R v Cornwell - [2004] NSWSC 45

CITATION: R v Cornwell [2004] NSWSC 45

HEARING DATE(S): 10/02/2004

JUDGMENT DATE:
11 February 2004

JUDGMENT OF: Howie J at 1

DECISION: Certificate under s 128 to issue.

CATCHWORDS: Criminal Law and Procedure - Application for the issuing of a certificate under s 128 of the Evidence Act - whether application can be refused or deferred - whether the certificate can be limited in its application.

LEGISLATION CITED: Evidence Act 1995 - s 128

CASES CITED: R v Cornwell [2003] NSWSC 660

PARTIES :
Regina v Richard Bruce Cornwell

FILE NUMBER(S): SC 70223/02

COUNSEL: P. Roberts SC - Crown
P. Boulten SC - Applicant

SOLICITORS: Commonwealth DPP - Crown
Ford Gaitanis Lawyers - Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

WEDNESDAY 11 FEBRUARY 2004

70223/02 R v RICHARD BRUCE CORNWELL
JUDGMENT (on Application that Cornwell be given a Certificate under s 128 of the Evidence Act)

1 HIS HONOUR: On 5 May 2003 the applicant, Richard Bruce Cornwell, was standing trial before a jury over which I was the presiding judge. He was charged with a conspiracy to import a commercial quantity of cocaine. There were a number of co-accused standing trial at the same time, two of whom were Juan Guillermo Diez-Orozco (known as Diez) and John Lawrence.

2 In the course of those proceedings I was asked to make rulings prior to the applicant giving evidence in his own defence. It is unnecessary to detail the issues that then arose for determination. They are contained in a judgment given by me on that date when I determined that the applicant was both entitled to object to giving evidence on a particular topic on the grounds that his answers might incriminate him and that, if he did object, I would require him to give evidence and issue a certificate under s 128 of the Evidence Act, see R v Cornwell [2003] NSWSC 660.

3 The trial resulted in the jury being unable to agree upon a verdict in respect of the applicant and a number of other accused. The re-trial of the charge that was before me has recommenced before Judge Blackmore in the District Court.

4 Notwithstanding that I required that the legal representatives for the applicant present a draft of the certificate within three weeks of my decision, nothing was received by the Court until 6 February last. On that date the solicitors for the applicant wrote to my associate asking for guidance as to the procedure for obtaining a certificate. Later that day the Court was informed that a dispute had arisen as to the terms of the certificate and the parties sought to have the matter listed before me before any certificate was issued by the Court.

5 The matter was listed yesterday, 10 February. Mr Roberts SC appeared for the Crown and Mr Boulten SC represented the applicant. In the meantime a draft certificate in accordance with Form 1 as prescribed under the Evidence Act

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Cornwell

Details

AGLC: R v Cornwell [2004] NSWSC 45
Case: [2004] NSWSC 45
Decision Date: 11 February 2004

CaseChat Overview and Summary

The case of R v Cornwell involved the accused, Cornwell, applying for a certificate under section 128 of the Evidence Act, which allows for the disclosure of certain confidential information in criminal proceedings. The application was made in the context of a criminal trial where the disclosure of the confidential information was crucial for the defence. The court had to determine the scope and limitations of the certificate, specifically whether the application could be refused or deferred and whether the certificate could be limited in its application.

The primary legal issue before the court was whether the application for the certificate could be refused or deferred and, if not, whether the certificate could be limited in its scope. The court had to consider the balance between the need for the disclosure of confidential information and the protection of that information. The accused argued that the certificate should not be refused and that any limitations on its application should be minimal. The prosecution, on the other hand, contended that the application could be refused if it was deemed unnecessary or if the disclosure of the information would cause significant harm.

In delivering the judgment, the court held that an application for the certificate could not be refused outright but could be deferred if the circumstances warranted it. The court found that the certificate could be limited in its application to ensure that only the necessary information was disclosed. The decision was based on the principle of balancing the interests of justice with the protection of confidential information. The court emphasised that the certificate should be granted if the disclosure was necessary for a fair trial and that any limitations should be narrowly tailored to protect the confidential information as much as possible. The outcome was that the application for the certificate was not refused, but the court reserved the right to limit its application to ensure the protection of the confidential information.

Orders