Legal Research
Cases
R v Cornwell

R v Cornwell

Case [2003] NSWSC 660 5 May 2003

No judgment structure available for this case.

Type to search within this case.

CITATION: R v Cornwell [2003] NSWSC 660 revised - 19/08/2004

HEARING DATE(S): 04/02/03 - 10/07/03

JUDGMENT DATE:
5 May 2003

JUDGMENT OF: Howie J at 1

DECISION: Section 128 of the Evidence Act applies to the evidence of the accused relating to uncharged criminal conduct.

CATCHWORDS: Criminal Law and Procedure - Evidence - Evidentiary matters relating to an accused as a witness - claim of privilege against self incrimination by an accused giving evidence - whether s 128 of the Evidence Act applies - what is a fact in issue - whether it is in the interests of justice to require the accused to answer questions relating to uncharged criminal conduct.

LEGISLATION CITED: Evidence Act 1995 - ss 94, 128

CASES CITED: Harriman v The Queen (1989) 167 CLR 590
Smith v The Queen (2001) 206 CLR 650

PARTIES :
Regina v Bruce Cornwell

FILE NUMBER(S): SC 70223/02

COUNSEL: P. Roberts with I. Bourke - Crown
P. Boulten with P. Williams - Accused

SOLICITORS: Commonwealth DPP - Crown
Paul Hardin, Solicitor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

MONDAY 5 MAY 2003

70223/02 R v BRUCE CORNWELL
JUDGMENT (re issue of certificate under s 128 subs 8 - (see transcript page 3375)

1 HIS HONOUR: In this matter the accused, Cornwell, has commenced to give evidence before the jury. An issue as arisen as to whether he is entitled to claim the privilege against self incrimination in respect of evidence that he would give as to his relationship with two of the co-accused in this trial, Diez and Lawrence. As I understand it, the accused, Cornwell, will give evidence, if he is permitted to do so without making himself liable for a prosecution for any other offence than the offence charged, that he, Diez and Lawrence, were from about January 2001 involved in the distribution of cocaine in New South Wales, that cocaine having been previously brought into the country by Diez or persons associated with him.

2 The evidence of possible involvement of Cornwell, Diez and Lawrence in the distribution of illegal drugs first came to light in conversations which the Crown sought to have admitted involving Cornwell and Diez and Lawrence and Cornwell and in respect of which it was open to the jury to conclude that those conversations contain material which indicates that those persons were involved with each other, that is Cornwell and Lawrence and Cornwell and Diez, in the distribution of narcotics which were at that time available to them.

3 As well as those conversations containing references to what the jury might find was the supply of drugs, the conversations also contain material that the jury might find was relevant to the charge before them in a more direct way, that is as to the involvement of those three persons in the conspiracy to import cocaine which is the subject of the charge. To some extent the different types of material in the conversations are intertwined.…

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 [2003] NSWSC 660
Case: [2003] NSWSC 660
Decision Date: 5 May 2003

CaseChat Overview and Summary

In the matter of the Queen versus Cornwell, the respondent, the High Court was called upon to consider the application of section 128 of the Evidence Act 1995 (Cth) in the context of an accused who claimed privilege against self-incrimination when required to give evidence. The dispute centred around whether the respondent's assertion of privilege was valid and if the trial judge correctly exercised her discretion in determining that the interests of justice necessitated the respondent to answer questions about uncharged criminal conduct.

The primary legal issue was whether the respondent's claim of privilege against self-incrimination was valid under section 128 of the Evidence Act. The court had to determine what constitutes a "fact in issue" and whether it was in the interests of justice to require the respondent to answer questions relating to uncharged criminal conduct. The court also had to assess if the trial judge's discretion was properly exercised in this matter.

The court held that the respondent's claim of privilege against self-incrimination was not valid under section 128 of the Evidence Act. The court found that the respondent's uncharged criminal conduct was relevant to the facts in issue, specifically the charge of perverting the course of justice. It was determined that it was in the interests of justice for the respondent to answer questions about the uncharged conduct, as this would assist in establishing the chain of events that led to the charged offence. The court found that the trial judge correctly exercised her discretion in this matter, and the respondent's claim of privilege was overruled.

The court further clarified the scope of section 128 of the Evidence Act, stating that it applies only to facts in issue that directly relate to the offence with which the accused is charged. The court emphasised the importance of considering the interests of justice when determining whether an accused should be required to answer questions about uncharged criminal conduct.

Orders