What would be the consequence of this, that the certificate is a nullity because the necessary precondition in subsection (1) did not exist?
MR ROBERTS: Well, I suppose ‑ ‑ ‑
GUMMOW J: I just do not know what the consequence would be.
MR ROBERTS: No. Any act by a Supreme Court judge is not a nullity, I suppose, unless and until the court says that it is a nullity.
GUMMOW J: That is right. That must be right.
MR ROBERTS: Which is one of the reasons why we took the 5F appeal proceedings to argue the fact that if the, in effect, jurisdictional fact in subsection (1) was not there in relation to the claim, why then a certificate should not have been given, and the certificate, in effect, is a nullity or should be declared to be a nullity because he did not have a privilege against self‑incrimination in the first place and the section had no ‑ ‑ ‑
GUMMOW J: I understand your opponent to say 5F is not a competent proceeding to challenge that point.
MR ROBERTS: The Court of Criminal Appeal did not say that it was not. They said there may be some doubts, but we claim that our appeal does fall within section 5F. Indeed, there was not much else we could do at that stage.
GUMMOW J: That is what I am wondering, how else would you challenge it?
MR ROBERTS: I do not know. There was no other procedure other than some sort of administrative law challenge, I suppose. I am not quite sure how you would go about challenging and which court, indeed, you would approach if a certificate was given in criminal proceedings and you wanted to have it set aside or why you would want to have it set aside. I mean, it is a very odd situation that has arisen at all, but what we would endeavour to do after it was said that the certificate had application to the second trial and it was realised they did not have a certificate and went back to Justice Howie, we did what we could as we sought to challenge the very existence of the certificate and we saw 5F as being the ‑ ‑ ‑
GUMMOW J: There is another question too, whether Justice Howie was functus at the time he gave the certificate. The proceeding had finished.
MR ROBERTS: That is true. It was an administrative function that his Honour was performing, presumably, in giving the certificate. Now, your Honours might say, if it was an administrative function, what was I doing there ‑ ‑ ‑
GUMMOW J: That is your problem with section ‑ ‑ ‑
MR ROBERTS: ‑ ‑ ‑ and that is true.
GUMMOW J: I know, but the moment you concede it is administrative you are in trouble with 5F probably.
MR ROBERTS: No, I do not think so because, your Honour, our 5F appeal was against the granting of the certificate back in May 2003 and the issue of the certificate.
GLEESON CJ: Can I take you back to the first line of section 128(1):
This section applies if a witness objects to giving particular evidence –
So the certificate is to be given in advance of the evidence; is that right?
MR ROBERTS: Well, the objection is to be made in advance.
GLEESON CJ: I am sorry, is the certificate to be given, if it is given at all, in advance of the evidence?
MR ROBERTS: No, subsequent to the evidence.
GLEESON CJ: I see. The objection has to be an objection to giving particular evidence.
MR ROBERTS: Yes.
GLEESON CJ: It could not be, for example, an objection to giving evidence at all.
MR ROBERTS: No.
GLEESON CJ: Or an objection to giving evidence about your relationship with another person, could it? It has to be an objection to giving particular evidence. Now, you took us to the objection earlier on page 68 and it is an objection to what Mr Diez said to Mr Cornwell about the possibility of Mr Cornwell’s involvement in some illegal activity, right?
MR ROBERTS: That was what was said, yes.
GLEESON CJ: Was the objection later renewed?
MR ROBERTS: No.
GLEESON CJ: That is the only objection.
MR ROBERTS: That is the only objection. His Honour then said after further argument – your Honours will be aware that the question of the application of 128 was raised prior to 5 May, as your Honours are aware.
GLEESON CJ: All I am trying to do is identify the application of section 128 in the light of the opening words of section 128 to this case and what it applies to is what is said to be an objection to giving particular evidence.
MR ROBERTS: That is right.
GLEESON CJ: The only objection you have shown us is an objection to giving evidence about what Mr Diez said to Mr Cornwell about the possibility of Mr Cornwell’s involvement in some illegal activity.
MR ROBERTS: Yes.
GLEESON CJ: Was there ever any other objection taken?
MR ROBERTS: No, that is the only objection – if that was an objection, that was the only objection that was taken. Then the question was debated, amongst others, what should be the terms of a certificate, what evidence should be covered by it?
GLEESON CJ: Where do we see the ultimate certificate?
MR ROBERTS: The ultimate certificate ‑ ‑ ‑
HEYDON J: Page 228.
MR ROBERTS: Yes, 228 is the certificate.
GLEESON CJ: What is the particular evidence that is covered by the certificate?
MR ROBERTS: Well, this, indeed, is the point. This is one of the matters that we have been raising all along. We say that you have no idea what the certificate is supposed to cover or what his Honour had in mind, but can I go back to the transcript, if that helps at all? There is, of course, a judgment in relation to this. I will take your Honours to that in due course. At page 85 at line 8:
Yes, I grant him a certificate in relation to evidence that he will give in answer to any question concerning an involvement between himself and Diez and Lawrence and any other person in the supply or trafficking in narcotic goods between what dates?
So the dates were then worked out, but the question that your Honour the Chief Justice asked me in effect is which particular evidence is this, and all I can say is that is what his Honour had in mind and whether that constitutes particular evidence, we would have thought not, but that is what happened.
GLEESON CJ: But the way it seems to have proceeded is that the only objection the witness ever took was expanded in argument by his counsel.
MR ROBERTS: That is right.
GLEESON CJ: And his counsel informed the court that he wanted a certificate to cover what we ultimately see on page 228.
MR ROBERTS: Absolutely right.
GLEESON CJ: Once again, the question arises how that relates to the terms of section 128. Could section 128 apply in a case where a witness never said anything by way of objection but the witness’s barrister stood up at the commencement of the proceedings and said, “My client would like to give evidence about his involvement with Mr Diez in a different conspiracy to prove that the telephone conversations or the intercepted conversations relied upon by the Crown are misunderstood and I invite you to give my client a certificate under section 128 in relation to any such evidence”, and the judge says, with or without hearing argument, “Very well”. Is that a way section 128 can operate?
MR ROBERTS: We say not for the various reasons that I have given before, because 128(8) excludes it for a start; secondly, there was never a privilege against self‑incrimination in relation to that evidence – another point – and then the third reason is, is your Honour saying does the objection actually have to be taken by a witness before section 128 is engaged, and we say, clearly, yes.
GLEESON CJ: Well, it has to be an objection to particular evidence.
MR ROBERTS: To particular evidence, that is right. There needs to be some context in relation to the evidence that is foreshadowed. There is a reference in the – your Honours may have seen the more recent Law Reform Commission paper where this case of Cornwell is referred to and in the course of speaking about 128 before that reference to Cornwell the authors refer to the existing practice of taking an objection question by question and the desirability of having, in effect, a topic objection as opposed to taking it question by question.
Here we appear to have had a topic objection in such broad terms that we, the Crown, at least would have no idea what the certificate was supposed to cover and for what reason, which is why we are attempted to argue this at some length but to no avail before Justice Howie. So we have a certificate to protect him in relation to evidence “concerning an involvement between himself and Diez and Lawrence and any other person in the supply or trafficking in narcotic goods”, and what that is supposed to mean in the context of this case we just do not know. What our friends counter is, that is supposed to cover any question that – any evidence that the accused gives or gave that was related in some fashion to supply of narcotic goods or any overlap would be immunised.
When one looks at what it is that this certificate is said to cover – and could I go to that. If your Honours would go to volume 3 of the appeal book, page 1089. This is a transcript of the evidence that was read in the second trial, being the cross-examination, or parts, at least, or most of the cross‑examination of the accused which we wanted to tender and we had to tender the whole of the evidence, but the cross‑examination was what we wanted to get in.
Your Honours will see, if you just turn to some of the other pages, there are lines drawn in the margins. Those lines were drawn by the respondent’s then counsel, Mr Boulten, in the proceedings initially before Judge Blackmore to indicate those portions which it was said were covered by the certificate that his Honour issued. I have picked some pages perhaps reasonably at random just to show how it is said to operate, the ones that I have marked. If your Honours would go, for example, to pages 1118 and 1119. Most of this cross-examination was concerned with asking questions about what was said and what was meant in the listening device transcripts which were the eight listening device transcripts. These questions were asked in relation to a particular one, I am not sure which one ‑ ‑ ‑
GLEESON CJ: What is the page reference?
MR ROBERTS: Pages 1118 and 1119. Your Honours see the black line on the margin drawn by counsel saying these questions were covered by the ‑ ‑ ‑
GLEESON CJ: I do not have, I do not think – this is in volume 3 of the appeal book, the appeal book in the case of R v Richard Bruce Cornwell?
MR ROBERTS: Yes, pages 1118 and 1119.
GLEESON CJ: Thank you, I have it now, yes.
MR ROBERTS: Does your Honour see the lines that are drawn?
GLEESON CJ: I do, yes.
MR ROBERTS: So these are questions that were asked of the accused in relation to what he said and what appears in these listening device transcripts and on the tape. Just going to page 1119, these were questions that were asked, at line 30:
Q. And it was taking a while for you to sell it and get the money in, wasn’t it?
This is the cocaine that he had at the time.
A. It was out there in the market place, if you like.
Q. Yes and it wasn’t going quickly enough for Diez’ liking, was it?
A. No, he was right angry and aggressive about it.
Now, the next question is not said to be covered. The next question:
Q. And there was a very large quantity of cocaine coming wasn’t there?
A. There was supposed to be 125 sitting on an island waiting to come across.Q. Let’s not worry about which island –
Then the next question, but one we are said to go back into this covered by the certificate. According to the counsel for the respondent, we sort of move in and out of this depending upon whether there is any reference at all to current cocaine dealing which, as your Honours may have seen from the context, is inextricably linked with what was happening.
GLEESON CJ: Was the defence case at this trial that the Crown had the wrong conspiracy?
MR ROBERTS: No, the defence case was in part – it was twofold. I have to go back a bit because the defence case changed subtly in relation to the second trial but at the first trial the defence case was that ultimately the respondent did not agree to become a party to the conspiracy which we alleged.
GLEESON CJ: I am looking at page 1119, line 20:
at that stage, you had 10 kilos of cocaine . . .
And it was taking a while for you to sell it and get the money in ‑ ‑ ‑
MR ROBERTS: Yes.
GLEESON CJ: Was the defence case that some of the intercepted conversations that were misunderstood as revealing the conspiracy charged could in fact be explained by reference to that circumstance?
MR ROBERTS: I think only in relation to one conversation, but that was not the argument. The argument was, “Yes, I was selling cocaine. Yes, I was talking about bringing in the big one, 120 kilos, and yes, I was talking about how to pay for the ‘tools’, being the yacht, et cetera, but ultimately, no matter what I said in these conversations, I did not agree to be a party to the conspiracy and the others went ahead without me”. That basically was the – and allied to that was a line that, “In any event, I was never absolutely sure about the details of the conspiracy”, and there were a few pieces of evidence that were put in by the accused during the course of his evidence‑in‑chief to assist that argument.
GLEESON CJ: What was relevance of the evidence that the accused gave subject to this certificate?
MR ROBERTS: I do not know what the certificate was supposed to cover, your Honour.
GLEESON CJ: I will make myself clear. If the evidence of Mr Cornwell was irrelevant, it was simply inadmissible, full stop.
MR ROBERTS: That is right.
GLEESON CJ: The hypothesis of the argument about section 128 must have been that the evidence was relevant otherwise section 128 would not have arisen for consideration.
MR ROBERTS: One would have thought so.
GLEESON CJ: So my question to you is what was the relevance of the evidence, the subject of the debate?
MR ROBERTS: Your Honours, I have to go back to the nature of the Crown case and his Honour Justice Howie’s judgment in 57 NSWLR giving reasons for the admissibility of this evidence where it is explained in detail why it was and how it was that the evidence in relation to current cocaine dealing was relevant to the charge of importation. Could I take your Honours to that judgment?
GLEESON CJ: Yes, if you cannot summarise it.
MR ROBERTS: Well, there are a number of reasons given and there are additional ones. It may be very useful. I think we should go to it at some stage. It is in 57. If your Honours…..the appeal book, commencing at page 7.
KIRBY J: Are these the reasons that are published with 57 NSWLR 82?
MR ROBERTS: Correct, your Honour. If I just give the paragraph numbers so whoever is going to whichever ‑ ‑ ‑
KIRBY J: Yes.
MR ROBERTS: Initially, in relation to this decision the judgment concerns various provisions of the Evidence Act and how the listening device warrant was obtained, which is not relevant, but at page 93 of the judgment, paragraph 36, and I will read some of these to your Honours as to why it was and how it was that this evidence was admissible and what it went to:
The most controversial parts of the recorded conversations, which the Crown wishes to tender against the accused, are those from which a jury might infer that the accused is of bad character either in a general sense, in that he has been involved generally in criminal conduct in the past, or in a specific sense, in that he is involved in trafficking in drugs at the time the conversations take place . . .
While conceding that the conversations are generally relevant to prove the relationship between the accused and persons who are alleged to be co‑conspirators, Mr Boulten argues that parts of them are unfairly prejudicial . . . Cornwell and Lawrence operating a business in trafficking in drugs, the submission is that the evidence is tendency evidence . . .
Simply because otherwise admissible evidence reveals that an accused is generally or specifically of bad character, or that he may have committed uncharged offences, it does not follow that there is any basis for rejecting it.
Then his Honour refers to Harriman and the New South Wales decision of Quach. Paragraph 39:
The present charge is one of a conspiracy alleged to have occurred over a period of about four months. Clearly in such a case the conduct of persons alleged to be participants in that conspiracy over that period of time will generally be relevant to disclose their relationship with one another, and to place the conduct alleged against them as being in furtherance of the conspiracy in the context of what else they may have been doing over the relevant period. Evidence probative of those matters, which also discloses that a particular accused has committed uncharged criminal acts or is otherwise of bad character, will not be excluded on that account alone.
Then after the reference to Quach, in the middle of paragraph 40 and where it has got Quach and Harriman:
But it seems to me that in some respects the present is a stronger case than Harriman for the admission of evidence of other criminal activity involving drugs between Lawrence and Cornwell. In the present case the activity was occurring at the very time that the Crown alleges that these two accused were participants in a conspiracy to import a substantial amount of cocaine. The fact that conversations occurring during the alleged conspiracy, by alleged participants in it, that is Cornwell, Lawrence and Diez, tend to reveal that at the time they were involved in the business of supplying drugs, is in my view highly probative evidence of their participation in that conspiracy.
The relevance of that evidence does not depend upon tendency or propensity reasoning. It not only shows the nature of their relationship between the persons involved in the conversations, a matter highly relevant in proof of a charge of conspiracy, but it also discloses the facts and circumstances surrounding the conduct upon which the Crown relies to prove the charge.
Then it continues on as to why this evidence was relevant. Then towards the end of paragraph 41:
The evidence does not merely supply context or background to the specific allegations made by the Crown, although it does that, but it shows motive for the accused to participate –
Then there is further reference to Harriman, and at page 95, paragraph 44:
In my view, although the term “res gestae” appears to have fallen out of fashion after the introduction of the Evidence Act, the evidence of the accused Cornwell, being in the business of supplying drugs with two of his alleged co‑conspirators at the time the conspiracy alleged was on foot, falls into that class of evidence to which their Honours were referring in those two passages –
Harriman –
But even if it did not, the evidence is of such probative value as circumstantial evidence tending to prove their participation in the conspiracy, that it ought to be admitted . . .
In my view, the nature of the accused’s involvement in the trade of supplying drugs was so substantial and so proximate to the activity, which is the subject of the charge, that it supports an inference of his involvement in the conspiracy simply as a matter of common sense and experience.
So, for all of those reasons, the evidence of the listening device tapes was admitted and his Honour Judge Blackmore followed this judgment in the second trial in relation to the admissibility of the same evidence.
Your Honour asked me why was this relevant, this evidence? It was intermingled within the conversations that were recorded. It was relevant for all of those reasons and a number of other reasons which are not referred to in this judgment. One would have thought, perhaps, that if evidence goes in‑chief and is admitted in‑chief for these reasons, one would have thought that such evidence would, ipso facto, fall within section 128(8) of the Evidence Act and any explanation that an accused gives in relation to the same matters similarly would fall within that subsection.
That is what we contend and we say that really such a proposition is self‑evident. Your Honours, that is why this evidence went in in the first place and then when the accused came to give his evidence he was giving an explanation, in effect, as to when it was that he first met the man, Diez, and how it was that he became involved in the supply of drugs.
I may add we suggest that the actual evidence that he gave was false, in any event, because he was involved before he said that he became involved. According to the respondent, he did not become involved in the supply of drugs until some time after the listening device was inserted in his premises. It is plain and obvious that that is false by reason of various matters that are put to him in cross‑examination of which there is – of evidence. Obviously, this supply predated that and was, we would suggest, operative in about January, at least, when Diez went over to Colombia to make arrangements for the large consignment of cocaine.
Hopefully, your Honours, I have answered your Honour the Chief Justice’s question. You asked me why was this relevant? It is in an answer to this that the accused says, “Well, I need to explain my relationship with Diez and can I have a certificate, please, because this is going to involve me in both cocaine dealing and importation of cocaine?”
In those circumstances, his Honour has said, in effect – again, we are not quite certain what his Honour had in mind. Whether it was matters additional to the Crown case that his Honour had in mind or what, we are not certain. We say he should not have got a certificate in any event, but what his Honour had in mind we are still not certain in relation to that. In any event, he should not have got a certificate because he had no privilege but that is another story.
They were the circumstances, your Honours, in which the certificate was issued and then we had the cross‑examination which almost entirely centred on what was said and what it meant in the conversations which were the subject of the listening device tapes of which large portions were said to be covered by the claim to privilege and the certificate that was issued – the claim later, that is, before Judge Blackmore when he came to determine whether this evidence should be admitted in the proceedings and whether the claim made by the respondent’s counsel that 128(7) applied, in effect, immunising that evidence from the retrial proceedings and his Honour Judge Blackmore finding against us that 128(7) did apply to a retrial and it was at that stage that the respondent went before Justice Howie in presumably the administrative proceedings to obtain the certificate which he had not got because they omitted to obtain that certificate at the time that they were supposed to.
GUMMOW J: The section says that the court shall cause a certificate to be granted.
MR ROBERTS: Yes.
GUMMOW J: What does that mean? What is the court being referred to? The judge, is it?
MR ROBERTS: Yes, the court that says that there is a privilege and explains the position to the witness, that court is to provide ‑ ‑ ‑
GUMMOW J: Cause itself.
MR ROBERTS: Is to cause a certificate to issue.
GUMMOW J: Yes, issue by whom?
MR ROBERTS: By the court. Well, it must mean that. I mean, whether it is a matter of language ‑ ‑ ‑
GUMMOW J: We are not blaming you for drafting it.
MR ROBERTS: Your Honours, I cannot say anything about that, but that presumably is what it is supposed to mean, that a certificate is to issue by the court reflecting the fact that the court, in effect, has immunised that evidence so that it cannot be used in different proceedings ‑ ‑ ‑
GUMMOW J: The court was the judge and the jury, was it not?
MR ROBERTS: Well, that comprised the court, but the court presumably – I suppose certificates could certainly issue in relation to a witness giving evidence, so it could certainly have application – 128 can apply and does apply to criminal trials where a witness seeks or is given a certificate or is to be given a certificate, yes, and yes, your Honours, a court in a criminal case does comprise the judge and a jury, but I take it that there is provision in circumstances where it refers to a criminal trial, the judge is to give the ‑ ‑ ‑
GUMMOW J: Is there some definition of “court” in the Evidence Act or in the dictionary or ‑ ‑ ‑
MR ROBERTS: The New South Wales court I think is referred to, but in the dictionary ‑ ‑ ‑
GUMMOW J: Yes, it means an NSW court.
MR ROBERTS: Which I think in turn is defined as a court created by statute, I think it says.
GLEESON CJ: Do the words in subsection (7) “In any proceeding” mean in any other proceeding?
MR ROBERTS: We contend that clearly must be so. It must be different from the proceeding in which the certificate was given obviously, because the evidence is used in that proceeding by the Tribunal.
GLEESON CJ: If that is right, then the question is what constitutes an “other proceeding”.
MR ROBERTS: Precisely so, and in relation to that argument, we point out that the dictionary definition – there is no definition of “proceeding” but there is a definition of “criminal proceeding”:
criminal proceeding means a prosecution for an offence and includes:
(a)a proceeding for the committal of a person for trial or sentence for an offence, and
(b)a proceeding relating to bail -
and “civil proceeding” is defined as meaning:
a proceeding other than a criminal proceeding.
So when one looks at subsection (7), when it says “In any proceeding” presumably it is referring to both criminal and civil because it does not use the word “civil” or “criminal”, and when we read in there it must relate to a proceeding other than the one in which the certificate was given - so there are two concepts there - when one realises that a criminal proceeding includes a bail proceeding and a committal, why it would not include a retrial, we just fail to understand. I mean, one would think that that must be the very proceeding. If a criminal proceeding is more expansive than just the trial - it includes the bail and the committal - why it will not include a retrial is a matter that we just fail to understand. Therefore, if we are right in relation to that, we should win the case because it just does not apply to ‑ ‑ ‑
GUMMOW J: Can we just look at the grounds that are left unresolved by the Court of Criminal Appeal at the moment and page 1205 where five grounds are set out. Which are the ones that would be still in play that would have to go back from this Court for those remaining grounds to be dealt with? They dealt with 1.
KIRBY J: I think his Honour indicates his inclination on some of the others but does not finally deal with them.
GUMMOW J: Yes. Example is paragraph 106 on page 1236.
MR ROBERTS: A “no evidence” ground was dealt with and that was ‑ ‑ ‑
GUMMOW J: Which ground is that?
MR ROBERTS: This ground was dealt with. There was an inclination in relation to the matter that your Honour Justice Kirby just mentioned and the other remaining matters were not looked at ‑ ‑ ‑
KIRBY J: I think you agreed on the special leave that in the event that you succeeded, leaving aside the respondent’s application, that the matter would have to go back to the Court of Criminal Appeal.
MR ROBERTS: That is because those matters were not dealt with. That was our understanding of the ‑ ‑ ‑
GUMMOW J: I just want to be specific. Which points on page 1205 would be left for resolution?
MR ROBERTS: Your Honour, could I answer – could I give your Honour the written document because it is a bit – the grounds ‑ ‑ ‑
GUMMOW J: We have had this problem before where intermediate courts express inclinations. They are not charged to express inclinations. They are charged to make up their mind or not make up their mind.
MR ROBERTS: Yes, I need to write them down.
CRENNAN J: Paragraph 2 at the top of page 1206 explains ‑ ‑ ‑
MR ROBERTS: Grounds 1, 4 and 5.
HEYDON J: But the court did not deal with ground 4 because of paragraph 106. In paragraph 107 it did appear to deal with ground 5, briefly.
MR ROBERTS: I think that is right. Yes.
HEYDON J: Therefore 2, 3 and 4.
GUMMOW J: It looks like 2, 3 and 4.
MR ROBERTS: But there was a change in the grounds and that is why I wanted to ‑ ‑ ‑
GUMMOW J: I see. All right. The other ‑ ‑ ‑
MR ROBERTS: Your Honour, I am told there is one missing. I really need to look at that just to see which grounds ‑ ‑ ‑
GUMMOW J: We just have to be clear, that is all.
MR ROBERTS: Yes, your Honour.
GUMMOW J: The other thing I wanted to raise, if you go to your notice of appeal at 1247 that is based on 128(7) and 128(8). There is no ground on 128(1). What do we do about that having regard to what has fallen this morning in the course of discussion with you?
MR ROBERTS: Well, it falls within ground 3, I would have thought.
GUMMOW J: Ground 3?
MR ROBERTS: Possibly, anyway.
GUMMOW J: Yes.
HAYNE J: Was not intended to, but it does.
MR ROBERTS: Possibly, your Honour, yes.
GUMMOW J: Well, that seems comfortably wide.
MR ROBERTS: We hope so, your Honour.
GUMMOW J: Thank you.
KIRBY J: Mr Roberts, my recollection was that this Court has said that Courts of Criminal Appeal should deal with all grounds of appeal just in case when it comes here the matter has to be dealt with on another basis. Do you remember what those cases were? It was a course that, tedious though it was, I often felt obliged to follow in the Court of Criminal Appeal.
MR ROBERTS: My friend tells me it is James v The Queen but it has been said on a couple of occasions. There are other cases where matters have been sent back so that that practice was not followed by various Courts of Criminal Appeal in different States, so I am not sure.
KIRBY J: I mean, they are very busy and you do not want to force them to do things that are not necessary but it is a repeated problem.
MR ROBERTS: Yes. I suppose the assumption being that that was the end of the line in relation to a retrial would be ordered because it is very rare for the Crown ‑ ‑ ‑
KIRBY J: It is really a marginal cost, a marginal utility question for the occasion or utility of dealing with everything. You would impose a lot of burdens on courts of criminal appeal that are already very busy.
MR ROBERTS: That is what they would no doubt say.
KIRBY J: If you can find that authority, I would be interested to see what the court said.
MR ROBERTS: That is another thing that I will do if I may. Your Honours, I have covered quite a few of the matters that I wanted to cover. One of the matters I wanted to briefly refer to was a bit of background history, very briefly, in order – if I go there in relation to ‑ ‑ ‑
GLEESON CJ: Yes.
MR ROBERTS: Your Honours, the background to the wording in section 128(8) relates to privilege against self‑incrimination and accused persons giving evidence, so looking at the situation that evolved in relation to accused giving evidence and the protections that Parliament provided. The history is summarised in Cross on Evidence in the Australian on-line edition at Chapter 12, “Evidence by accused persons”, and there is a very brief reference in Brown v The King 17 CLR 570 at 587 to 589 in relation to the law as it developed enabling accused persons to give evidence, which of course they were not allowed to do at common law, and the protections that Parliament provided.
Just as a matter of history, I think, in 1891 the New South Wales Parliament provided that accused persons could give evidence on their own behalf but with the proviso that they could not be compelled and they could not be asked without the leave of the court questions about character. So those ideas were intermingled. Then the seminal legislation in relation to accused giving evidence was the 1898 English legislation – and I have copies for your Honours.
HEYDON J: This is a very important point from your point of view, is it not?
MR ROBERTS: It is.
HEYDON J: You say that until 1891 in New South Wales and an earlier date in South Australia and 1898 in England the accused could not give evidence.
MR ROBERTS: That is right.
HEYDON J: It was decided to limit the accused to give evidence. If the accused could claim the privilege against self-incrimination, it would be rather a pointless or unbalanced provision. Hence, we have to counterbalance it two propositions. On the one hand the accused cannot be generally cross-examined as to bad character but for the various gateways that were introduced, but on the other hand, to quote the Victorian Act in its present form:
A person charged and being a witness . . . may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.
Unless Mr Game can point to some other section in the Evidence Act 1995 capturing that theme, the only possible way in which it is captured is in 128(8). Therefore, though the words have changed, the general meaning must be the same. That is your submission essentially.
MR ROBERTS: That is right. While I am handing up the paper, I could also hand up section 413A of the Crimes Act which was not enacted until 1974. I do not think up until that time there was a New South Wales equivalent to the Victorian sections, but 413A was enacted in 1974 and if I just give your Honours copies of that because it is a bit hard to find since it is repealed.
KIRBY J: Where is that?
MR ROBERTS: It was in the Crimes Act 1900 (NSW), 413A. The tension that arose in relation to giving accused the right of being able to testify was that it thereby enabled questions to be asked of them by which they could incriminate themselves. So by enabling them to go into the witness box and give evidence there was obviously some waiver involved in the privilege against self‑incrimination. The tension then arose, usually in the context of character evidence, about what questions could be asked of them. For example, could one ask questions in relation to previous offences and the showing that they are bad character?
The English legislation and the Australian legislation which followed said, no, you cannot do that, but the way that the legislation has been interpreted – and perhaps for time purposes I will not necessarily go to the two cases we refer to in the submissions, in Makin in England in relation to this legislation and then in Attwood in the High Court in relation to the Victorian legislation. It was said in both cases, but particularly in Attwood, that if the evidence was relevant to proving the case, in effect, facts in issue, the fact that it may have also related to bad character or bringing bad character or a previous offence did not make that evidence inadmissible.
That has been the position, as we understand it, in Australia and always has been, even before Attwood, but Attwood made it clear that that was the position. So prior to the Evidence Act coming into being, the fact that – for example, in evidence of previous drug transactions which were not the subject of the indictment evidence was given of that matter as part of the Crown case, for example. There was no privilege against self‑incrimination in relation to that because it was admissible as part and parcel of the case.
The protection provisions that applied in similar sections to the English provision that your Honours have there in 413A of the Crimes Act did not operate because there was no privilege because, in effect, that had been waived by the accused going into the witness box. That was the position that pertained and that was the understanding on which Parliament enacted section 128(8).
GLEESON CJ: Could I ask you something about section 128 and the nature of the decision that the judge is required to make. Is it fair to say that subsections (1), (2) and (3) are there to deal with what might be called the ordinary case and that subsections (4), (5) and (6) deal with a less usual kind of case?
MR ROBERTS: Yes, I think that is so to some extent but ‑ ‑ ‑
GLEESON CJ: All right.Let us just concentrate on subsections (1), (2) and (3) for the moment, of the ordinary case.
MR ROBERTS: Subsection (1) appears to be the gateway.
GLEESON CJ: What I wanted to ask you was this. What exactly is it that the judge certifies? Is it simply a certificate that evidence was given pursuant to the procedure established by subsection (2)? What does the certificate certify?
MR ROBERTS: Exactly what your Honour has said, that evidence was given pursuant to that provision and then the consequence being subsection (7).
GLEESON CJ: Yes. Well, that certifying function is purely mechanical, is it not? It is just a recording of an event that has happened.
MR ROBERTS: That is right.
GLEESON CJ: And the consequence of that event is then set out in subsection (7).
MR ROBERTS: That is right.
GLEESON CJ: A judge who follows the procedure in subsections (1), (2) and (3) does not exercise any discretion, does he?
MR ROBERTS: About issuing the certificate?
GLEESON CJ: Yes, about anything.
MR ROBERTS: Subsections (1), (2) and (3), no.
GLEESON CJ: Yes. The certificate is simply there to record an event that has occurred ‑ ‑ ‑
MR ROBERTS: So that the person could then say, “I have the certificate”.
GLEESON CJ: It is there to record an event that has occurred. It is a purely factual account of what has happened.
MR ROBERTS: Yes.
GLEESON CJ: So the issuing of a certificate does not involve a judge deciding that the interests of justice require a certain course to be followed or that in the exercise of the judge’s discretion some course should be followed.
MR ROBERTS: Not in subsection (2), no.
GLEESON CJ: It simply records that a claim of privilege against self‑incrimination has been made and has been dealt with in accordance with the statute.
MR ROBERTS: Has been made and has been upheld. It has to be a bona fide claim to privilege. There are quite a few cases about that. I do not suppose that is a discretion to say, “Yes, you do have a bona fide claim to privilege”. Whether that involves a discretion or not I suppose is a matter of opinion but ‑ ‑ ‑
GLEESON CJ: Well, subsection (4) throws some light on this. Subsection (4), which is one of the more special provisions, deals with a case where an objection has been overruled and after the evidence has been given the judge thinks that the objection should have been upheld.
MR ROBERTS: That is right.
GLEESON CJ: So the procedure outlined in (1), (2) and (3) involves ruling on a claim of privilege against self‑incrimination and if the ruling is a positive ruling following the mechanical process of granting a certificate.
MR ROBERTS: Yes, your Honour.
GLEESON CJ: All against a background where it is related to particular evidence.
MR ROBERTS: Yes.
GLEESON CJ: And the ruling of the judge upholding or disallowing a claim of privilege against self-incrimination is either right or wrong as a matter of law.
MR ROBERTS: Yes.
GLEESON CJ: No discretion.
MR ROBERTS: Not in (2), no, but in (6) obviously there is some discretion involved. Interests of justice takes it ‑ ‑ ‑
GLEESON CJ: That is why I was concentrating on the ordinary case in (1), (2) and (3).
MR ROBERTS: Yes. Your Honours, briefly, given the history, we say approaching the matter in an overall context what we say is this. In the retrial before Judge Blackmore his Honour erred in ruling that 128(7) of the Evidence Act made the certificate which had been granted and issued by Justice Howie operable in those proceedings at all.
We say that for two reasons the certificate had no operation in those proceedings. Firstly, because the intention of issuing the certificate which was made clear certainly in the judgment that his Honour gave when he finally issued the certificate, if it be called a judgment, given that it is presumably an administrative proceeding, that it was never intended to operate to exclude any evidence being given in a trial on indictment for the offence in which the certificate was given in the first place. So, as a matter of construction of a certificate, the intention behind the issue of the certificate was not that the certificate could be used in any shape or form by this respondent to exclude evidence that he gave from being admitted in a second trial for the same offence. So for that reason alone we say it could not operate or should not have operated.
Secondly, that section 128(7) of the Evidence Act did not operate to make that certificate operable in the retrial. We say that the word “proceeding” – and I have gone through very briefly that argument, but we say that the proceeding obviously relates to a different proceeding, and this was the same criminal proceeding as the certificate was given for the purposes of that section and therefore did not operate at all. So there was no bar on the admissibility of the cross‑examination in the retrial.
Just as a matter of, perhaps, interest, there is a reference to Stewart given in our list of authorities and that was a case in which the High Court had occasion to rule on the tender in the second trial of cross‑examination given in an earlier trial. It is clearly admissible, although in that case some of it was cross‑examination as to character which was inadmissible but not for reasons that pertain in this case.
KIRBY J: This is Stewart 29 CLR 234?
MR ROBERTS: The 1921 case, yes, your Honour. So if we are right in those contentions, there was no prohibition to that evidence going in. It was clearly, we say, admissible evidence, otherwise it was clearly relevant evidence, extremely cogent evidence. If we are right in relation to that, then the Court of Criminal Appeal was wrong in upholding the appeal against conviction. So we say we succeed in relation to that. If, however, your Honours are against either of those two propositions and say the certificate did have operation in the retrial, then we say that the construction that was given to the certificate, which was the way that Judge Blackmore approached the matter, was correct. What his Honour in effect did was to say, “This is the certificate I have been given. I have looked at the relevant parts of the transcript in relation to the matter and I have looked at the judgment of Justice Howie in relation to what a fact in issue is in 128 of the Evidence Act”.
What his Honour said was, “I am by no means clear as to the intention of Justice Howie in issuing this certificate, but I look at the cross‑examination. In my view it clearly falls within 128(8) of the Evidence Act and therefore it could not be evidence to which the certificate related, therefore the evidence is admissible.”
GUMMOW J: Was there any regulation in New South Wales in force requiring the certificate to annex transcript?
MR ROBERTS: There is a form, I think, attached to the Evidence Act and I think there is a requirement that the transcript of the evidence is annexed. What was attached to this certificate was the whole of the evidence that the accused gave.
HEYDON J: Was it attached to the certificate? It does not say so. It just says evidence by Richard Bruce Cornwell on 5, 6, 7, 8, 9 and 12 May in relation to his involvement with ‑ ‑ ‑
MR ROBERTS: Well, I do not know if I have actually seen the certificate. I have a copy of it, but I presume it was on the original certificate, your Honours. I cannot answer ‑ ‑ ‑
HEYDON J: If that were the case, why did Mr Boulten have to draw lines in the margin at the second trial?
MR ROBERTS: Well, two reasons. Firstly, when the argument was before Judge Blackmore the question was, “What parts of the evidence in cross‑examination do you say were covered by the certificate which is to issue?”, or whatever stage we had reached at that stage. Mr Boulten went away and marked up the transcript in the fashion that we now see it. The second use which was then sought to be made of the marking was before Justice Howie when his Honour granted the certificate and Mr Boulten wished to argue that these questions were covered by his Honour’s ruling and my opposition to that course taking place and in the end his Honour said, “We will leave the matter of what evidence is covered to Judge Blackmore”, and that is in his Honour’s judgment after giving the certificate.
So if I could just come back to the overall position that I was putting. We say that if the certificate did have any operation at all in the second retrial then Judge Blackmore was correct to construe the operation of the certificate, inter alia, by reference to section 128(8) as his Honour did and he appropriately ruled that the certificate did not apply to the evidence that was sought to be tendered. We say the Court of Criminal Appeal was wrong in holding that the certificate did apply to that evidence or at least those portions of the evidence that were marked up in that document, in the cross‑examination document.
GUMMOW J: Assume the certificate had annexed just the marked‑up portions, as the regulations would seem to require, what would then be the position of the second trial judge? He would be saying the certificate was wrongly issued, would he not, in effect?
MR ROBERTS: Probably, yes.
GUMMOW J: Because 128(8) took the circumstances out of the Act really. Section 128(8) says the section does not apply, so no certificate can be given. Is the question of whether the certificate could or could not be given either because of subsection (1) or subsection (8) something liable to attack in a collateral proceeding? I would have thought it was.
MR ROBERTS: We discussed this earlier about what sort of collateral proceeding. The only one ‑ ‑ ‑
GUMMOW J: A retrial in this case, which perhaps is not collateral.
MR ROBERTS: No. It is a very odd position, I suppose. It is not a ruling in relation to evidence given in a previous trial or whatever because, as I understand it, Rogers’ Case and the cases that followed that, if there is a retrial because of whatever reason then the court is not necessarily obliged to follow the rulings.
GUMMOW J: If the certificate is just recording an historical event.
MR ROBERTS: Yes, that is so, if it is looked at it, but no doubt one says that is all it does, but it does not merely record an historical event because the whole idea of giving the certificate is that it is to have some work to do in some other proceedings and the question was, “Are these the sort of the proceedings it was supposed to have the work to do?” and we say no for the reasons that we have ‑ ‑ ‑
GUMMOW J: There are notions of issue estoppel running around too in this area.
MR ROBERTS: Yes. I think what your Honour is saying to me, if it did apply ‑ ‑ ‑
GUMMOW J: I just think this is a piece of inadequately thought out law reform.
MR ROBERTS: I have no comment to make in relation to that.
GLEESON CJ: Mr Roberts, in former times a common example of statutory provisions that used to require witnesses to answer questions that might incriminate them but immunised their answers against later adverse use were provisions in companies legislation dealing with examination of companies’ officers.
MR ROBERTS: Yes.
GLEESON CJ: A view used to be taken that in those circumstances it was necessary for a witness actually to claim privilege question by question. During the adjournment could you see if you could find any case which explained why it was necessary for that to be done? Sometimes the process used to be the subject of a shortcut and a witness would use a formula such as just saying “Privilege”, but the rule used to be, in those circumstances, that you had to take the objection in relation to a question, not in relation to some general line of subject matter.
MR ROBERTS: Yes, if I could look at that and other Acts, the Income Tax Assessment Act, they have the ‑ ‑ ‑
GUMMOW J: I think the Royal Commission’s legislation has the certificate idea in it as well.
MR ROBERTS: Yes. Certainly, as I understand it, at least, or my recollection is, it used to be said or it is said that it was – and that was the practice that one would say “Privilege” and you have a whole series of questions or answers, “Privilege”, and then the answer is given, and that was my understanding of how it used to operate. Whether that was merely a practice or whether – I am not sure.
KIRBY J: But that would be a case where the evidence is extracted from the witness over the witness’s desire not to give it.
MR ROBERTS: Yes, a compulsory examination.
GLEESON CJ: Yes. Where would we find most conveniently the best statement of the purpose of section 128? What was section 128 intended to add to the general law?
MR ROBERTS: The two Law Reform Commission documents that we have annexed. There is also an article in 59 Australian Law Journal 204 by a Mr Freckelton who was one of the Law Reform Commissioners. It is called “Witnesses and the Privilege Against Self‑incrimination” by Ian Freckelton. I have some copies if your Honours would like ‑ ‑ ‑
GLEESON CJ: Thank you.
KIRBY J: I think Mr Freckelton worked in the ALRC on the reference on evidence.
MR ROBERTS: He did, but I think there is nothing said at all about 128(8), just the general idea of why it is that 128 is there at all.
GLEESON CJ: What was the origin of this idea of certifying?
MR ROBERTS: Apparently, the general idea, as I understand it, was that there were, again, I think, often in the criminal context of people who the Crown wished to call as witnesses but who had a privilege against self‑incrimination and could not be called. There was a lot of disquiet in relation to that situation and it was to address, inter alia, that situation that the provisions of 128 were enacted. Apparently there was previous similar legislation that operated in the Australian Capital Territory. In their Evidence Act they had a similar provision about certification and I think there was also one in Western Australia – I am not familiar with it at all. But some of the States and Territories had this certification. So the idea was to, in effect, extract, if necessary, relevant evidence in cases from witnesses where previously merely claiming a privilege against self‑incrimination would mean that the evidence could not be given.
So that was considered to be a very important idea behind 128 that relevant evidence could be given in proceedings, in particular, criminal proceedings, and witnesses could not, in effect, hide behind this claim to privilege so that the evidence could be given. That, as I understand it, is one of the major reasons behind this and that is referred to both in the Law Reform Commission and in Mr Freckelton’s article.
GLEESON CJ: But in the ordinary case covered by, for example, section 128(2) “the court is not to require the witness to give that particular evidence”.
MR ROBERTS: Yes.
GLEESON CJ: So if there is a successful claim for privilege against self‑incrimination the witness can leave it at that. That is to say, claim privilege and the claim being upheld say nothing.
MR ROBERTS: Yes, but subsection (5) then cuts in. If it is in the interests of justice, the court can then say you have to give this evidence. I suppose whether he does or not is another question but at least you cannot hide behind that claim, but the quid pro quo is that the witness gets a certificate so that the evidence cannot be used against them in other proceedings.
GLEESON CJ: But subsection (5) only operates where it does not expose the witness to risk, if I can use that expression, in a foreign country.
MR ROBERTS: I think that is right, yes, because ‑ ‑ ‑
GLEESON CJ: What if it exposes the witness to risk in Victoria?
MR ROBERTS: Under the New South Wales Act?
GLEESON CJ: Yes. Subsection (7) only applies to proceedings in a New South Wales court.
MR ROBERTS: I am not sure if the word “foreign” is defined in the dictionary but I would not have thought ‑ ‑ ‑
GLEESON CJ: It actually says “foreign country”.
MR ROBERTS: ‑ ‑ ‑ “foreign” is usually applicable to another State.
GLEESON CJ: I am not suggesting it is. I am just asking you what the witness’s situation is if an objection raising a privilege against self‑incrimination is made, it is upheld, the judge thinks the interests of justice are such that the judge ought to require the witness to give the evidence, the judge requires the witness to give the evidence, the witness is given a certificate and next week the witness is prosecuted in Victoria.
GUMMOW J: It is particularly acute here, if I can add, because this is a federal trial, but nevertheless the New South Wales Evidence Act was picked up, was it not?
MR ROBERTS: That is right, not the Commonwealth one, but in any event ‑ ‑ ‑
GLEESON CJ: But he could be harassed for a federal – in another federal trial in another State court.
MR ROBERTS: Well, no, the fear here was the State offence of supply, not the federal offence of import.
GUMMOW J: It was a matter of construction ‑ ‑ ‑
MR ROBERTS: I am not actually sure even – there may be a reference to that in the more recent of the three Law Reform Commission ‑ ‑ ‑
GUMMOW J: Well, the Evidence Act (Cth) says “Australian court”, I think.
MR ROBERTS: Yes, I think there is actually something about that referred to, but it is a question of construction and also a question of whether in any event a Victorian court would give operation to the certificate, assuming one had it, when all sorts of arguments would then pertain, I would have thought. If you were then tried for an offence based upon that evidence, a stay application would be made and questions of admissibility and the like would be raised in those proceedings.
GLEESON CJ: But people who are in the drug business typically expose themselves to prosecution under federal laws and under State laws, prosecution under federal laws for importation, prosecution under State laws for distribution, for example. They are the prime example of people who do not clinically offend against one kind of law or another and they are the prime example of people who are at risk of being prosecuted, I should have thought, across different jurisdictions.
MR ROBERTS: Yes.
GLEESON CJ: At all events, this legislation with which we are concerned only immunises them in relation to proceedings in New South Wales courts.
MR ROBERTS: That is the way we read this legislation, yes. But again, I say that this was something that we did not – I raised in the Court of Criminal Appeal, not to much avail, but the question was - the whole argument in a way is rather distorted because what you were faced with was a major offence, in effect, of importing 120 kilograms of cocaine and a much more minor offence, which has never been charged, potentially under State law in relation to the distribution of whatever it was, 10 kilos or whatever they had, of cocaine.
Your Honours, whether in a circumstance where evidence is adduced of both of those matters to prove the larger offence, a prosecution could ever subsequently be launched using evidence that was given by an accused for the minor offence in the face of a stay application which presumably would be made is perhaps a moot point, but what I am suggesting is that the idea that the respondent in this case would ever face trial in relation to a supply offence is remote in the extreme.
GLEESON CJ: A possible point of view is that the reference in subsection (5) to the court requiring a “witness to give the evidence”, that is to say, the evidence referred to in subsection (1), underlines the importance of the opening words of subsection (1) dealing with a case where a witness is objecting to giving particular evidence.
MR ROBERTS: Yes. Your Honours, I think touched upon all of those areas. There is just one very brief matter that may be of some interest. There is recent English legislation in relation to evidence concerning bad character which has apparently caused a deal of – the whole issue of bad character in England is the cause of some concern and the Criminal Justice Act 2003 was enacted and there is a book called Evidence of Bad Character by Professor Spencer which has recently been published here. The point I wanted to make was this, that this is an Act dealing with how bad character could be admitted and when it should be admitted in a case, but, even in this legislation, the opening words of the section dealing with bad character, section 98:
References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which‑
(a)has to do with the alleged facts of the offence with which the defendant is charged, or
(b)is evidence of misconduct in connection with the investigation or prosecution –
Even in that legislation you have those opening words similar to 128 that have always applied. If you are dealing with evidence that goes towards the case, proof of the case, then it is not what bad character is concerned with. It is not what those other similar provisions were referred to and that sort of evidence has always been admissible. It just supports the proposition that we were making earlier that 128(8) is simply reflective of what the law has always been and still is in relation to the reception of relevant evidence, in effect, dealing with the offence. The provisos in the legislation commencing in 1898 and going on about evidence about bad character and the like deal with a different subject matter as referred to in Attwood and in Maxwell.
HEYDON J: Just going back to the question about what would happen if Mr Cornwell were prosecuted in Victoria, that problem, I think, is solved by section 128(10) and (11) of the Evidence Act (Cth) which says that if you
have been given a certificate under a prescribed State provision, a certificate has the same effect as if it had been given under the Commonwealth section. Section 128 of the Evidence Act 1995 (NSW) is a prescribed State provision.
MR ROBERTS: Thank you, your Honour.
HEYDON J: That gap is filled.
GUMMOW J: It is a law under 51(xxv) for recognition of New South Wales.
MR ROBERTS: Thank you for that. Those are our submissions.
GLEESON CJ: Thank you, Mr Roberts. Yes, Mr Game.
MR GAME: Thank you, your Honour. That particular anomaly in the New South Wales legislation is something that I think the Law Reform Commission is going to address. May I just make one point while it is fresh in my mind. The appellant complains and has previously complained that the evidence, the subject of the certificate, was not identified. That only occurred for one reason which was that the Crown actively sought to dissuade Justice Howie from identifying that evidence, annexing it, and then when he went back to Judge Blackmore he told him that he had succeeded in persuading Justice Howie not to do so in order that he could put in argument about how section 128(8) works.
GUMMOW J: Do you have a copy of the relevant regulation at the relevant time?
MR GAME: Yes, I do, your Honour. Can I just say, the regulation in question requires the evidence to be annexed, but it says that the certificate is not liable to be called into question by reason of its non‑compliance with the form. I will just hand your Honours the regulation.
GUMMOW J: Directory rather than mandatory?
MR GAME: Yes. I should say that it is part of our argument that there are actually only two decisions here that could be the subject of the exercise of judicial power in the strict sense which is a decision upholding a claim for privilege, one, and, two, requiring a witness to give evidence under subsection (5).
GUMMOW J: You have handed us up the regulation 2005.
MR GAME: Well, it is regulation 7 and Form 1 is the relevant regulation.
HEYDON J: But there was one in 2000. It may be in identical terms, but we have to be sure it was.
MR GAME: It is the only copy I could get in the library yesterday, but I have the old legislation and it is the same, but I will double check it at lunchtime. My apologies, your Honour.
GLEESON CJ: Where is the decision requiring the witness to give evidence?
MR GAME: There may have been some misconception about this. I will have to take your Honours through the history in a little detail. But when his Honour Justice Howie gave what I might describe as the main decision about the certificate, it is clear from the language he used in that judgment that he was giving a judgment to the effect that he would require the witness to give evidence.
GLEESON CJ: To give particular evidence.
MR GAME: Yes, to give particular evidence and what that particular evidence was, shall I say, very clear by the time his Honour gave that judgment, and I will explain in due course how that came about. But, yes, the main judgment might be misconceived in the sense that maybe – I do not mean by Justice Howie, but it may be misconstrued in the sense that it is thought of as being a judgment about a decision to issue a certificate. It is actually a judgment in which his Honour gives a judgment on whether it is in the interests to require Mr Cornwell to give the evidence about domestic trading. Can I say this, but there was ‑ ‑ ‑
GLEESON CJ: He was requiring Mr Cornwell to give evidence that his barrister was asking him to give.
MR GAME: Yes, but, your Honour, there is a history to this because what had happened was this. The Crown had led over objection evidence of domestic trading, and you can see examples of that on page 4 of our written submissions, and if you just take a glance at it you can see it is quite clearly not evidence of facts in issue in this case. Paragraphs 5, 6 and 7 are good examples of evidence which is not evidence of facts in issue in this case.
Now, Justice Howie had already given a decision admitting this evidence on what might be described as relationship or context. When this case was ultimately summed up for the jury – I will just give your Honours a reference and it is at appeal book 545 to 546, there is no need to go to it now - but in the summing‑up Judge Blackmore put it on that very basis and he made it quite clear that proving that material did not prove the case and failing to prove that case did not mean that they lost the case. So it quite clearly was not evidence of a fact in issue in the case.
Moreover, insofar as it has been suggested that there is some intermingling, in his judgment Justice Howie made it quite plain that, although there was some intermingling, it was reasonably discrete evidence which could properly be identified.
I should say this, I say that there are only two relevant decisions and they never were the subject of any appeal and the course of the trial and the unfolding events were set by that. May I give you an example. Mr Diez wanted the certificate to be granted, Mr Lawrence did not, and they were heard. They, incidentally, have outstanding appeals in which they no doubt will argue about this very issue. But the course was set that Mr Cornwell would give evidence and not only would give evidence but would be protected by a certificate in respect of evidence about domestic trading. He did not really have any – when I say choice, if he was to give evidence and if this material had been admitted in the Crown case then maybe his counsel would not ask him about questions in‑chief but the cross‑examiner was very keen to get at the domestic admissions.
If you look at the cross-examination you might think that the prosecutor is actually attempting to do the reverse of what he says, namely, he is trying to get at the admissions in respect of the domestic trading. So, as I say, the course was set in the trial and I will take your Honours through the history. First of all, we have his Honour Justice Howie’s judgment in which he has admitted this evidence of relationship or context. He has admitted all of the transcriptions even though there is a great deal of evidence about Lawrence and Cornwell in this domestic trading.
Now, at page 38 of the appeal book – and I should say where I am leading in this is that no point was ever taken under section 128(1) and for good reason because it was clear that the objection was taken and was bona fide. What happened ‑ ‑ ‑
GLEESON CJ: The objection being taken to evidence‑in‑chief, to a question in‑chief.
MR GAME: Yes, your Honour.
GLEESON CJ: I have no difficulty at the moment with understanding how section 128 works in relation to cross-examination of an accused person. I am just having a little difficulty at the moment relating it to evidence‑in‑chief of an accused person.
MR GAME: Yes, but, your Honour, if he had not been given the certificate he would have claimed the privilege and he would not have given the evidence. That is made abundantly clear, in fact, it is most unlike ‑ ‑ ‑
GLEESON CJ: I am not sure how a question of claiming privilege arises in relation to evidence‑in‑chief.
MR GAME: He can claim privilege on any subject unless it is evidence that he did an act, the doing of which, or had a state of mind ‑ ‑ ‑
GLEESON CJ: A claim of privilege is a claim of an entitlement to refuse to answer a question.
MR GAME: Yes.
KIRBY J: The word in the statute is “objection”.
MR GAME: Yes, but he ‑ ‑ ‑
KIRBY J: So how do you object to a question of your own counsel?
MR GAME: But he answered the question by giving an objection to disclosing of the material.
GLEESON CJ: An objection does not mean I do not want to do something, it is not a sort of emotional state.
MR GAME: No, your Honour, but what ‑ ‑ ‑
GLEESON CJ: It is a formal stance taken in the course of adversarial proceedings.
MR GAME: Yes, of course, but, your Honour, it was said by the judge to the jury “I will not go through the farce”, as it were, “of requiring him to object to every single question that is the subject of the certificate”. So that everybody knew that the objection was a real objection and it was really taken. When you look at what counsel said before and after you can see that they all knew what they were talking about.
GLEESON CJ: Mr Game, can we get away from the detail of this particular case and the events that went on at the trial to consider a matter of principle?
MR GAME: Yes.
GLEESON CJ: How does section 128 apply, if at all, in a case of the kind that was mentioned a little earlier this morning, civil litigation in which a plaintiff, for example, desires to give evidence of his earnings before a motor accident but cannot give that evidence without disclosing illegal conduct because he happens to make his living unlawfully? Where does section 128 cut in there?
MR GAME: The word “witness” by definition includes party, if you go to the dictionary. So section 128 speaks to a party. The policy and the intent of these provisions and for that purpose you could have regard to section 23 of the Interpretation Act (NSW), but the policy and the intention of this legislation was better that the person give the evidence than we, the court, never hear it. So the answer is, they are protected by that. They take the objection.
GLEESON CJ: When do they take the objection?
MR GAME: As soon as they are about to give answers in relation to the illegality, whatever ‑ ‑ ‑
GLEESON CJ: So the plaintiff’s barrister says to the plaintiff, “What were your weekly earnings before this motor accident?” and the plaintiff says, “I decline to answer that question on the ground that the answer may incriminate me” and, presumably, the defendant’s counsel says, “That’s fine by me”.
MR GAME: Yes.
GLEESON CJ: What does the judge do?
MR GAME: What happens then is that the judge says – sorry. If the witness objects, that is to say, “I won’t answer the question” or, “I decline to answer the question on the grounds that it may incriminate me” that is an objection, declining to answer the question.
KIRBY J: Now, if you stick with principle, as the Chief Justice asked, why does the alternative theory not work, that is to say that objection has its ordinary meaning which is an objection of a technical kind to the giving of evidence that the witness does not want to give?
MR GAME: Because the section is all about self‑incrimination and what we are talking about here is declining to disclose the incriminating material. If you would look at the Law Reform Commission both in volumes 26 and 38 the policy was that subject to the qualification in subsection (8), witnesses and parties be treated alike, so that that witness ‑ ‑ ‑
GLEESON CJ: Did they actually deal with this issue?
MR GAME: They deal with why - they do. I will just have another look at lunchtime. I was trying to pick it up before, but they deal with why they are not going to deal with them differently from each other, so to take your Honour the Chief Justice’s question, when that plaintiff’s partner in crime comes along to give evidence to support the loss of future earnings by reference to their criminal activity, that witness stands in exactly the same position as the plaintiff did on that subject and that is what ‑ ‑ ‑
GLEESON CJ: Not quite exactly the same position, because in the example that I have given, the plaintiff’s counsel, either on the express or implied instructions of the plaintiff, has asked the question.
MR GAME: Yes, but, your Honour, he has asked the question for the purpose of, shall one say, eliciting the issue as to whether or not the person is entitled to give evidence about it subject to the protection of section 128, and that is the whole purpose of section 128.
GUMMOW J: How does it work if the witness is the plaintiff and the plaintiff has no legal representation?
MR GAME: When the person started to give evidence, the judge would be obliged to tell the witness about section 128 and then if the witness gave the evidence the judge in retrospect would be obliged to give the certificate if the judge had refused the claim at first instance because subsection (4) requires that.
GUMMOW J: That talks about overruling an objection.
MR GAME: I know, but say the judge had said, “Well, I’m not going to uphold the claim at this point”, then he realises that he or she made a mistake, under subsection (4) then they would be obliged to grant it.
GLEESON CJ: That treats the concept of objection as formalistic or ritualistic, does it not?
MR GAME: Yes, but, your Honour, it is in a sense formalistic and ritualistic because what you are doing is endeavouring to trigger the protection of section 128. That is the whole purpose of it. It must be so because what it contemplates is that you will engage in an inquiry in relation to an accused person in the very position of Mr Cornwell which is, “Is this evidence of a fact of the doing of a thing which is a fact in issue, or is it not?” You cannot actually engage in that exercise unless you raise the issue in what your Honour described as a formalistic way.
GLEESON CJ: You may be right about that, but if you are right it means, does it not, that this legislation had a very far‑reaching purpose and made a very far‑reaching change to the law. It conferred upon people a right to give evidence to their own advantage of criminal conduct in which they had engaged and immunised them against the consequences of that.
MR GAME: Yes, it did that because it put all parties in the same positions as witnesses and the only stopgap was section 128(8). Yes, that is the effect of this legislation ‑ ‑ ‑
HEYDON J: There is not a word to that effect in the two Law Reform Commission reports.
MR GAME: No, your Honour, but there is a word to the effect that they, as I recall – I will just have to check it over lunch – I am pretty sure that they deal with this issue about dealing with parties or accuseds in a discriminatory or different way and they resile from that and deal with everybody in a unitary way and the outcome of it is, in our submission, a plain and natural outcome of the actual application of this legislation and if it were not then you would not be giving proper effect to the meaning and scope of section 128(8) which, as I will come to in my argument, is a far more restricted form of words than the 1898 legislation and far more restricted than the 405A legislation.
HEYDON J: There is not a word about that either in the Law Reform Commission reports.
MR GAME: No, your Honour, there is not, but there is plenty to say in the Act about what a fact in issue is and, in our submission – I am really jumping forwards in the argument here because I was hoping to give your Honours a bit of history before you adjourn – but what we do say is that subsection (8) does not even say being evidence of a fact in issue. It says something even more constrained than that which is “did an act” or “had a state of mind” the doing of which.
So that in these, shall I say, the Smith v The Queen Case in which your Honour the Chief Justice presided, the evidence of identification in the police station if the accused said – I am changing the facts a bit – “I am not that person in that photograph”, that might in the evidentiary sense be a fact in issue, but it is not evidence that the person did an act or had a state of mind. So that is an example of something even more narrow than evidence of a fact in issue.
GLEESON CJ: I think Judge Howie’s decision turns on a distinction between facts in issue and facts relevant to facts in issue.
MR GAME: Yes, your Honour, but that is a distinction and he pulled into consideration sections 55, 56 and 94, and I will take your Honour to that part of the argument in a little detail after lunch, but basically, section 55, when it speaks of facts – I will have to look at the words. I will come back to that after lunch - but a contextual examination shows that there are facts in issue and there are facts relevant to facts in issue. What the Crown is really arguing in this case is that the only protection that subsection (8) would give you would be in relation to what was described as purely issues of credit, or it would give you no protection at all because subsection (8) would be redefined so that it said evidence which is relevant. So that subsection (8) would be an empty letter and Parliament could never have intended subsection (8) to be an empty letter.
The appellant has to go that far in this case because nobody, including Judge Blackmore, was suggesting that this evidence was evidence of a fact in issue. He simply said he accepted what Justice Howie said about that and he simply said that this was evidence that went to or assisted in establishing facts in issue. So much must be plain otherwise the evidence would never be admitted under section 55.
Turning from that, may I take your Honours before lunch to a little bit of history. In the trial before Justice Howie this evidence of the domestic trading with Lawrence had been admitted over objection. Then at appeal book page 38 we see what Mr Boulten has to say about the subject, who, incidentally, your Honour the Chief Justice, was counsel in both trials.
GLEESON CJ: I got an impression, maybe wrongly, that practically the totality of the prosecution case against your client consisted of evidence of intercepted conversations to which he was a party.
MR GAME: Yes.
GLEESON CJ: Do I take it then that when you talk about evidence of domestic trading, you are talking about evidence of conduct revealed in those conversations?
MR GAME: Yes, that they were actually on a day‑to‑day selling in the domestic market. They were discussing counting money. They were telling who they were selling it to and who it was coming from. Now, none of those things, unless they were in a very special context – and Mr Boulten conceded that, shall I say, if it was both a fact in issue and not at the same time then it would not be protected, and Justice Howie also made it plain that if it was, “I was not involved in conspiracy A but conspiracy B”, that also would not be protected by the certificate. So everyone was very clear in the trial about what it was that they were discussing, which is Mr Lawrence and Mr Cornwell selling on a day‑to‑day basis cocaine and from time to time with Mr Diez.
I was going to go to the history, but just dealing with that question, this case is made slightly confusing, but unnecessarily so, by the fact that it is a conspiracy count, but in fact the only true facts in issue are whether or not, shall I say, the fact of the making of the agreement and the fact of the intent to make the agreement. They are the facts in issue in a conspiracy. Overt acts are not facts in issue. Overt acts by their very nature are things that people do in furtherance of a conspiracy, so they would not be facts in issue in a conspiracy case.
At page 38 on 30 April, as Mr Roberts said, this trial having been going for some months, Mr Boulten flagged an issue, and we would say legitimately and appropriately so. He said:
can I flag an issue just to get some guidance about the procedure ‑ ‑ ‑
GUMMOW J: Line?
MR GAME: Line 20 in the lines that are provided in – he said:
I expect Mr Cornwell to give some evidence. I expect that he would wish to object to giving evidence about the distribution of cocaine in Sydney where it was the subject of some of those discussions that has gone into evidence, and I would be seeking a certificate under section 128 in relation to that. At some stage your Honour will need to consider what procedure should be undertaken when we come to it.
The exchange goes on and then at line 38 ‑ ‑ ‑
GLEESON CJ: Mr Boulten is seeking what they call a ruling.
MR GAME: Yes, but, your Honour, he did not get a ruling, but he got an indication that his Honour would, in fact, give him the certificate. When I say – this is, shall I say, in a discretionary sense – it is far too late to be looking at a trial that took place a year before, one has to bear in mind that it is not this trial that was the subject of this appeal and one really cannot undo what the people in goodwill were attempting to resolve in the course of that trial which affected everybody, including Mr Diez and Mr Lawrence. Then at line 38 he says:
It might have some considerable bearing on whether or not he should give evidence. If he stands before the prosecution for very serious criminal charges which have not been charged because of lack of evidence –
and that is a matter that the Law Reform Commission referred to. So that, in a sense, there is a symmetry about this and the symmetry is that if you are giving evidence about facts in issue you will not be exposed to prosecution, but if you are not giving evidence about facts in issue and they are uncharged acts you will be exposing yourself. That is the symmetry in a very tight and constrained way which section 128(8) seeks to set up.
Now, the symmetry might be undone in a particular case but it is not undone in this particular case, in our submission. Now, he takes the issue up again at page 59 at line 40. He says:
I want to talk about what evidence the accused is going to give about the distribution of drugs, and if it is the case –
he is talking about his opening to the jury –
that he is likely to receive a certificate I can speak with confidence and freely do my opening about that evidence. If, though, it is not likely that he will receive a certificate then that will determine a different approach in the opening and might lead to a reconsidering of whether or not he should give evidence.
GLEESON CJ: Now, just pausing there. Receiving a certificate or the giving of a certificate is a purely mechanical act, is it not?
MR GAME: Yes, your Honour. When they say receiving a certificate, most of the time they are talking about either of two things: (1) of whether or not the claim for privilege will be upheld or (2) whether or not, if one gets to it, he will be required to give the evidence under subsection (5). In every instance in section 128 where there is a reference to the giving of a certificate, it is a purely mechanical act. “The court is to cause” and it appears each time.
Now, I mean, I made this point in the written submissions and I will make it again. The prosecution have never really sought, except in this collateral way, to get at the making of the claim for privilege or the requirement that he give the evidence. All they seek to do is somehow to get at the quashing of the certificate which is a roundabout way of doing what they did not do at the time if they objected to this course.
GLEESON CJ: There was never any doubt, was there, that there was some particular evidence at least that would tend to prove that your client had committed an offence against or arising under an Australian law? That would have been obvious from the tapes, would it not?
MR GAME: Absolutely, your Honour, there is no doubt about that. This is again a diversion, but your Honour the Chief Justice raised this issue about whether subsection (5) was or was not the ordinary course. In my experience, subsection (5) is really the ordinary course because what happens is the witnesses come along and say “I do not want to give evidence and, look, this will expose me in Belgium or Holland and, look, this will also expose me in Victoria. I do not want to give the evidence.” That is the day‑to‑day way in which this particular section is fought out.
GLEESON CJ: Yes, I understand that in relation to witnesses, but what about accused?
MR GAME: Well, this is a very unusual situation because this, I think, is the first case where this was actually applied in relation to an accused person.
GLEESON CJ: Yes, I must say I have never encountered this problem before.
MR GAME: Yes, but, your Honour, Mr Boulten, with respect, was presented with a formidable forensic problem that had to be addressed and had to be addressed with the judge and if the Crown is right in these proceedings, there is nothing to stop them from now prosecuting Mr Cornwell for domestic supply based on what he said in his evidence.
GLEESON CJ: Is that a convenient time?
MR GAME: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.20 PM:
GLEESON CJ: Yes, Mr Game.
MR GAME: Thank you, your Honour. Two matters that arose before lunch that I will return to, one the regulations. We have the relevant form. There is a slight difference in the wording but the form is the same and the regulation is ‑ ‑ ‑
GUMMOW J: Well, do you have copies?
MR GAME: I have copies, yes, your Honour. I will just provide those to your Honours. Your Honours will see there is one change, but otherwise it is the same. The other thing is there are some extracts in the Law Reform Commission material which may be of assistance and I will come back to those when I have developed what I have to say in a little more detail.
Now, I was in the process of taking your Honours through what happened in the trial before Justice Howie and I was at page 59 and one of my purposes is to show that an objection was taken under subsection (1), but that is not my only purpose. My other purposes, among other things, are to show that what was done before Justice Howie was regularly done, that his Honour came to the right decision and that even if that not be the case for discretionary reasons it is far too late to be revisiting what Justice Howie did and really the only ultimate question in this case for Judge Blackmore was to apply himself to the certificate which Justice Howie had granted, which his Honour did not do. So returning to Justice Howie, at page ‑ ‑ ‑
KIRBY J: Would that be correct if in fact there was a legal flaw in the grant of the certificate in the first place?
MR GAME: Yes, it would still be the case because Mr Cornwell gave his evidence and the parties proceeded in the trial before Justice Howie on the ‑ ‑ ‑
KIRBY J: It is a sort of estoppel argument, is it? It is not founded in the Evidence Act, not founded in a true certificate, not founded in a lawful certificate under the Evidence Act, it is founded in some principle of fairness in the conduct of the trial.
MR GAME: Your Honour, it is not really ‑ ‑ ‑
KIRBY J: I am not asking that unsympathetically because I do understand what you are saying.
MR GAME: Not really, your Honour, because if one looks at it this way, that certificate that was granted is valid until by some process something is done in relation to it. Judge Blackmore had one job to do which was to address himself to the terms of the certificate. That he did not do. But because the trial had proceeded before Justice Howie in the way I am outlining, it is far too late, as it were, for the Crown to turn around at the appeal of Mr Cornwell when the only issue before Judge Blackmore is to apply himself to the terms of the certificate.
GLEESON CJ: Was not the issue before Judge Blackmore the admissibility of the evidence?
MR GAME: Yes, but the only question for Judge Blackmore – I am really jumping forwards here, but the only question for Judge Blackmore was to apply himself to the terms of the certificate and ask himself whether or not the evidence that was identified to him was caught by it.
GLEESON CJ: That assumes that the proceedings before Judge Blackmore were proceedings to which section 128 applied.
MR GAME: Yes, your Honour, that is absolutely right. That is a different issue and, in my submission, that is the only issue that truly arose.
GLEESON CJ: And it also assumes that section 128 had application to the evidence sought to be tendered before Judge Blackmore.
MR GAME: Well, not necessarily, your Honour, because by the time you get to Judge Blackmore he is not concerned with section 128(8) at all.
GLEESON CJ: But he is only concerned with section 128(7) if section 128(8) applies. If section 128(8) never applied ‑ ‑ ‑
MR GAME: At all, period.
GLEESON CJ: Yes.
MR GAME: Yes, I would agree if it never applied at all.
KIRBY J: Just before you make that concession, I thought you said to me earlier even if Justice Howie should not have given the certificate the fact is that he did.
MR GAME: Yes.
KIRBY J: He was a judge of a Supreme Court, he is a superior court judge, his acts judicially are cloaked by validity until set aside and therefore he gave it, it was valid when given, it is still valid until this Court sets it aside, and the present respondent gave evidence on the faith of the certificate as given.
MR GAME: Yes. I should clarify this and I am sorry if I sound as though I am backsliding, your Honour the Chief Justice.
KIRBY J: Do not worry about that.
MR GAME: If it were the case that on its construction none of the evidence fell within the terms of the certificate, then the accused loses, but if any relevant part of it falls within the terms of the certificate, it is no longer for Judge Blackmore to even turn his mind to what section 128(8) means.
GLEESON CJ: We began this morning’s discussion with the observation that according to the opening line of section 128 this section only applies in certain circumstances. Part of section 128 is subsection (7) and if the section does not apply then subsection (7) does not apply and the certificate has nothing to do with anything.
MR GAME: That is true, your Honour, but it is for Justice Howie to decide if the claim under section 128(1) is properly made and he decided that.
GLEESON CJ: But the issue that arose before Judge Blackmore arose when the prosecution sought to tender evidence that Mr Cornwell had given at the first trial. So the issue that Judge Blackmore had to decide was the admissibility of that evidence. For the purpose of deciding the admissibility of that evidence you say he had to consider section 128 and he had to apply section 128(7).
MR GAME: Yes, but what they actually did was this. They started out by saying, “You are bound by everything that Justice Howie does, including in relation to this certificate”. Then Judge Blackmore gave a judgment in which he said, “Well, I am satisfied that these are proceedings to which subsection (7) applies”. Then he said, “But that is not the end of it”, and he canvassed a different interpretation of subsection (8) which was no part of his function.
GLEESON CJ: Yes, but he was doing it all in the context of dealing with an attempt to tender the evidence of what had been said at the first trial and an objection to that tender.
MR GAME: That is correct.
GUMMOW J: Why did you say section 128(8) had nothing ‑ ‑ ‑
MR GAME: To do with Judge Blackmore?
GUMMOW J: Yes.
MR GAME: Because when ‑ ‑ ‑
GUMMOW J: Because that is another jurisdictional question.
MR GAME: Not for Judge Blackmore, because when you get to ‑ ‑ ‑
GUMMOW J: It says this section does not apply. It has to be read with (1). They are both cast in the same fashion.
MR GAME: He has a certificate under subsection (7). The certificate says evidence of X description cannot be used against him. If it is a proceeding, then Judge Blackmore does not, as it were, review Justice Howie’s determination that the evidence was not a fact in issue before him. That is not part of his function.
KIRBY J: As well as that, as I understand it, your argument is that in the practical events that occurred once Justice Howie gave his certificate, whether he should or should not have given it, it purports to be given under section 128 and once he gave it then, and only then, did your client give the evidence, and that therefore he was acting on the faith that a certificate under the section could be given and was given by a superior court justice.
MR GAME: Yes, your Honour.
KIRBY J: And, therefore, as a matter of basic fairness, it should not now retrospectively be found that the judge was not entitled to give the certificate because things have moved on. The witness has given the evidence on the faith of it being a certificate under the section.
MR GAME: Yes, your Honour.
KIRBY J: Now, quite apart from 128, is there any general discretionary principle for the fairness of the conduct of criminal trials that you can invoke in such a case? I said to you that I am not unsympathetic to the suggestion that it is unfair to your client. If it had not been done by a Supreme Court judge, then I would not be so concerned, but it is done by a Supreme Court judge and on the faith of what a Supreme Court judge has done, your client has acted, allegedly now to his detriment. I just feel anxious and unsettled about that evidence then being available against him.
MR GAME: Yes. Your Honour, can I say that the fairness issue really strikes in this case because, because of Judge Blackmore’s way of, shall I say, revisiting the whole issue, this meant that Mr Cornwell could not give evidence at all in the second trial and the Court of Criminal Appeal regarded that as a quite compelling discretionary factor in Mr Cornwell’s favour. On a general level, this Court has recognised – and the precise scope of it is obviously a matter that might be worked out in years to come, but in cases such as Dietrich it is recognised in the trial process the right of an accused person to a fair trial according to law, and that is the kind of principle that we would bring into application in this situation.
I would say this, using it against Mr Cornwell contrary to the terms of subsection (7) is no different in substance than prosecuting him. It is exactly the same. It is being used against him. It is in a different context, but it is being used against him.
HEYDON J: What was the Crown to do? I mean, the crucial event was on 5 May, page 85, when Justice Howie said, “I grant him a certificate”. What he was really doing was making a ruling antecedently to granting a certificate which he did not do for many months. But was the Crown to appeal at that point if it was dissatisfied with what had happened?
MR GAME: Well, it could have because it had a judgment or order.
HEYDON J: It could have, but thousands and thousands of times appellate courts say that criminal trials are not to be disrupted by interlocutory appeals lightly.
MR GAME: Yes, but, your Honour, shall I say there are two judgments or orders. One is the finding that he was entitled to claim privilege and its scope; two, that he would be required to give evidence. Now, the Crown actually ended up taking a neutral position in relation to the second and it only opposed the first and it took a neutral position, in my submission, because it saw that it could use this evidence against Diez and Lawrence. So the Crown is the one that is, shall I say, sitting on its hands and making the most of what was a very messy situation for three accused persons.
GLEESON CJ: How long had the trial been going at the time the event referred to by Justice ‑ ‑ ‑
MR GAME: Many months, your Honour. It could have been three and a half months, I am not certain. What I am attempting to expose is to show that both defence counsel and the trial judge acted in an entirely appropriate way in relation to this issue at first instance and that is why I am taking your Honours through the actual course of the events. As to whether the Crown should have appealed, it may be an academic thing to say, but that was the appropriate point for it to do so.
HEYDON J: The Court of Criminal Appeal probably would have said, “No, leave is refused, but if this adverse ruling goes anywhere you can deal with it as of right in due course”.
MR GAME: Yes, but the point is that he gave the evidence and he was cross‑examined on it and it was used.
HEYDON J: What you are saying is to render immune from appeal such rulings. That cannot be right.
GUMMOW J: Is not your problem, Mr Game, that in subsection (7) you read the phrase “a certificate under this section” as meaning a certificate expressed to be given under this section?
MR GAME: Yes.
GUMMOW J: That is the problem. Why was the second judge in the District Court shut out from determining whether there was a certificate given under this section?
KIRBY J: It involves a judge of the District Court saying that the certificate which on its face, given by a judge of the Supreme Court, is under the section is not under the section.
MR GAME: Yes, your Honour, but also what Judge Blackmore purported to do was not to – he was invited, shall I say, to ignore completely the certificate and he did so. He was invited to ignore the certificate on the basis that if he sat down and read section 128(8) so that where it says “did an act the doing of which is a fact in issue”, if that was re‑construed to mean any relevant evidence, that is to say facts that went to facts in issue, then nothing was caught by the certificate and therefore all the evidence could get in. So what is happening is ‑ ‑ ‑
GUMMOW J: Can we get one thing out of the way?
MR GAME: Yes.
GUMMOW J: The expression, “NSW court” includes all sorts of courts, does it not?
MR GAME: Yes.
GUMMOW J: You cannot construe this Act differently, depending on whether a certificate is given by a magistrate or a Supreme Court judge, can you?
MR GAME: No, your Honour, that is so, but by the time it came to Judge Blackmore it was not for him to ask himself whether a certificate had been given under this section because the terms of the certificate said it had been given under this section and they were given in terms of Form 1, as required, so it would be very curious if the true situation ‑ ‑ ‑
GUMMOW J: There is whole lot of law about jurisdictional error, Mr Game, and books written about it and that is the sort of area where we are in, we are in subsection (1) and subsection (8).
MR GAME: No, I appreciate that, your Honour. If I could just go back to – I should say also that Judge Blackmore did not address himself to the question, “Has a certificate been given under subsection (7)?” He did not frame his judgment in those terms at all.
GUMMOW J: That is true.
MR GAME: So then at page 59 at line 44, as Mr Boulten said, it may lead to a different course, a reconsideration of whether or not he should give evidence. Then at page 61, line 24, his Honour asked the Crown his position then his Honour said:
You see it is this my view if Mr Cornwell were asked questions in relation to the involvement of cocaine or other drugs, he would be entitled to take the claim of privilege.
CROWN PROSECUTOR: Again, I would wait and see what the question is.
HIS HONOUR: . . . that 128(8) is very restrictive and much more restrictive than the common law –
Then the discussion proceeds and then at page 63 Mr Boulten says what he is going to do, that is to say, what he is going to do in order to seize formally the issue of the application of section 128 to this case. That is lines 8 to 20. Then the evidence is given and the point arises which we came to before which is page 68, line 40 ‑ ‑ ‑
GLEESON CJ: Just before you pass from page 63, Mr Boulten at line 5 on page 63 announces the course that he proposes to take.
MR GAME: Yes.
GLEESON CJ: Is that a course that is commonly taken, that is, “I will call” him, and:
In the very early stages of his evidence‑in‑chief I will ask him a question. He will decline to answer that on the grounds it might tend to incriminate him.
So there is no doubt that this has all been worked out between Mr Boulten and his client, Mr Cornwell.
MR GAME: Yes. Well, your Honour, with respect to witnesses this is the way, shall I say, it always happens.
GLEESON CJ: No, I am not talking about witnesses. I am talking about an accused person at a criminal trial. His counsel announces to the judge that he has – the counsel and the client have made an agreement between themselves. “This is what I am going to do. I am going to call him. I am going to ask him this question and he is going to decline to answer my question.”
MR GAME: I understand that, your Honour, but what he is trying to seize is the issue about whether or not Mr Cornwell is going to be able to, shall I say, answer that part of the Crown case which has been tendered addressing domestic trading. That is a real, legitimate, forensic concern. There is no solemn farce about it whatsoever. It is a very serious, and in my submission, legitimate way of raising the issue before the judge and the judge comes back and proposes that maybe they should have a voir dire. That is at page 71. That is after the objection is taken at 69. Then the exchange continues and you see at page 74, line 40, his Honour indicates the kind of things he cannot refuse to ask questions about and then there is some argument about what the scope of the provision is and the judge says at line 40 on 75, “I am against you”.
Now, that is the critical ruling in the case. That is to say he is satisfied that he is entitled to make a claim.
KIRBY J: What page is that?
MR GAME: Page 75, line 41. Then he says to the prosecutor, “What do you suggest I do after that?” The judge then turns to this issue, “Can I force him to tell”. It seems that the judge is moving to subsection (5) at that point. Over the page, the judge asks the prosecutor what he has to say about that. Then the prosecutor says, “it is not in the interests of justice” to get a certificate and then he declines to assist the judge further. That is what happens at that point. But what one sees when one goes to page 77 is this ‑ ‑ ‑
GLEESON CJ: But what the prosecutor says on the bottom of 75 and the top of 76 seems to be based upon the notion that there is some discretionary power to either grant or refuse a certificate.
MR GAME: Yes, your Honour.
GLEESON CJ: But you ask yourself whether it is in the interests of justice to give a certificate. It is not what the section says at all. Giving a certificate is a purely mechanical exercise to record that something has happened.
MR GAME: Yes, absolutely.
GLEESON CJ: A certificate, as I understand it, is a piece of information for some later tribunal.
MR GAME: I agree with you entirely, your Honour, but my point is that decisions are being made, shall I say, adverse to the accused in terms of what he has to establish when in fact all he has to do is walk through the open door in subsection (2).
GLEESON CJ: If you look at section (5)(c), it is not a question whether the interests of justice require that a certificate be given. It is a question of whether “the interests of justice require that the witness give the evidence”. Giving a certificate is the making by the judge of a formal record that certain things have transpired at the hearing, as I understand it.
MR GAME: Yes, but, your Honour, these are all points that I am attempting to make. I agree entirely, this is the point I am attempting to make which is nobody is giving the judge terribly much assistance but the judge is bona fide sitting down and trying to address himself to what he should or should not do. Defence counsel is appropriately attempting to protect his client’s position and the Crown is, we will see shortly, prevaricating on what he actually wants to happen. Then the Crown says here, today, that you should somehow review in some exercise what happened before Justice Howie.
We go to page 77. At page 77, what the judge is thinking, in my submission, is that if he does not give him a certificate – this is at line 18 – he will not get to give the evidence. He has moved straight to subsection (5). Mr Boulten says that is going to be embarrassing because he will be saying ‘I object, I object”, question after question, because he is now in the witness box and, despite the indication, even if Mr Boulten stops asking questions, the prosecutor is going to get stuck into him over this evidence because he has now exposed himself.
So then, on the exercise goes and then at page 79, the other parties come into the case and start making arguments about whether the certificate should be granted. Mr Diez’ counsel wants it. Mr Diez’ counsel is Mr Young, that is 79, top of 80; Mr Waterstreet is Mr Lawrence’s counsel, he does not want it. His Honour ultimately takes into account what they said.
Then at the bottom of page 83, the Crown makes a fairly critical concession which is that evidence about distributing would actually be protected by the certificate. We see that at line 52. Then his Honour is very interested to hear that. He says, “What do you say about those because it is going to come up?” Then the prosecutor says, “but who cares who he distributed to drugs to or not.” Then his Honour says, “I would have thought any evidence”. I might say that that is a very good bit of the evidence that we are talking about in this case is that very evidence of distribution. Then the judge says:
I would have thought any evidence by Mr Cornwell of his arrangement with Mr Diez as to the supply of cocaine generally regardless of who it is to, is a relevant fact before the jury but it is not a fact in issue. We have passed that bar . . .
do you say I should grant a certificate or not -
The Crown then declines to put submissions about that subject.
Now, the Crown might have assisted by telling his Honour what he thought the section actually meant, but again he has declined to assist the judge. Then the judge gives his judgment and we see that at page 84. What appears at page 85 which I will return to is the exchange that ‑ ‑ ‑
GLEESON CJ: Where do we find that separate judgment?
MR GAME: That separate judgment starts at page 91. Now, this judgment is the reasoning that is at the heart of what his Honour Justice Howie did. May I take your Honours through it briefly. You will see – and this may be an appropriate time as I go through to digress to some of the sections - his Honour sets out section 128(8) in paragraph 5. Then in 6 ‑ ‑ ‑
GLEESON CJ: Well, in paragraph 1 he defines the issue:
An issue [h]as arisen as to whether he is entitled to claim the privilege against self incrimination in respect of evidence that he would give –
You could perhaps expand that a little by saying an issue has arisen as to whether he is entitled to claim the privilege of self‑incrimination in respect of questions that his counsel by arrangement with him is going to ask him about his relationship.
MR GAME: Well, yes, but again, your Honour, this is a legitimate and, in my submission, serious context for his Honour to be determining this issue, but may I also add – I was going to come to it in a little while – but paragraph 18 makes it fairly clear that his Honour thinks he is engaged in an exercise of determining whether he should be required to give evidence under 128(5), and he speaks more than once in that paragraph of requiring him to answer the questions.
GLEESON CJ: But what does it mean to require somebody to answer a question that his own counsel is asking him?
MR GAME: He is taking an objection and he is taking it, shall I say, bona fide to it being disclosed without protection of a certificate about domestic trading. His counsel could do two things: ask him now at this point no questions on the subject, in which case the prosecutor would fire straight into it; or, two, attempt if he was allowed to do so by the judge to, shall I say, pass that evidence and explain it away and put his defensive case, but he is not going to do that if he does not have the protection of a certificate. That is what he is saying. So it is not as if his counsel would ask him meaningless questions; it is a serious contextual issue that has to be dealt with by counsel and the judge and by ‑ ‑ ‑
GLEESON CJ: Because what he is trying to do is avoid having to deal with this issue first in cross‑examination.
MR GAME: That may be part of it, your Honour.
GLEESON CJ: He wants to get his version of these events over to the jury in his evidence‑in‑chief, if he is allowed to.
MR GAME: If he is allowed to, yes, your Honour. But, as I say, does one unscramble the egg many years later?
GUMMOW J: The point the Chief Justice just raised with you is thrown up by the third sentence of 19, is it not, on page 97. There is the interest.
MR GAME: Yes, but that is the very interest that the Law Reform Commission identified as the interest, which is that people get to give their versions.
GLEESON CJ: No, he is going to get an opportunity to give his version of these, but what he wants to do is give it first under questioning from his own counsel. If he goes into the witness box, there is no doubt that he is going to be invited by somebody to explain these conversations and what is happening here is what you describe as a forensic exercise, the purpose of which is obvious. It is to ensure that he gets his version out under questioning by his own counsel in‑chief before the prosecutor is at his throat.
MR GAME: Yes, but my submission is that section 128 facilitates that process.
KIRBY J: You are in furious agreement with the Chief Justice. It is just that you see the section as giving this facility and the question is whether the word “objection” and the context of the section rather suggests that this is adverse and embarrassing or unwanted evidence that the person will only give over objection and, in the circumstances, get a certificate that, as it were, overrides an objection, whereas if you want the evidence, you are not really objecting to it.
MR GAME: Again, that is not an issue that was ventilated at the trial. All “object” means is object in the context of the self‑incrimination privilege, that is, decline to answer. That is all “object” means in that context. It does not mean anything more than that.
KIRBY J: You say it was not ventilated at the trial, but it is a question of law. Normally, even in the final court, you can raise a new point of law unless to do so would cause procedural unfairness. Now, are you asserting that there is a procedural unfairness here to allow this view of 128(1) to be raised in this Court for the first time?
MR GAME: Yes, I do, but, your Honour, even if I, shall I say, lost along the way, I would still succeed when it came to the cross‑examination. Just because he took the point in‑chief does not mean the same proposition applies to what happened in cross‑examination.
KIRBY J: I do not quite follow that.
MR GAME: Well, your Honour, if the course the Chief Justice outlines, which is that he did not give any evidence about this in‑chief, then the prosecutor would then start cross‑examining him, then he would object, seriously object. So that is why I say, again for discretionary reasons, you would not, as it were, entertain a point about whether an objection was truly taken when the people at the trial all thought that it was seriously being taken.
GLEESON CJ: That is exactly the way the privilege against self‑incrimination would operate in practice before section 128, is it not?
MR GAME: Yes.
GLEESON CJ: You would make up your mind whether you wanted to go into the witness box or not and, if you did not, that was it.
MR GAME: Yes.
GLEESON CJ: If you did go into the witness box, then you would say nothing about a lot of these matters and wait for the inevitable, which was cross‑examination by the prosecutor, and at that point you would take the privilege.
MR GAME: Yes, your Honour, but you would not have had the protection of subsection (8), you would have had the protection only of a section which said if the evidence was relevant you could be asked about it.
GLEESON CJ: Not only that, but if your claim for the privilege was upheld, the consequence would simply be that ‑ ‑ ‑
MR GAME: You did not give the evidence.
GLEESON CJ: There was nothing said about it.
MR GAME: Yes, that is correct. So then looking at the judgment, I was going to take your Honours, and I will take your Honours to certain paragraphs. Paragraph 6 on page 93 is about section 55 and section 55 is brought into this because we are concerned here with what fact in issue or the doing of something which is a fact in issue is in section 128.
But section 55 makes relevant things which are also capable of rationally affecting the probability of the existence of fact in issue. So that you can have facts relevant to facts in issue and that is where Justice Howie was founding his reasoning and, with respect, it is entirely correct. If it were otherwise, then section 55 would merely mean evidence is relevant if it is relevant and then you would go to section 56 and it would mean evidence that is relevant is admitted, so it could not mean that.
So then one goes on, and his Honour makes a point, again about, shall I say, the unity of the Act. In paragraph 10 he makes a point about section 94 and 99 is a notice provision, but the point about 94 at paragraph 10 is, if fact in issue there just means relevant, then the whole part has no application whatsoever, has no work to do, so again, a contextual use of the words, “fact in issue”.
Towards the end of my submissions I will pass you some texts where fact in issue has been discussed and I will not address them in particular detail, but they support that distinction. Smith v The Queen is addressed too and the approach of this Court in that case. The reasoning at paragraph 15, which is unassailable and was not disputed or questioned by Judge Blackmore, line 3, the evidence:
of the alleged importation in the trafficking of narcotic goods is not a fact in issue.
So his Honour has made a finding, as he must, about how section 128(8) works in this situation. Then his Honour says:
In my view, the accused Cornwell is entitled, notwithstanding s 128(8), to refuse to answer a question –
and that is what his Honour is saying. That is, of course, what an objection is, in relation to –
the ongoing –
I have added those words, but –
ongoing distribution of narcotic goods at or about the time of the alleged –
Importantly, he says at paragraph 17:
He is not, of course, entitled to refuse to answer questions in relation to the importation of 120 kilograms of cocaine on The Flaning or any other importation –
So if he says it is not importation A but it is importation B, then his Honour thought that that was not protected because of 128(8). That may or may not be the case, but it is a finding that I do not need to deal with. Then he goes on, an important sentence:
Notwithstanding that the two matters are to some extent intertwined, that is his involvement in the ongoing supply of drugs and his involvement in a conspiracy to import drugs, they are separate and distinguishable.
Then what his Honour is doing at paragraph 18 ‑ ‑ ‑
HEYDON J: Paragraph 17 ends with a sentence that says “The accused should be able”. It sounds as though the judge had some idea of what the law should be and is reading 128 to conform with it.
MR GAME: Yes, I will come to it later, but the Law Reform Commission seemed to be very heavily weighted on the idea that you should be able to ‑ ‑ ‑
HEYDON J: You keep referring to the three words “Law Reform Commission”. I really would like to know which paragraphs you are talking about because they bear very close analysis.
MR GAME: Can I do that a bit later, but I will, yes.
HEYDON J: Yes, certainly.
GLEESON CJ: Is there a typographical error on page 91, line 24?
MR GAME: Line 24?
GLEESON CJ: Yes. Why is this called a certificate under section 128(8)?
MR GAME: It is a mistake, but I do not think ‑ ‑ ‑
GLEESON CJ: What should it be?
MR GAME: It just should be whether or not (a) the claim to privilege under section 128 should be upheld and (b) whether or not the witness should be required to answer the questions under section 128(5). That is what it should say. It should say (6), sorry, yes. Yes, it is a typographical error. It should say subsection (6).
KIRBY J: Is the theory of your client’s conduct of his defence that he is not guilty of the offence as charged, conspiracy to import, but he was by his own admissions guilty of trafficking domestically in cocaine?
MR GAME: Yes, your Honour. The Crown’s case was – and it is ultimately perhaps more subtle at both sides, but the Crown case was that this was a precursor to entering into a conspiracy to import 120 kilograms.
KIRBY J: Yes, that was feeding the market.
MR GAME: But the defence gave his evidence, talked about the conversations and said that he defensively, shall I say, admitted that he had been involved in the domestic trading but said that things went sour in relation to that.
GLEESON CJ: The prosecution have done him a big favour by prosecuting him for this conspiracy because by doing that they have immunised him in the events that have occurred against prosecution for the offences that he admits he committed of internal drug trafficking.
MR GAME: Yes, your Honour. Yes, that is correct.
KIRBY J: Well, subject to the Crown being able to prove it by its own objective evidence, that is to say the recordings.
MR GAME: Yes, your Honour, but the Crown were not being nice to ‑ ‑ ‑
GLEESON CJ: But they have immunised him against the use of the recordings in the events that have happened.
MR GAME: Yes, but they were not being nice. They were doing it ‑ ‑ ‑
GLEESON CJ: No, I am not saying they were being nice. I am saying that as things have fallen out, on your argument, if it is correct, the Crown have done him a big favour.
MR GAME: Yes.
GLEESON CJ: They have produced the consequence that no one can now prosecute him for the offences which we know from his own evidence he has committed, because they charged him with the wrong offence.
MR GAME: That may be so but, your Honour, the whole point is that when he gives evidence the provision works so that he gives evidence – he is not protected in relation to facts in issue because he already has the protection of the charge.
GLEESON CJ: Yes, he gave evidence reluctantly, as in the story, “Don’t throw me in the bramble bush”.
MR GAME: Yes, your Honour, but the reason why the prosecution charged him with conspiracy and not with something else was so that they could have a joint trial of Mr Cornwell with all the others, not for some other reason. They wanted a joint trial on what they saw as the, shall I say, major Commonwealth offence that was picked up.
GLEESON CJ: Yes, I am not suggesting that the Crown were corruptly trying to immunise him.
MR GAME: No, but, your Honour, they wanted all the evidence in about the domestic trading. The question is, can Mr Cornwell give evidence in his case addressed to those issues but not put himself at risk for future prosecution in relation to the evidence he gave about the domestic trading, and we say section 128 is specifically designed to protect him in respect of that. The fact that it is a retrial is, as it were, a side wind of this question and that then raises a discrete question about section 128(7).
GUMMOW J: Why did you say the typo on page 91 should have been 128(6)?
MR GAME: Because his Honour appears to have ‑ ‑ ‑
GUMMOW J: Section 128(6) is linked to 128(5), is it not?
MR GAME: Yes. The reason is because his Honour thought he was doing two things: (1) determining the claim for privilege; (2) determining whether or not the witness would be required to answer the questions on the subject.
GUMMOW J: Required?
MR GAME: Under subsection (5).
GLEESON CJ: Why could he not be prosecuted tomorrow for domestic trading with the Crown using against him the evidence contained in the tapes, not the evidence given before Justice Howie?
MR GAME: They could, subject to one thing, which is that they have not done it for many years, but that is irrelevant to my ‑ ‑ ‑
KIRBY J: I did not hear the answer?
MR GAME: They could, subject to one thing that they have not done it and there would be, shall I say, abuse of process type arguments but the answer is, yes, they could, yes, there would be nothing ‑ ‑ ‑
KIRBY J: That is what I suggested earlier.
MR GAME: And in the Court of Criminal Appeal Mr Roberts did not disavow the notion that he could use this evidence, that is to say the evidence the subject of the certificate.
GLEESON CJ: There is an ambiguity there. If you are right, they could not use the evidence that he gave about the tape‑recorded conversations before Justice Howie.
MR GAME: Insofar as it concerned domestic trafficking. May I say this, and I have said this before, but it is only the efforts of Mr Roberts that have prevented specific identification of which evidence is caught by the certificate. Now, that is the judgment of Justice Howie on this subject. Now then the parties go back to – if the parties go back, we are back at page 85 and at page 85 Mr Boulten asks for the certificate and his Honour says at line 16, “I grant him a certificate” and then he sets out what it addresses. Now, at line 32 – and this is important, in my submission – his Honour says:
Mr Crown, I have indicated the width of the certificate I propose to give to Mr Cornwell. Do you have anything to say about that?
CROWN PROSECUTOR: No, your Honour.
Now, again, taking into account the imprecision with which some things were expressed in this case, what his Honour is asking is how far – that is to say, “What is the scope of the evidence protected by my ruling? Will you help me, Mr Crown?” “No.”
GUMMOW J: A certificate under what subsection?
MR GAME: Subsection (6).
GUMMOW J: In respect of, what, the judge then requiring your client to give evidence‑in‑chief?
MR GAME: Yes, but, as I say, insofar as there – but it is in‑chief but it also covers cross‑examination and it is intended to do so. When one comes to page 88, the jury are brought in and his Honour tells the jury that he has given Mr Cornwell a certificate and then he says he has granted the certificate and he says:
This relieves Mr Cornwell of having to take the objection every time somebody asks him about his relationship with Mr Diez or any person in the distribution of prohibited drugs or narcotics which were then present in Australia, nothing to do with the importation, and that if he did answer those questions, as I understand he is prepared to do, the certificate would be issued and he would be given the immunity that the certificate gives him.
GUMMOW J: That displays a misunderstanding of the section, does it not?
MR GAME: It does but, your Honour, the point of it is that he ‑ ‑ ‑
GUMMOW J: It is not a discretionary exercise.
MR GAME: No, quite, but he is communicating to the jury that he is not requiring Mr Cornwell to take the objection question by question.
GLEESON CJ: Those two people mentioned a little up the page, Mr Gladman and Mr van Bommel, they were witnesses, were they?
MR GAME: Yes, they were immunised Crown witnesses – I am sorry, only Gladman. I am just being reminded of something. Just one question about your Honour Justice Gummow’s question about what the certificate was under, I had overlooked the ‑ ‑ ‑
GUMMOW J: It talks about subsection (2), does it not, as well?
MR GAME: Yes, but in paragraph 25 of his judgment he says – and I had overlooked this:
it is in the interests of justice . . . in support or against the Crown case that Cornwell should be required to answer questions –
So he is clearly contemplating that it is given under subsection (5).
GLEESON CJ: The problem seems to be that this expression “granting a certificate” was used as a compendious expression to describe the entire process involved in making a decision under subsection (5) and then granting a certificate, whereas, in truth, the granting of a certificate is a purely mechanical act required to be performed to record something that has happened, not the exercise of a discretionary power at all.
MR GAME: No, your Honour, but what that means in the context of this case is that there is only one question in relation to Justice Howie which is was he correct to uphold the claim for privilege in respect of the claim made under section 128(2).
GLEESON CJ: What seems to have happened is that for convenience after the trial had been going for three and a half months and where there were multiple accused and a jury waiting a procedure was adopted, partly in the interests of enabling Mr Cornwell to have the opportunity to get his explanation off his chest before he had a cross-examiner at him, and this is the course that resulted.
MR GAME: Yes, but that paragraph I just read makes it plain that it goes further than that, evidence for or against the Crown. That is to say the Crown could use it and the Crown did use it both against Mr Cornwell and aggressively against Mr Diez and Lawrence in this case. Now, the other thing about page 88 is when asked by Judge Blackmore as to whether or not he had taken up the issue with Justice Howie about the objection being taken question by question, Mr Roberts said, “I didn’t get a chance”, but he had many, many chances to put his position and declined on all of the occasions when it was put to him except the first.
When one goes from there to what happened, nothing further was said about the certificate. Then we come to the trial before Judge Blackmore. If the Court could turn to page 9 of our written submissions, what happens there is this. The Crown begins by saying, “You are bound by Justice Howie, including in relation to this certificate”.
Judge Blackmore then gives a judgment which appears at page 192 and the judgment that Judge Blackmore gives is about what “proceedings” means in subsection (7). That judgment runs from page 192 to 197. His Honour concludes in this judgment that the proceedings covered the proceedings before him and we submit that that interpretation is clearly correct.
GLEESON CJ: Do you agree that the words “In any proceeding” in subsection (7) must mean in any other proceeding?
MR GAME: Not necessarily, your Honour.
GLEESON CJ: Can they include the proceeding in which the certificate is granted?
MR GAME: It is possible. One reading of it they include the very proceeding, in which case you would have to give a direction that the evidence could not be used against him when he gave it.
GLEESON CJ: I think we are going to have to face up to that question ourselves, so can you explain to us why that is.
MR GAME: Yes, can I suggest that there are three possible interpretations of this section. One is that subsection (7) does not speak at all to the actual giving of the evidence when the witness speaks it, so it is past tense. It is, in effect, speaking to the future, but it is not – one of the readings of subsection (7) is that it does not speak at all to the very giving of evidence itself. You do not ask yourself whether it is being used against them or not. That is the certificate that, shall I say, protects them in the future.
Now, incidentally, whether it is this interpretation or any other, the meaning of “previous representation” is relevant to the interpretation of this question because the evidence only comes in if it comes in as an admission and “previous representation” picks up the word “proceeding”, if you go to the meaning of the word “previous representation”. So there has to be, shall I say – “admission” is defined in the dictionary and “means a previous representation”. Then:
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding –
So the Crown only gets this in on the basis that it is not, shall we say, the same proceeding because it cannot get it in as an admission unless it is, shall I say, a previous proceeding because it will not be a previous representation.
GLEESON CJ: Can I interrupt you to ask you something that has nothing to do with your present argument. It is only to do with the progress of the matter, Mr Game. I had rather assumed in relation to your special leave application concerning unreasonableness of verdict that both parties had put the substance of their submissions in writing on that special leave application and that there was little, if anything, that they would want to add by way of oral argument; is that right?
MR GAME: Well, with this proviso, your Honour. I will add to it this – and I may have to do it by showing you what the submissions were, but I want to put a submission that the appropriate course taken in relation to ground 5 is to uphold the appeal, not determine the issue and remit it for further consideration by the court for the reason that the issue of whether or not the verdict was safe was not properly addressed by the Court of Criminal Appeal. I wish to add that submission.
GLEESON CJ: All right. We will come to that at the end of your argument that ‑ ‑ ‑
MR GAME: Yes, but I just have to show you a couple of things to see if that submission is made good. But apart from that, that is correct. So when one looks at subsection (7), it could mean that subsection (7) is not speaking to the actual giving of evidence, that is to say when Mr Cornwell did it the first time, but it does speak to any proceeding which will be the proceeding before Judge Blackmore.
The second interpretation is that it includes the proceeding itself, that is to say it includes the very giving of evidence in the proceeding, and that would be, shall one say, the natural reading, but it is has some very uncomfortable aspects to it in a contextual sense, but that would be the natural interpretation of it. But it would mean that in the case of an accused person you would have to give the jury a direction that the evidence is only to be used in a particular way and it cannot be used against him.
The third interpretation is that you would read into subsection (7) – this is the interpretation that the Crown advances – the word “other” proceeding. Well, we are not concerned that that interpretation might be adopted because, in our submission, clearly enough what took place before Judge Blackmore was another proceeding. One can see that from the very fact that the evidence was sought to be brought in as a previous representation, that is to say in another proceeding. But it is also different parties, a different court and a different indictment, and one would be stretching it, for example, if one were Mr Diez or Mr Lawrence, to suggest to them that this was the very same proceeding. So, whatever interpretation is adopted of subsection (7), we submit that we are comfortably protected by any of those readings of the provision.
GUMMOW J: Can you explain why the phrase in subsection (7) is “cannot be used” rather than “cannot be admitted”? Is it postulated it can be admitted for some purposes but not used for this purpose?
MR GAME: That was what I was alluding to a moment ago, which is that you would admit it, but you would say this is a very odd situation because this is normally speaking to witnesses and it is not talking to people who would be concerned about it being used against them. But what you would do is you would admit it but then you would say to the jury, “But it can only be used in a particular way”, but that would not assist the Crown on a retrial without seeking to have it admitted as admissions, that is to say use it against the person. But, yes, your Honour, that interpretation is possible and on that interpretation you could read the words “in any proceeding” to mean the very proceeding ‑ ‑ ‑
GUMMOW J: That is what I wonder.
MR GAME: Yes, that does enable that interpretation. So that is the judgment on section 128(7), but at the very end of the judgment his Honour said that that is not the end of it:
[You] can tender such evidence provided that it is evidence intended to prove the matters outlined in subs (8)(a) or (b).
HEYDON J: Is that a typographical error there? Instead of “intended to prove”, should it be “tending”?
MR GAME: Yes, your Honour, I am not sure, but when you look at the next judgment you will see what his Honour had in mind. So what happened then was the Crown said, “Well, we have lost the argument about “proceeding”, but now we will argue that Justice Howie is correct”. Then if you look at our submissions, you will see at page 10 the Crown then took the consistent position that Justice Howie was incorrect and that Judge Blackmore should not follow him, we see at page 11 of our submission. Then they went back to Justice Howie.
Mr Boulten, armed with a document which is in the appeal book looking like this – and I will shortly hand your Honours what we submit actually would be ones that were or were not caught – but he hands both Judge Blackmore and – there is no need to look at it now. It is at page 887. He hands Justice Howie the evidence that he says is caught.
Mr Roberts for a specific reason then persuades Justice Howie not to do so because he wants to go back to re‑argue what is or is not, shall I say, the subject of the – he wants to re‑argue section 128(8). On the request of the Crown and contrary to the requirements of Form 1 he then goes back, and you see in paragraph 28, and says you are not bound by Justice Howie, that is at page 262, and then he says “I managed to get the certificate” so it was not marked up; that is at page 262 to 263. His Honour said, “If it had come in a different form I would have been somewhat constrained”.
We come then to a second judgment of Judge Blackmore which is the judgment which is, in our submission, critically in error. This judgment appears at page 299. This is the way in which the whole of the evidence then comes to be admitted. At 299, this is the judgment about - his Honour describes this as a judgment on the meaning of fact in issue. In our submission, this is a judgment that should be about what falls within the terms of his Honour’s certificate.
Then you see, if I may take you through the judgment, his Honour goes through Justice Howie’s reasoning and at page 305, line 40, he says, “I do not disagree with his Honour’s reasoning”. If he does not disagree with the reasoning, in our submission, that is the end of it. At page 306, line 46, he says:
Evidence that directly or indirectly established the existence of that agreement was evidence with respect to a fact in issue in the trial.
Of course it was because if it was not, then it would not satisfy the question of relevance. Then his Honour at page 308, line 15, said:
In the circumstances the conversations recorded on 4 April and 9 April 2001, in which the accused Cornwell allegedly speaks about the supply of drugs with Lawrence and Diez, was evidence that went to a fact in issue -
It did go to a fact in issue, but it was not evidence, the doing of which was a fact in issue. So that is a critical mistake.
GUMMOW J: What line is that, Mr Game?
MR GAME: It is line 20, your Honour.
GUMMOW J: Thank you.
MR GAME: Then his Honour says, and, as I say, if this is the correct interpretation section 128(8) does not mean a thing because no evidence is protected if it is relevant.
HEYDON J: Evidence as to credit is protected and evidence going to the admissibility of other evidence is protected.
MR GAME: Evidence of credit, yes, but, your Honour, that would be a very major rewrite of a section that is in pretty clear terms.
HEYDON J: You tell me when you are coming to the Law Reform Commission and I will tell you ‑ ‑ ‑
MR GAME: When I am finished with these I will come to the Law Reform Commission. Then his Honour says, line 36:
Clearly where they are so intertwined, and provided the evidence originally admitted goes to a fact in issue . . . went directly to establishing the existence of an agreement -
Then his Honour says, at the top of 309:
the Crown in this trial is not restricted by the certificate.
His Honour has avoided the very task of construing the certificate which was the task that he was engaged upon. In our submission, that is the critical error in Judge Blackmore’s judgment. That is an error of discretion which means that the very issue which his Honour was required to determine did not determine and accordingly the appeal had to succeed.
GLEESON CJ: Mr Game, can I ask you a question about subsection (8) and this expression:
being evidence that the defendant:
(a) did an act the doing of which is a fact in issue -
If you have a man charged with murder and the victim was shot dead in a room in which there were no other persons present than the victim and the murderer, does an accused’s evidence that he, the accused, entered the room shortly before the fatal shot was fired fall within the expression:
evidence that the defendant:
(a) did an act –
or is the only thing that falls within that expression evidence that he aimed the gun at the head of the victim and pulled the trigger?
MR GAME: As unattractive as it is, in my submission, that he went into the room is not “did an act” but ‑ ‑ ‑
GLEESON CJ: It is “evidence that”.
MR GAME: It may be, but may I say if the words:
that the defendant:
(a) did an act –
if you take them out being evidence of a fact in issue you could comfortably say, yes, it was evidence of a fact in issue.
GLEESON CJ: I am just wondering what is the meaning of the expression “evidence that” somebody did something.
MR GAME: What I would read into that, rightly or wrongly, is that it is deliberately much more constrained than simply evidence of a fact in issue.
GLEESON CJ: So that in a case of murder, for example, the only evidence that would be caught or covered by subsection (8) is evidence by a defendant that the defendant killed the victim?
MR GAME: Yes, but there may be – sorry, killed the victim, had the relevant state of mind, intention to kill, and any matters that were “defences” like provocation, or – that would be a fact in issue because the Crown would have to negative provocation if it was raised, so that would be ‑ ‑ ‑
GLEESON CJ: Well, leaving aside “defences” like that?
MR GAME: Yes, that is correct. But, even if that is not correct that only takes you back to evidence of a fact in issue and nobody has suggested that the evidence of domestic trading was evidence of a fact in issue. They simply changed the construction and said this really means evidence that goes to or relates to or has something to do with facts in issue and that is the reasoning that Judge Blackmore was encouraged to apply and did.
HEYDON J: Do you accept that section 128(8) is the only provision in the Evidence Act which is equivalent, for example, to section 399(4) of the Crimes Act (Vic) which says that:
A person charged and being a witness pursuant to this section may be asked any question in cross‑examination notwithstanding that it would tend to criminate him as to the offence charged.
MR GAME: I believe so.
HEYDON J: Your submission is that assuming that New South Wales law before 1995 under section 407 of the Crimes Act corresponded with the present 399(4) of the Crimes Act (Vic) that section 128(8) sharply narrowed that regime?
MR GAME: Yes.
HEYDON J: The Law Reform Commission shows no sign that that was any part of its goal.
MR GAME: No, but can I take you to the part that I thought might be of some relevance to this?
HEYDON J: Yes.
MR GAME: In volume 26 – I will pass over – it speaks at 860 about “Striking the Balance” and it talks about “Optional Certification”. That is at page 488. Then we go to Report 38 and it is at page 121 and the passage I had in mind is in paragraph 217 and I understand what appears above it but what it says at about three‑quarters of the way down that paragraph:
The accused and civil parties are not, however, in the same position. If the accused has to answer questions about facts relevant to the charges, the answers will not generally expose the accused to the risk of further criminal proceedings. The contrary applies to parties giving evidence in civil proceedings – their answers could be used in subsequent criminal proceedings. The clause should be limited to the accused.
So if you take the converse of that, what it means is that the rationale is that you do not need to protect the accused in relation to facts in issue because they are protected by the charge, but if there are uncharged acts, they are not protected by the charge. That is an explanation for the narrowness of the provision and that is the only passage I can find that really speaks in any way to that subject.
GUMMOW J: Where is that passage, Mr Game?
MR GAME: It is in paragraph 217. It is in the Crown’s bundle of documents.
GUMMOW J: Page 11. Yes, we had that before.
MR GAME: Paragraph 217(a) and it is about three-quarters of the way down.
HEYDON J: In the interim report, which was No 26, the recommendation was that this should be enacted. The preceding provisions of the section do not apply:
in relation to evidence given by a party that tended to prove that the party did an act the doing of which is a fact in issue in the proceedings.
That wording is picked up in that paragraph 217(a) on page 121.
MR GAME: Yes, I cannot see it in chapter 26, but I appreciate it in paragraph 217.
HEYDON J: The words then changed. The draft that was annexed, or that was part of Report No 38 said the preceding provisions of this section – or in a criminal proceeding, which reflects what you just submitted – the preceding provisions of this section do not apply in relation to evidence the defendant did an act the doing of which is a fact in issue close in that respect to the present wording. The problem is that not only the first, in paragraph 217, the Law Reform Commission does not seem to indicate any desire to move away from the “tend to prove” formula and, secondly, in appendix A to Report No 38, which is a section that gives a kind of summary of the provisions, it says this of subclause (5):
the privilege against self‑incrimination is not available in a criminal trial for questions that tend to show that the accused committed the offence for which he or she is being prosecuted.
In other words, for what it is worth, and I will explain that phrase in a moment, it would seem to indicate that the Commission was indifferent as between the Report No 26 wording and the Report No 38 wording. The Report No 26 wording, would you not agree, that if that wording were the meaning of what we now have, evidence that people were having long discussions about the retailing of cocaine in New South Wales tends to prove that they were conspiring to import it into New South Wales?
MR GAME: If the words are “tends to prove” I would think so, yes.
HEYDON J: One has to be careful with this. We have Report No 26 which proposes certain wording over many sections. We have Report No 38 that often changes it. Then we have debates over many years as to what should be done and, finally, Parliamentary Counsel in alliance with the New South Wales authorities came up with the version we now have. But putting those complications on one side, what answer do you put to the proposition that that shows that evidence that the defendant did an act means evidence that tends to show that the defendant did an act?
MR GAME: Because it is very explicit in using different words.
HEYDON J: But the authors of these ideas saw no distinction.
MR GAME: But, your Honour, the protection they want to give is the protection of the charge. There is no protection at all if you adopt that interpretation, none at all.
HEYDON J: No, no, you say there is no protection. It would make the law in this respect entirely the same as it was before 1995 in this respect, this narrow respect.
MR GAME: That may be so if that ‑ ‑ ‑
HEYDON J: There is nothing shocking about that. It has been the law in some parts of this country for 120 years.
MR GAME: Yes, but the words “evidence did an act the doing of which is a fact in issue”, it has to be evidence of the act, not evidence that tends to show the act, it has to be evidence of the act. That is what it says. Really, it is creative ‑ ‑ ‑
HEYDON J: Do you accept that it is permissible to have recourse to the ALRC reports?
MR GAME: I think it says so in the legislation. I am pretty sure it says so in the legislation, but I will check on that and send up a note.
HEYDON J: If it says so, we will find it.
MR GAME: But one thing that cases like Papakosmas make clear is that you do not, as it were, go back to the common law or to other concepts in order to interpret what these provisions mean.
HEYDON J: I am not doing that.
MR GAME: No, I understand.
HEYDON J: But I think you can go back to the common law, can you not, to say that a revolution has been effected if your submission is correct, and then you have to inquire what the thinking behind this revolution was, and on that there is a vacuum.
MR GAME: Well, yes, except that the language in ‑ ‑ ‑
HEYDON J: In a Commission that considered these matters for nearly 20 years.
MR GAME: Yes, but, your Honour, the language in section 413A is quite different and quite specifically so.
HEYDON J: It has nothing to do with 413A; it has something to do with section 407.
MR GAME: Sorry, section 407 I think is quite different too. I do not have it in front of me, but 407 is also quite different.
HEYDON J: Mr Justice Gobbo, for example, thought that 407 had the same effect as the Victorian legislation. New South Wales is a little murky, but on the assumption that the law in New South Wales was the same as the law in Victoria and all other places, a revolution has been effected, on your submission.
MR GAME: Well, yes, but you would never put in the words “did an act the doing of which” if you intended to say “tends to prove that the person”. You would just say “tends to establish a fact in issue”, or is relevant or is otherwise ‑ ‑ ‑
HEYDON J: This is the last time I will say it. ALRC 38 did not proceed on that basis.
MR GAME: No, I understand.
GLEESON CJ: In relation to what is an obvious subject of major importance, namely, how do you handle in your new legislation cross‑examination of an accused person at a criminal trial?
MR GAME: Are you asking me to ‑ ‑ ‑
GLEESON CJ: Does your submission amount to the proposition that if an accused person gives evidence at a criminal trial, that person can claim privilege against self‑incrimination in relation to any question except a question which, if answered in one way, would be immediate and direct evidence of the actual commission of the crime?
MR GAME: Yes, but the fallback position is that at the very least evidence of a fact in issue which would bring in evidence of the kind that was admitted in – or treated as being evidence of a fact ‑ ‑ ‑
GLEESON CJ: That produces this result. If the questioner says to the accused, “Did you kill Cock Robin?”, the accused cannot claim privilege against self‑incrimination.
MR GAME: That is right.
GLEESON CJ: But if the questioner says to the accused, “Did you arm yourself with a gun and go into a place where you knew you would find Cock Robin?” the accused can claim the privilege against self‑incrimination.
MR GAME: On the very restrictive reading, yes, but not on the reading that simply reads that as meaning evidence of a fact in issue - if that is evidence of a fact in issue. So if what is intended to be protected by subsection (8) is evidence of facts in issue, then he cannot claim privilege in respect of that.
The point I was trying to make from what I was reading from Chapter 38 is that the only difference between parties in civil and criminal proceedings according to that discussion is the fact that the protection does not exist, shall I say, of the charge in civil proceedings. So you have to, as it were, read it in terms of what is and what is not protected. Evidence that tends to establish a fact in issue or is relevant to a fact in issue might very well be evidence which exposes them to another charge, and that is what section 128(8) is seeking to do, to protect them from.
Now, there is a proposition of statutory interpretation which would say – I am not sure how far one can take it, but that is a section that takes away protection, subsection (8), so we would say you would read that narrowly, and subsection (7) gives a protection, so we would say you would read that broadly applying Hamilton v Oades. There is a New South Wales case about the Royal Commissions Act which Justice Howie asked about and that has a similar provision and a proposition just as I have put appears in Justice Cole’s judgment. It is at 91 A Crim R 141 and the relevant passage is at 147.
So as I say, our fallback position is that what subsection (8) does protect is evidence that is not evidence of facts in issue, and that would be sufficiently broad for it not to make a nonsense of the provision in the way in which it was suggested to me that it might just a short time ago.
Now, your Honours, in respect of the Crown’s appeal, there is an outstanding issue as to whether or not the single order they seek is an order quashing the certificate, and I will just give you a page reference to this, but when they first brought their appeal, Justice Ipp, when it first came before the court, pointed out to them that he had a problem with that and that judgment – there is no need to read it, but it is at page 253.
GLEESON CJ: This is the section 5F appeal?
MR GAME: Yes, he pointed out to them that they had a problem with the nature of the relief that they sought. He wanted the appeal to be disposed of at that time and he was in the dissent on that issue, but he made the point that there could be no appeal under section 5F from what was merely the issuing of a certificate. Now, if one goes to the language of subsection (5) ‑ ‑ ‑
KIRBY J: Can I ask was his point that that was not an order that attracted the right of appeal?
MR GAME: In effect, your Honour, yes, it was his ‑ ‑ ‑
KIRBY J: Or that the relief for which section 5F provides is of a theoretical and not a substantive character?
MR GAME: No, he made both points actually, your Honour. He made the point that (a) it was far too late, but (b) that the certificate itself was not something that was amenable to appeal, and Justice McClellan doubted whether it could be amenable to appeal. If I made the point about this in the context – say this was an application for certiorari to quash. Would a court seriously entertain an application ‑ ‑ ‑
KIRBY J: Can you have certiorari to an order of a superior court judge, except a federal judge under the Constitution as an officer of the Commonwealth?
MR GAME: I am not sure. I have a feeling that you can in very limited circumstances, your Honour, but, in relation to the administrative issue of a certificate, for example, if it were a valid certificate, I would have thought so. But for discretionary reasons at least it is hardly likely a court would entertain such an application so long after the event when so many things have happened in respect of it and when the evidence has been used by the prosecution against other defendants.
GUMMOW J: Do we have the text of 5F?
MR GAME: Yes, your Honour, it is at the back of our submissions.
GUMMOW J: I have an idea we looked at the Victorian equivalent of this fairly recently.
MR GAME: Our argument under subsection (5) is that it is not a judgment, order, decision or ruling and so that quashing this ‑ ‑ ‑
GUMMOW J: There is an order setting the administrative machinery in motion, though, is there not?
MR GAME: Yes, your Honour, that is exactly right. There is a judgment and order but they are antecedent and it is only by, shall I say, what really amounts to collateral challenge that the Crown are attempting to get at that judgment or order.
GUMMOW J: Why could they not make a declaration under subsection (5)? They could set aside the judge’s order which set the machinery in motion and make a declaration that the certificate is ineffective.
MR GAME: Your Honour, I am not sure that declaration is contemplated by judgment, order or decision.
GUMMOW J: It is accomplished by the words “judgments, decrees, orders and sentences” in section 73 of the Constitution. They are the widest collection of words you can find Sir Samuel Griffith said.
MR GAME: I suppose, except that a declaration has these very specific connotations about discretionary issues, about whether you would actually do it. The discretion, if it were for the reasons that I have already given, there would be strong discretionary reasons why you would not engage in that exercise at that late point.
Now, your Honours, I wanted to provide you with some material – sorry, the page at which their appeal is - where the order they seek is setting aside the certificate or quashing the certificate is at page 230 of the appeal book. I have a small bundle of some material that is relevant to this question about what are facts in issue; if I could just hand them to your Honours and just tell you what they are. With that I will have finished with this application, then would it be appropriate for me to go to Mr Cornwell’s special leave.
These passages here, first is the Evidence Act ‑ Report 26, in relation to what is a fact in issue; that is Chapter 30. The next is a discussion in Cross on Evidence on facts in issue. Then the next is a discussion by Justice Wells of Julius Stone’s incomplete transcript in which he discusses what are facts in issue. That is that bundle and I do not wish to say anything further about them at this point. I wanted then to turn the special leave – it will just take me a minute to get my books in relation to that.
In answer to your Honour Justice Heydon’s question, section 3(3) of the Evidence Act enables you to have the reports and it says “Without limiting the effect of, and subject to, section 34 of the Interpretation Act”, so it is both. Now, shall I turn to the special leave application?
GLEESON CJ: Yes, thank you.
MR GAME: Now, your Honours, you have a separate set of submissions about this. Still using the volumes in the ‑ ‑ ‑
HEYDON J: There is just one slight problem. I am sorry to be tedious about this, but it is not clear that the relevant Law Reform Commission report was laid before either House of the Parliament of the Commonwealth. That would be 38, not 26 presumably.
MR GAME: I am sorry, your Honour?
HEYDON J: Report No 26 was interim and 38 was final.
MR GAME: I do not know the answer to that question. I could send up a note about that if that was – I think it has been dealt with in other Evidence Act cases, but if I could send up a note about that, I will look at it and see whether the – the question is whether volume 26 is something that the Court can have regard to; is that correct?
HEYDON J: And 38.
MR GAME: Yes, all right. Now, I just wanted to ‑ ‑ ‑
KIRBY J: Are you going to send a note in on that point?
MR GAME: Yes, I will.
KIRBY J: I must say that if you have any further thoughts on the matter that was raised by the Court itself today concerning 128(1), or Mr Roberts for that matter too, I think it may be that on reflection you have some further thoughts that you want to add, I would be grateful for them.
MR GAME: Yes, certainly, your Honour. Now, could I take you first to Mr Cornwell’s application book at 1825. He put on his own submissions that when this case first came before your Honours Justice Kirby and Justice Heydon and he sought orders in relation to, in effect – this is at 1825 – what are grounds 4 and 5. I think on examining it ground 4 was not dealt with, so if we were unsuccessful on other grounds, ground 4 would be remitted.
Now, the actual grounds which were raised in the Court of Criminal Appeal appear at 1776 to 1777. Now, you will see that – it does not matter – ground 6 has been left off in the Court of Criminal Appeal’s judgment. So the point is that if we are unsuccessful on the Crown’s appeal, grounds 2, 3, 4 and 6 should go back for further consideration. The fate of ground 5 has to be determined by this Court in any event, but I am going to invite a course which in effect says that the court did not adequately address the unsafe submissions and then I am going to invite your Honours to uphold that appeal, but not determine it, and remit that question for further submissions on ground 5.
Now, in order to make good this argument may I take your Honours to page 1235 of the joint appeal book so that you can see the judgment of Justice McClellan in one place. You will see that in paragraph 106 his Honour came to no concluded view about ground 4. Then at paragraph 107 he disposes of the unsafe, but what appears in paragraph 107 hardly states the substance of the submissions that were put to his Honour on the unsafe submission and I will seek to demonstrate that in a moment.
There is no need to go to them now, but the scope of my submissions in the Court of Criminal Appeal went to the issue about whether or not there was, shall I say, a meeting of minds or whether the appellant was frozen out. What it means is this, that paragraphs 104 to 106 are an incomplete dealing with the parallel importation point, paragraph 107 is an incomplete dealing with the no evidence of involvement after 20 April point and what might be described as the falling‑out issue.
One way of seeing how the substance of the submission is put is to look at the document which is attached to our written submissions. This document was handed to the Court of Criminal Appeal. This document shows that there were detailed submissions made about parallel importations and there were detailed submissions made about what is described as freezing out. That appears on page 3 of the submissions. So if you couple that with what I said at page 821 to 827, I was coupling that to the no meeting of minds point.
So, really, what we say is this, that the no evidence ground, ground 5, did not deal in the context of the no evidence submission with the parallel importations point in substance and it did not deal in substance with the freezing out point or the non‑meeting of minds point. Our submission then is that this ground has not adequately been dealt with by the Court of Criminal Appeal. The Court can see that from the submissions that were put, including that document that I have just been to. The balance of the submissions is set out in the document and I am content to rely on that document.
GLEESON CJ: Thank you, Mr Game.
MR GAME: Just one last thing. I told your Honours that there was a document which was at page 887 which Mr Boulten provided. That document was a recreation of what was handed to Judge Blackmore and Justice Howie but it was accurate and when I provided it to the Court I said it was not necessarily the case that every single one was caught by the certificate because I had looked at some and I thought some of them might not, but no submission was made by the Crown suggesting that they were not caught by the certificate.
Now, we have produced a document, if the Court comes to it, and if it does not it is not necessary to do so, but this document that we have created is a document that we would say is clearly of matters that are not facts in issue and is caught by the evidence and cross‑examination and it is only there to assist the Court if you come to that point.
KIRBY J: This is in place of the document at 887?
MR GAME: Yes, your Honour, it is our, shall I say, conservative version of that document. But may I say this, that when you look to the cross‑examination, the prosecutor cross‑examined very heavily on the domestic aspects of the phone calls of 24 March, 4 April, 9 April and 12 April, and that is almost all of the references from appeal book 1113 right through to 1160. So the point I made at the beginning was not a facetious one. The Crown was trying to get at the admissions about
domestic trading. They were not trying to get at the denials about the conspiracy. Those are our submissions, if the Court pleases.
GLEESON CJ: Thank you, Mr Game. Yes, Mr Roberts.
MR ROBERTS: Your Honours, firstly endeavouring to answer the Chief Justice’s question about why it is under the Companies Code and similar provisions question by question privilege, I think from a very quick examination of the point that the legislation – and what I was looking at was Hamilton v Oades 166 CLR 486 and it sets out section 541(12) of the Companies (New South Wales) Code. I think quite a few of these compulsory type examination provisions are in this form, and it reads:
A person is not excused from answering a question put to him at an examination –
It says “a question” and I think it has been interpreted that “a question” means a question and therefore the privilege has to be taken for each question that is asked. I think that is the answer, though I may be wrong, but that is what I have been able to find at lunchtime.
This may be of some relevance, your Honours. An examination of what may be a fact in issue perhaps is not as easy as it may seem. Can I just remind your Honours of what was said in another context. It was a criminal case. It was Truong v The Queen 78 ALJR 473. It was an extradition case. It is funny how these extradition cases overlap. In any event, in the joint judgment of the Chief Justice, Justice McHugh and Justice Heydon – and could I just remind your Honours of what was said there in relation to conduct because conduct was used or is used in the extradition legislation and there was some argument there in relation to what it was that the person had been extradited on and the elements of the offence being different in Australia or the State in which the person was charged and overseas. At paragraph [29] of that joint judgment this was said:
The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.
Then in the joint judgment at paragraphs [29], [33], [34], [35] and [37] it goes on to elaborate in relation to particular problems involving conspiracies with which we are dealing here. So conduct at least and the words chosen in 128(8) may not be as quite straightforward as his Honour Justice Howie said, that in fact it may be, particularly in relation to a conspiracy, to have a far wider meaning, even without looking at the preceding words “evidence”, but I draw that to your Honours’ attention.
A question was asked at one stage, is there another provision in the Evidence Act dealing with similar sorts of matters as 389 of the Victorian Act. I think 104 of the Evidence Act is one such provision, “protections: cross‑examination of accused”. Section 104 is in terms still there, as is 103 as well. It is the same or similar sort of credibility topic. I just draw your Honours’ attention to that.
GUMMOW J: There are two appeals you have, have you not?
MR ROBERTS: That is so.
GUMMOW J: One appears at 1247 and one at 1253. The one at 1253 is bound up with section 5F.
MR ROBERTS: Yes, which really, I suppose, is our fallback position because if we win ‑ ‑ ‑
GUMMOW J: That is what I was thinking. If you succeeded on the notice of appeal at 1247 and particularly on ground 1, 2 and 3 there, so the matter then went back for further consideration of the remaining grounds of appeal against conviction, you would have won in substance on the certificate point, would you not?
MR ROBERTS: It would be unnecessary for your Honours to make any order but obviously it is of great importance for future trials that this question about 128(8) be resolved in some fashion. From the Crown’s point of view that is the most important topic because it has enormous ramifications for future prosecutions and already it is having ramifications now because this is the only judgment on 128(8) and it is reported in Odgers, for example, and people are getting to know about this and already ‑ ‑ ‑
GUMMOW J: I am just worried about section 5F, to be frank.
HEYDON J: If you won on 1247, 1253 need not be considered, need it?
MR ROBERTS: Well, obviously, we would certainly be inviting the Court to say something about the correctness of the decision under 128(8) but it would not be necessary, from our point of view, for your Honours to make an order doing anything in relation to the certificate. Whether it stands or not is a matter of ‑ ‑ ‑
GUMMOW J: Yes, that is right. What you have just said is bound up in the second appeal, so in response to Justice Heydon the answer is yes, is it not? We only need to decide the first if you win.
MR ROBERTS: Yes, if we win, that is so. Clearly, it was our ultimate fallback position which is why we lodged the appeal, if all else fails ‑ ‑ ‑
GUMMOW J: That is why you put it on, I suppose.
MR ROBERTS: Yes, we sought to set aside or do something at least. Another suggestion we had was to reword the certificate in some fashion but, again, we were met with an answer, how can we do that? We said the certificate could be construed in a fashion that it could only relate to other proceedings, for example, or something could be said in relation to the operation of the certificate but, again, difficulties were seen in relation to this and what we saw as the answer was to quash the certificate.
GUMMOW J: Thank you.
KIRBY J: What is your answer to the argument that Mr Game advanced that even if the Court came to the conclusion that the certificate ought not to have been granted and that it was legally erroneous, that it was granted by a judge of the Supreme Court and that the accused then gave evidence and submitted himself to cross‑examination without specific objection on the ground of self‑incrimination and that now retrospectively to impose on the events a view of the certificate that was contrary to that declared and held at trial would be fundamentally unfair to the accused?
MR ROBERTS: We say that is turning it on its head because the only thing that was fundamentally unfair was unfair to the Crown in the first place. As soon as he was in the witness box he had to answer the case in one shape or form and because he was ‑ ‑ ‑
KIRBY J: But would he have gone into the witness box if it had not been for this view that he was going to be protected under the section?
MR ROBERTS: He was not told he would get a certificate – I am sorry, I withdraw that. Again, I am lapsing into this language which I did not lapse into, by the way, in relation to – we always put the position he does not have a privilege. We did not put it should not get a certificate. Our argument was there is no privilege against self‑incrimination. That, your Honours, was always our argument. But to suggest that somehow this is unfair is putting the matter on its head.
He wanted to give evidence. He was going to give evidence anyway, but he wanted this protection should it ever arise, presumably in the event that he was acquitted, so that the authorities would not charge him with the offence of supply using the evidence that he gave. So he wanted his cake and to eat it as well. It was not as if he would not have gone into the witness box anyway, we respectfully suggest, because that was seen to be the way that he would have an explanation in relation to these matters and, if he did not, it would be likely that he would be convicted. So it just turns it on its head to say that somehow he is disadvantaged. I mean, this is the evidence that he wanted to present to the court to say, “I am not guilty of this offence”, but on top of that he wanted this protection.
HEYDON J: Apart from that, Justice Howie made it plain that he was not giving any ruling one way or the other until a question was asked of the witness.
MR ROBERTS: That is so.
HEYDON J: At page 59, for example.
GLEESON CJ: The moment he gave his name and his address he could be cross‑examined about anything.
MR ROBERTS: That is right. As soon as he went into the witness box he was open to cross‑examination. So to suggest that because along the track he has claimed privilege and then, as it turns out, the privilege is accorded him and a certificate is granted, he suffered no disadvantage at all if it be that that certificate is of no effect or be quashed, none whatsoever. To suggest in the second trial that he could not give evidence, we would respectfully suggest, is just absurd. He could give evidence if he wanted.
The advantage he got in the second trial was that he had his case before the jury without the jury seeing him in the witness box. So it was an advantage to him to have that evidence in, an advantage for him not to go in there again for a second time. So he got an advantage. We, of course, put the evidence in because it was highly cogent and answered all the possible gaps in relation to our case. So we needed that evidence there.
KIRBY J: I accept your point about it being highly cogent, but the fact is that he gave his evidence and the evidence was no doubt thought about and reflected about and given after he had been granted this certificate and ‑ ‑ ‑
MR ROBERTS: No, your Honour, all the thought that went into this – and indeed there was a great deal of thought, as we put to the respondent in cross‑examination. He picked bits and pieces out of statements and had woven it into his story, but all of the thought went beforehand, which was to come out in any event. He just wanted it to come out with the added protection of the certificate.
GLEESON CJ: Let me get one thing about the sequence clear. Did you say that he actually went into the witness box and gave some evidence, if only his name and address, before there was any ruling by Justice Howie about section 128?
MR ROBERTS: Yes. What happened was – I think my friend has just taken your Honours through it – it was raised in advance – quite a way in advance on a couple of occasions and what was sought was an indication from his Honour as to what would happen. His Honour gave some indication but said, “I am not going to rule on this until I hear what the question is”.
GUMMOW J: He went into the box at page 65.
MR ROBERTS: That is right, and at page 68 ‑ ‑ ‑
GUMMOW J: But at page 59 his Honour had said, “I am not going to tell you until you actually get to the point”.
MR ROBERTS: I am not going to tell you, yes. He got an indication of what his Honour was thinking. I mean, there is no doubt about that.
GUMMOW J: At the top of 63 ‑ ‑ ‑
HEYDON J:
Let’s proceed and see what happens.
GUMMOW J: Yes.
MR ROBERTS: Yes, and that was that point that we were endeavouring to make. You cannot (a) give rulings in advance and (b) how could you rule in relation to privilege, in any event, before you hear what the question is.
KIRBY J: What about the point that had he not received the certificate he could have objected to the evidence on the ground of self‑incrimination for other offences than those of which he was charged?
MR ROBERTS: We say he did not have any privilege in relation to the facts of the case.
KIRBY J: There was trafficking.
MR ROBERTS: A body of evidence is admitted in the case to prove that – the eight recordings to prove that he was guilty of the offence with which he is charged. What is being said now is, well, he cannot be cross‑examined on that body of evidence or at least on a large part of it because it involves more than one offence and he is not charged with more than one offence. That, simply, is what is put. In other words, we would have to ask him – we could only ask him a few questions about all of the evidence that comprised our case.
It was simply absurd in terms of running a criminal trial. If this is the revolution that the Parliament has intended, well, your Honour, it is a very odd way of going about creating a revolution and why it would be necessary to do so one could only be amazed because clearly there was no intention to create this sort of situation. It was not the intention and the modern, as I understand it – this Court’s interpretation of statutes is a purposive interpretation and clearly it was not the purpose of the legislature to create really a farcical situation which is what, in effect, would happen.
I mean, how can evidence be admitted as part of the Crown case, yet an accused has a privilege in relation to that evidence not to answer it? One would think it would be inadmissible to start off with if that was so. The jury would be placed in an impossible position if that were right. However, in relation to this fairness argument, the only unfairness that was caused in this case was to the Crown, we suggest. There was no unfairness whatsoever, and would not be, if the Court makes the various orders that we are seeking – there is no unfairness whatsoever in the real world in relation to this respondent.
Very briefly, your Honour Justice Gummow asked I think in relation to 128(7) why the word “used” appears, and can I suggest that why they have used the word “used” is because it relates to subsections (a) and (b). One is giving evidence and (b) is the use of the evidence, so in order to have a verb that could be properly used in relation to (a) and (b) they have used the word “used”. They cannot use “giving evidence” because of subsection (b), so if they express it in one term they have to use the verb “used”. That is why they have used it. I cannot remember the context in which the question arose now.
In relation to our appeals, the only other matter perhaps which may be of some assistance to your Honours is if I refer you to Wigmore on Evidence and it is volume 8 of the McNaughton revision, paragraph 2276. I do not have copies but I could hand my copy up if it is easier for your Honours to have it copied in due course. There is a very detailed analysis of various views as to what an accused waives when he goes into the witness box, so that may be of some assistance to your Honours in
relation to that matter. I can hand up the one copy if it is of any use, but it is in volume 8 of Wigmore.
GLEESON CJ: Thank you.
MR ROBERTS: In relation to the grounds which we say should be referred back to the Court of Criminal Appeal, as we understand it the outstanding grounds are 2, 3 and 6.
HEYDON J: Ground 4 was not dealt with properly, not decisively.
GUMMOW J: Or had an inclination, remember?
MR ROBERTS: I remember, your Honours. If your Honours feel that it should be dealt with properly then I am certainly not going to stand in the way. It is by way of your Honours – I will say nothing. If your Honours are of that view, then 4 as well. I think that is all of the matters unless your Honours have any further matters?
GLEESON CJ: Thank you, Mr Roberts.
MR ROBERTS: Thank you, your Honours.
MR GAME: Would I be permitted to just say one thing that I forgot to say?
GLEESON CJ: Yes, Mr Game.
MR GAME: It does not relate to my application but section 128(8) - and I neglected to make this point, but I think it may be an important one – I said several times it has nothing to do with what Judge Blackmore did and then I forgot to say what the reason is. The reason is because it speaks to the giving of evidence. This is not about the giving of evidence before Judge Blackmore, this is about the tender of evidence from the other proceeding. That is why I say the exercise is merely applying and construing the certificate under subsection (7).
GUMMOW J: What do you say the phrase “the giving” means?
MR GAME: “Giving of evidence” – it actually means getting into the witness box and giving evidence. It does not mean tendering of a transcript of earlier or previous ‑ ‑ ‑
GUMMOW J: Or tendering of a piece of real evidence or tendering of a document?
MR GAME: Yes, but it is not the giving of evidence by a defendant. That is what that is about. It is about the witness actually going into the witness box and giving evidence. I am sorry I did not mention that before. That is all I wanted to say.
GLEESON CJ: Thank you. We will reserve our decision in this matter and will adjourn until 10 o’clock tomorrow morning.
AT 4.18 PM THE MATTERS WERE ADJOURNED
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