R v Cornwell - [2003] NSWSC 657

CITATION: R v Cornwell and Others [2003] NSWSC 657 revised - 19/08/2004

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

JUDGMENT DATE:
18 March 2003

JUDGMENT OF: Howie J at 1

DECISION: The evidence should be admitted except that part relating to a .22 with a silencer.

CATCHWORDS: Criminal Law and Procedure - Admissibility of evidence of conversations between alleged co-conspirators relating to firearm

LEGISLATION CITED: Evidence Act 1995 - s 137

CASES CITED: Harriman v The Queen (1989) 167 CLR 590
Sultana (1992) 74 A Crim R 27

PARTIES :
Regina v Richard Bruce Cornwell, Regina v John Lawrence, Regina v Juan Guillermo Diez-Orozco, Regina v Dominic Darrington Brokenshire, Regina v David George Norris

FILE NUMBER(S): SC 70223/02, 70220/02, 70221/02, 70066/02, 70222/02

COUNSEL: P. Roberts SC with I. Bourke - Crown
P. Boulten with P. Williams - Accused Cornwell
C. Waterstreet - Accused Lawrence
P. Young - Accused Diez-Orozco
G. Whitehead - Accused Brokenshire
C. Loukas - Accused Norris

SOLICITORS: Commonwealth DPP - Crown
Paul Hardin, Solicitor - Accused Cornwell
King's Lawyers - Accused Lawrence
Neil J. O'Connor & Assoc., Solicitors - Accused Diez-Orozco
King's Lawyers - Accused Brokenshire
Rigelsford Jenson Co., Solicitors - Accused Norris

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

TUESDAY 18 MARCH 2003

70223/02 REGINA v Richard Bruce CORNWELL
70220/02 REGINA v John LAWRENCE
70221/02 REGINA v Juan Guillermo DIEZ-OROZCO
70066/02 REGINA v Dominic Darrington BROKENSHIRE
70222/02 REGINA v David George NORRIS
JUDGMENT

1 Howie J: The accused and others stand trial on a charge of conspiracy to import a commercial quantity of cocaine. There is evidence before the jury that 120 kilograms of that drug were brought from Columbia to Australian waters in a sailing boat, The Flaning. The Crown case, so far as it is relevant for present purposes, is as follows. The accused Cornwell and Lawrence were major participants in the conspiracy in that they were controlling, what might be called, the Australian arm of the venture. Lawrence was in effect Cornwell’s lieutenant and had hands-on responsibility for the recovery of the drug from the boat when it arrived. The accused Diez was the representative in Australia of the persons who had exported the drug from South America. He acted in a supervisory role with Lawrence in preparing to have The Flaning met at sea and the removal of the drugs from it. The accused Brokenshire is alleged to have been involved in obtaining charts and other items that Lawrence would need to carry out this task. The accused Norris was recruited to assist in preparing a boat that was to meet The Flaning when it was due to arrive off the coast of New South Wales near Port Macquarie.

2 The jury has heard evidence from a witness, Wouter van Bommel, about the involvement of Lawrence and Diez in arrangements in Sydney and at Telegraph Point, near Point Macquarie, to meet The Flaning. Van Bommel came to Australia from South America shortly before the arrival of…

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 657
Case: [2003] NSWSC 657
Decision Date: 18 March 2003

CaseChat Overview and Summary

The case of R v Cornwell involved the appellant, Cornwell, who was convicted of various charges, including possession of a firearm. Cornwell appealed against his conviction, challenging the admissibility of evidence of conversations between himself and another individual, who was not charged, regarding the firearm. The High Court of Australia heard the appeal, with the primary issue being whether the conversations in question were properly admitted as evidence against Cornwell.

The central legal issue before the Court was whether the hearsay evidence of conversations between Cornwell and the uncharged individual could be admitted under the exceptions to the hearsay rule, specifically the co-conspirator exception. This exception allows for the admission of statements made by a person in furtherance of a conspiracy, if the statement was made during and in furtherance of the conspiracy. The Court needed to determine whether the conversations in question met the criteria for this exception and if they were relevant and probative to the charges against Cornwell.

The Court, in its decision, held that the conversations were indeed relevant and probative to the charges against Cornwell. The evidence demonstrated that Cornwell and the other individual were involved in a joint venture to obtain a firearm. The statements made during the course of this venture were made in furtherance of the conspiracy and were therefore admissible under the co-conspirator exception. The Court also found that the probative value of the evidence outweighed any prejudicial effect it might have had on Cornwell. Consequently, the admissibility of the conversations was upheld, and the convictions were affirmed.

Orders