R v Cornwell; Cornwell v The Queen

[2006] HCATrans 428

[2006] HCATrans 428

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S125 of 2006 and S126 of 2006

B e t w e e n -

THE QUEEN

Applicant

and

RICHARD BRUCE CORNWELL

Respondent

Office of the Registry
  Sydney  No S215 of 2006

B e t w e e n -

RICHARD BRUCE CORNWELL

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 1.05 PM

Copyright in the High Court of Australia

__________________

KIRBY J:   Mr Game, you are here, but is Mr Roberts here?

MR GAME:   Mr Roberts’ chambers are not far away and he is returning.  I think if one waited for a minute, if you would be prepared to do so, I think he would be here quite shortly.

KIRBY J:   Yes, very well.  If it is of any help to you, Mr Game, we are inclined to call on you first in the matter, so you might give some thought to collect your thoughts.

MR GAME:   That is a gloomy prospect, your Honour.

MR P. ROBERTS, SC:   If the Court pleases, I appear for the applicant.  (instructed by Commonwealth Director of Public Prosecutions)

MR T.A. GAME, SC:   If the Court please, I appear with MR S.J. BUCHEN, for the respondent.  (instructed by Ford Criminal Lawyers)

KIRBY J:   I am sorry that you have been brought from afar, Mr Roberts.

MR ROBERTS:   I apologise, your Honour.

KIRBY J:   No, you are not with any fault at all.  Is it convenient to counsel for us to proceed with the list in its running order?

MR ROBERTS:   Certainly.

KIRBY J:   I have just indicated to Mr Game we are dealing now with the two applications relating to R v Cornwell.  I indicated to Mr Game that the Court was minded first to call on him in the application so that it will be clear what we are presently minded to do, unless you dissuade us from the course by your argument, is to grant special leave in the Crown’s application and refer your application to the Full Court to be reviewed before the Full Court when the matter comes before the Full Court.

MR GAME:   Do you mean Mr Cornwell’s application – Mr Cornwell’s ‑ ‑ ‑

KIRBY J:   Yes.

HEYDON J:   Because you do not appear for Mr Cornwell in that second application.

MR GAME:   If it is referred to a Full Court then obviously we will have to ensure that he is represented which will no doubt be asked, but we can deal with that, your Honour.

KIRBY J:   Yes.  That often is a problem that is solved once the matter is before the Court.

MR GAME:   Your Honours, can I say first that the statutory provisions under consideration are to be amended to deal with the situation of a retrial so the situation that is contemplated that occurred in this case is a quite unique one and is to be dealt with by statutory amendment.

KIRBY J:   I take the force of that but the case is still an important one for the parties.  Can I understand that if the Crown appeal were to succeed by the authority of this Court that would result in the restoration of the verdict of the jury, would it not?

MR GAME:   It would have to back to the Court of Criminal Appeal for the other grounds to be determined.

KIRBY J:   I see.

MR GAME:   What happened was that this ground and an unsafe ground were dealt with and the ground related to the unsafe ground, but ‑ ‑ ‑

KIRBY J:   Here we have a difference between Justice Howie and Judge Blackmore, both of whom are very able criminal lawyers who have appeared before us very many times.

MR GAME:   Yes, but, your Honour, the trouble is that Judge Blackmore misconceived entirely the exercise because he thought, and he was persuaded by the Crown not to follow Justice Howie’s decision, but there was only one task for Judge Blackmore and that task was to give effect to the certificate not to construe section 128(8) in a way that departed from the way in which it was construed by Justice Howie.  In fact, 128(8) had no relevance to the exercise that Judge Blackmore was engaged upon because 128(8) did not speak to those proceedings.  It spoke to the proceedings before Justice Howie.

KIRBY J:   Where do we find that section most conveniently?

MR GAME:   I will just hand it to you.  It has been provided by the Crown with the Commonwealth provision which has a different word in it.  I will just provide you with ‑ ‑ ‑

KIRBY J:   Hand that up, please.  Yes.

MR GAME:   What happened in this case was that Justice Howie said that domestic trafficking was not a fact in issue and that a certificate would be given in respect of the incriminating evidence about domestic trafficking.  That was not the subject of any appeal.  It could have been. The certificate was given and the evidence was given and it would not have been given otherwise.

So we come to section 128(8) and Judge Blackmore’s second judgment.  In his second judgment he was persuaded that none of the evidence, the subject of the certificate, was in fact trapped by the certificate because he reconstrued section 128(8) to say facts that were relevant to facts in issue but the trouble is – first of all, he is clearly wrong about that but, secondly, section 128(8) had nothing at all to do with the exercise before Judge Blackmore.  The reason is this.  Section 128(8) speaks in the present tense but the present tense is the present tense before Justice Howie.  This section does not apply in relation to the giving of evidence by a defendant being evidence that the defendant did an act, the doing of which is a fact in issue.  That is an issue before Justice Howie.  It has nothing to do with – that is the issue that Justice Howie has to determine when he in that present tense before him is granting the certificate.

Come to Judge Blackmore and all you have to do – all that Judge Blackmore can do is construe the certificate or apply the certificate and the certificate made it plain that the evidence could not be used in relation to domestic trafficking.  Subsection (7) says:

In any proceeding in NSW court:

(a)evidence given by a person in respect of which a certificate under this section has been given –

So that is a section that in effect speaks to the future but it is the past tense.  That section is the section that speaks to Judge Blackmore.  So when Justice McClellan said that Judge Blackmore clearly misconceived his function he clearly did.  The Crown really dug themselves their own ditch because they knew that Judge Blackmore had a different view of facts in issue so they persuaded Justice Howie to keep the certificate general for the avowed purpose of going back before Judge Blackmore and persuading him not to follow Justice Howie.

So it is a problem that they created for themselves knowing full well that the certificate protected all of the evidence about domestic trading.  If I could give you one example from the application book, and there are many, but if you look at page 28, paragraph 60, one of the conversations that the Crown got into evidence was a conversation of 4 April.  That is all about the domestic distribution of drugs for profit.  There was extensive cross‑examination by the Crown on this particular conversation at trial.  They got this evidence in, not because it was a fact in issue, but they got it on what I might describe as a Harriman basis, that is to say, establishing the relationship.

Nobody has suggested that that evidence was a fact in issue.  Judge Blackmore agreed with Justice Howie on that very issue but he made what I would describe as a fatal mistake which can be seen when you go to his second judgment which is at page 67 – or the relevant part of it is – of the application book.

KIRBY J:   Which line?

MR GAME:   It is at line 40.  At line 40 he is saying “I do not disagree with his Honour’s” view about what “a fact in issue” is.  As I have said before, it was no part of Judge Blackmore’s function to engage in this exercise but even so.  He then goes on to say:

But that is hardly the end of the issue.  Had the evidence been tendered for that purpose, namely –

and so forth.  But then the mistake he makes can be seen at the bottom of the following page, page 68, line 46:

Evidence that directly or indirectly established the existence of that agreement was evidence with respect to a fact in issue –

Then, over the page, page 70, line 35 “originally admitted goes to a fact in issue” and then, line 55, “went directly to establishing the existence of an agreement”.  So what has happened is he has accepted the construction of what “a fact in issue” is but he has changed the rules because what he has done is he has said all evidence of this description satisfies the rules of relevance.  If what was said by Judge Blackmore was correct then, as the Court of Criminal Appeal pointed out, this meant that the Crown having led the Harriman‑type evidence Mr Cornwell could not give evidence at all in the second trial and that is the point made by Justice McClellan at paragraph 113.  If what Judge Blackmore said is correct, not only could Mr Cornwell not give evidence he could now be prosecuted for the very evidence he gave in the trial before Justice Howie.

If we go back – if this really is an issue about what is a fact in issue, which, as I say it is not, but if it is, which is what the Crown has to contend, it is far too late to appeal on a 5F, which is an interlocutory appeal, a ruling made by Justice Howie in a trial some three years ago which resulted in the appellant giving evidence at a trial which is long over in which a 5F appeal would be incompetent and in which the Crown seeks an order which the Court could not possibly make, which is the quashing of the certificate.

These are all problems that the Crown created for itself by, as it were, persuading Justice Howie to take one course and then following then – and I might say the Crown declined to co‑operate either in determining whether it was in the interests of justice or in identifying which portions of evidence would be the subject of the certificate, then going back before Judge Blackmore and saying to Judge Blackmore, “You don’t have to follow Justice Howie” and Judge Blackmore had already signalled that he had a view about facts in issue which would have signalled to the Crown that - sorry.

So, what Judge Blackmore had said, which had left the Crown thinking that they would be able to do this was said in Judge Blackmore’s first judgment.  I will just give your Honours the page for that.  That is at page 59.  His Honour thought, and this is the mistake that he made – this is at the bottom of page 59 – that somehow or another he could visit – you see this from line 40 on and particularly at lines 50 to 60 – he thought that somehow he could visit the issue about what was “a fact in issue” and that the evidence would be admissible, or might be admissible, because he would find a way of in fact construing it as not being caught by the certificate.

If that were the case then, of course, Justice Howie would never have given the certificate in the first place.  So (a), Justice Howie was clearly correct; (b), Judge Blackmore, in this respect, was clearly incorrect and he was clearly incorrect in – then going on in the second judgment, accepting Justice Howie’s construction of what was a fact in issue, then, in effect, changing the language of the section construing ‑ ‑ ‑

KIRBY J:   Tell me a little more about the proposed amendments to the Evidence Act?  What is the source of your knowledge on that?

MR GAME:   The source of my knowledge is the report of the New South Wales Law Reform Commission.

HEYDON J:   Just a moment, that is a report of the Commonwealth, New South Wales and Victorian Law Reform Commissions, is it not?

MR GAME:   It is outside – we made the mistake of thinking that you were about to adjourn and I am sorry, but, it says, in effect, that by statutory amendment section 128(7) would be amended so that it did not apply in relation to a retrial.

HEYDON J:   But that does not mean it is going to happen.  The government has not indicated – no government has indicated any intention to enact that proposal yet, has it?

MR GAME:   The report is fairly recent, your Honour.  I think that it is not a question of silence.  I think it is a question of time.

HEYDON J:   But it is not true to say that it is certain that the legislation will be changed.  I mean, it may well be, but ‑ ‑ ‑

MR GAME:   No, that is true.  That is perfectly true, your Honour, but can I say this, that the way in which these provisions were construed by the Court of – I am changing the – I will just read what it says ‑ ‑ ‑

KIRBY J:   We would accept that you say that the three Law Reform Commissions have recommended that it be amended in that uniform Evidence Act.

MR GAME:   Yes, and it is the three, I am sorry, yes.  May I say also, though, that the approach that the ‑ ‑ ‑

KIRBY J:   My bitter experience teaches me not to assume that things will happen then.

MR GAME:   I would have thought a relatively uncontroversial amendment of that kind ‑ ‑ ‑

KIRBY J:   Introducing it in Victoria may prove controversial, of course.

HEYDON J:   The problem is that this is part of an enormous report which is intended to try and achieve uniformity over the whole country, but certainly in the three jurisdictions of which the Law Reform Commissions are sitting.  In the course of acceding to a proposition about one part of the Act it may make it impossible for a given government to accept all the changes.  We are hopping about a bit, are we not?  We started with 128(7), then you dealt with other grounds of appeal, now we are back to 128(7).  Is that the correct ‑ ‑ ‑

MR GAME:   Yes, your Honour.  It is all the same ‑ ‑ ‑

HEYDON J:   It is not all the same.  Some of your points would run – let me start again.  If you were right about 128(7), some of your other points would be effective, but is not the error, if it is an error, about 128(7) a freestanding issue?

MR GAME:   The only conceivable separate argument there is whether or not the proceedings before Judge Blackmore were a proceeding caught by subsection (7) and Judge Blackmore concluded that they were and the Crown now has to argue that they were not.  But, “In any proceeding” is a protective provision and should be read broadly.  Section 128(8) is a section that takes away protection and should be read narrowly.  So, section 128(7) – we would submit that it is not seriously open to argument that “In any proceeding in a NSW court” would not apply to a trial before Judge Blackmore.  That is the short answer to that point.

KIRBY J:   It is a relatively confined point but one not without importance and, particularly, so long as the Act is not reformed.  It is important in this trial, which was a substantial trial, so that it is important for the outcome for the parties but also for the general administration of the Evidence Act.

MR GAME:   Yes, but, your Honour, he had the certificate and he gave the evidence.

KIRBY J:   I realise that.  I understand the argument you put.  We are not now troubled, are we, by the Crown’s objection to Justice Howie’s giving a certificate belatedly?  That is not a matter that is raised before us?

MR GAME:   The Crown is appealing against Justice Howie’s granting of a certificate.  They have their own separate appeal.  In these proceedings - and this is one of the points I was making – they are endeavouring to get at, as it were, the judgment of Justice Howie and to have it held to be incorrect.

HEYDON J:   That is S126/2006?

MR GAME:   Yes, and, if they do not succeed with – and that is why I was saying that it is really for procedural reasons far too late to be complaining about what Justice Howie did and very doubtful that section 5F would even give them the relief.

KIRBY J:   Justice Howie said he had no discretion.

MR GAME:   That is correct.  He had said he would grant the certificate, he said what it covered and then the witness had been required to give the evidence in relation to the domestic supply which had been introduced by the Crown into the case.  So, apart from this single question about what any proceeding is, for the Crown to make any progress in this appeal they really have to strike at Justice Howie’s judgment many years after that judgment has had its effect and many years after that trial.

KIRBY J:   Yes.

MR GAME:   It is in respect of Justice Howie’s judgment it is both a question of the competence of an appeal under section 5F to, as it were, quash a certificate which is really – it is difficult to see how that could apply under section 5F but, even if one could, discretionary reasons to a trial that was over and done with would make it most unlikely that a 5F appeal would ever succeed.  Those are the procedural reasons that relate to that.

In respect of Judge Blackmore, as one can see, I hope, Judge Blackmore misconceived what it was that he was actually to do because he thought that he was determining what fell within 128(8) when, as I said before, he only had one job which was to determine what were the terms of the certificate and apply it.  Once he was satisfied of subsection (7), which was that it was “any proceeding” and he was satisfied of that, and as I took your Honours before, Judge Blackmore made the further mistake of not only construing 128(8) in a particular way, but then driving it off into questions of pure relevance because he said they were facts that went to facts in issue.

In summary then, in our submission, (a) Justice Howie was clearly correct in what he determined was “a fact in issue”; (b) discretionary and other reasons make it too late to complain about that; (c) Judge Blackmore misconceived what he was to do; (d), that only leaves an issue about what is “any proceeding” and in my submission that is all that would be left in this case, were the Crown granted special leave.

KIRBY J:   Yes.

MR GAME:   That is all I wanted to say about that.  Can I just, before I resume my seat, in respect of taking up what your Honour Justice Kirby said before in respect of Mr Cornwell’s application, if you are minded to grant the Crown special leave and refer Mr Cornwell’s application, may two things happen?  May he have leave to amend, if required, if it is to be referred, his special leave application?

KIRBY J:   I was minded that the Court would refer his application for special leave to the Full Court so that he could renew before the Full Court when it has a better understanding of all the circumstances and facts of the case whether it would grant him special leave on the points he wishes to agitate.

HEYDON J:   But even apart from his special leave application he would have a right to apply for special leave to cross‑appeal against the Court of Appeal’s orders.

MR GAME:   Yes, that is correct, he would.  He could put on a cross‑appeal.  It is the same, yes.

HEYDON J:   So the effect of permitting his application for special leave to be heard at the same time would be the same and there would be no problem in amending it.

MR GAME:   Yes.  One last thing before I resume my seat, material that was strictly privileged was put in by Mr Cornwell and those transcripts have notes of instructions and things on them.  I would ask, perhaps, that those application books could be returned to the solicitors so that, in effect, they go off the file or an order be made that they not be released.

HEYDON J:   You want some order?

MR GAME:   I would like an order, yes.

HEYDON J:   Could you either write it out on a piece of paper or dictate it slowly?

MR GAME:   Yes.  The order I would like is, I would like an order that the supplementary book filed by Mr ‑ ‑ ‑

KIRBY J:   It is the joint supplementary application book, is that it?

MR GAME:   No, it is called the “SUPPLEMENTARY BOOK” in Mr Cornwell’s application for special leave be returned to the applicant.

KIRBY J:   What is the ground for doing that?

MR GAME:   The ground is that mistakenly privileged material has been put into the book, which are his instructions.

KIRBY J:   Is it your desire to give him some advice in relation to that?

MR GAME:   Yes, your Honour.

KIRBY J:   All right.  We will hear what Mr Roberts has to say about.

MR GAME:   Yes.  The Crown, I think, have already returned their books when it was appreciated what had occurred.

KIRBY J:   Yes, thank you.  What do you say, Mr Roberts, about – could you just explain to me the two – draft notice of appeal – the one at 140 which is the one that challenges Justice Howie’s decision to grant the certificate and the failure of the Court of Criminal Appeal to quash that certificate - that is at 141, grounds 2 and 3 – and the substantive grounds of appeal which relate to the same decision of the Court of Criminal Appeal?  Why were they not all in the one application?  They are both in the Crown appeal.

MR ROBERTS:   Because they were different matters and apparently the procedure ‑ ‑ ‑

KIRBY J:   Why are they two different matters?  Why are they not the one matter concerning the same parties and the same decision of the Court of Criminal Appeal?

MR ROBERTS:   Because the application to quash the certificate issued by Justice Howie was a section 5F of the Criminal Appeal Act appealed by the Crown and with a different proceeding from the proceeding initiated by the respondent here, Mr Cornwell, challenging the conviction recorded at trial.  So they were different proceedings.

HEYDON J:   That is not Justice Kirby’s point.  On 118 we have one draft notice of appeal by R v Cornwell but that deals with the Court of Criminal Appeal file numbered 1973 of 2005.  In that sense it is a separate proceeding.

MR ROBERTS:   Yes.

HEYDON J:   Then there is another one on page 140 which is an appeal from a judgment of the Court of Criminal Appeal given on the same day but it is from a different matter at that level, 1727 of 2004.

MR ROBERTS:   Because the Court of Criminal Appeal gave judgment and heard both matters together.

KIRBY J:   But why are they not a single matter in this Court being appeals from decisions of the Court of Criminal Appeal as between the same parties concerning the same matter in contest between them?

MR ROBERTS:   All I can say in answer to that is that that is the way we were told that we were to file the documents and we ‑ ‑ ‑

KIRBY J:   Far be it for me to question our Registry with their great wisdom.

MR ROBERTS:   That is right, your Honour.  We got along with what we were told to do.

KIRBY J:   Yes.  I can understand now how it came about.  Let us get to the substance of it and if we can go to page 141 where you are still challenging Justice Howie’s decision to issue the certificate.  What do you say to Mr Game’s point that that is a lot of water under the bridge and it is not a matter that this Court would be interested to revive?  On the face of it his Honour said he would grant the certificate.  It is just a slip that it was never actually done, is it not?

MR ROBERTS:   Your Honour, we did not only challenge or seek to challenge in the 5F application granting the certificate.  We sought to go back to the ruling that was made.  We said we were within time but even if we were not you can still get leave in relation to an out of time 5F application, but we say that time ran from the time that his Honour actually issued the certificate and had a hearing in relation to it and we were within time and we just went back.  We challenged the issuing of the certificate, the judgment by which his Honour said the privilege pertained to the putative evidence of Mr Cornwell and the decision that 128(8) did not apply to that evidence.  That is how we sought to do it.

The Court of Criminal Appeal said it did not say that they could not deal with the matter.  They expressed some doubts, but, your Honour, we say that it is quite clear that the court could deal with the matter if it needed the extension of time which we say it did not anyway.  That was the only thing standing in the way.

Basically, of course, the seminal decision which is at the heart of this case is his Honour Justice Howie’s interpretation of 128(8) of the Evidence Act and saying that Mr Cornwell had privilege against self‑incrimination in relation to the evidence that he proposed to give about how it was that he met up with his co‑conspirators.  His Honour gave a judgment in relation to what 128(8) said and basically what we say, that decision is plainly wrong.  It did not matter what a fact in issue was because section 128(8) reads:

being evidence that the defendant:

(a)      did an act the doing of which is a fact in issue –

That is what the section says.  His Honour then looked at what “a fact in issue” was and looked at various cases but, basically, what it is all about is evidence of that.  The wording of 128(8) is all about, we would respectfully submit, the dichotomy between facts in issue and credit.  This is what it is all about.  The discourse that often goes on, and we have referred your Honours to Attwood, and just by way of illustration more recently – I am just looking for a case where that sort of discourse arose and could I hand up an extract from the decision in which your Honour Justice Kirby was a member, a decision of Palmer.  This was a case to do with whether or not an accused could be cross‑examined about whether a witness had a motive for lying.  Your Honour may recall that.

In the course of looking at this, Justice McHugh was looking at this problem about facts in issue and credit and how they intersect.  This has always been a problem in the criminal law and it is the reason, we suggest, that 128(8) was worded the way it is.  It is not about reinventing the wheel and making a revolutionary impact in criminal trials.  It specifically excludes 128 from evidence of facts in issue.  That is what it excludes.  Justice Howie has read it as including that because he has not looked at the word “evidence” and has not looked at this other material.

KIRBY J:   Judge Blackmore accepted your submission.

MR ROBERTS:   Judge Blackmore said – of course it is “a fact in issue” is what Justice Howie said it was but the section is all about evidence of a fact in issue.  He then looked at how it was and why it was that the certificate was issued in the first place and how it came about in those proceedings.  How it came about was when the respondent, Mr Cornwell, the accused, when he was called to give evidence, very early in his evidence‑in‑chief he said, “I want to give some evidence”, in effect, “about how it was that I came across the co‑accused who I am accused of – who was involved in not only the local distribution but the big importation which was to come.  It was part and parcel of the same thing.”

They were dealing in drugs, using that money to fund a large importation of drugs in the future and the discussions were business discussions that went into evidence in which they are discussing how the market is going, the effect of the arrival of a large quantity of cocaine and how it was going to work and what would affect the market when this large quantity of cocaine arrived.  That was the evidence‑in‑chief.  That was our case.

It was admitted by his Honour because despite the fact there is reference to local cocaine distribution because that evidence was vital evidence that pointed to the involvement in the conspiracy.  That is why it was admitted.  The judgment is reported in 57 NSWLR.  Your Honours, in effect, later on in the piece, what my friends were saying to Judge Blackmore and to the Court of Criminal Appeal is even though this evidence was admitted as evidence – very important evidence that showed that Cornwell was involved in the conspiracy and was admitted for that purpose, it was not evidence that the defendant did an act, the doing of it, which was a fact in issue.  It is patently absurd.  If it falls within the admissible evidence because it proves that, it must perforce, fall within subsection (8) otherwise it would be ludicrous.

What happened though, when Justice Howie issued the certificate and misconstrued this section, we say, but he never made it clear because it was the evidence‑in‑chief and it appeared to relate to evidence that was new and outside the ambit of the Crown case.  It is not made clear, but that appears to be what his Honour had in mind.  This was this vital error in this case which is going to have profound implications in the future, if that interpretation is correct, that somehow or other privilege arises.  This evidence should never have been admitted in the first place, if that is so.  There is a privilege against self‑incrimination because it encompasses evidence of another offence.  Not only is this novel, it is revolutionary in the field of criminal law and it will just change the whole way that cases are conducted, if that is right.

What happened from then on was that when it went for the retrial before Judge Blackmore nobody for a moment thought that the certificate would have application until it was said, “Well, we construe 128(7) as applying to this trial and we construe the certificate as applying to the cross‑examination.”  Nothing was ever said about the cross‑examination.  This was what was tendered against Cornwell in the second trial.  The cross‑examination was centred almost entirely on the Crown evidence‑in‑chief, that is, these conversations.  It went on for page after page, “Did you say this?”  “What does it mean?”  Of course, it intersects and you cannot understand what is said later on unless you understand what they are talking about, present dealing, future dealing and how it intersects.

All of this evidence that was – the cross‑examination that was sought to be tendered we said was not covered by the certificate because what Justice Howie had in mind, so it appears, was some new evidence that Mr Cornwell might give in his case that somehow should be protected.  We are not saying Justice Howie was not wrong.  He clearly was wrong but he was not as wrong as had been suggested later on.  If that is correct, what Justice Howie has said is going to fundamentally affect the way that criminal trials take place in this State.

KIRBY J:   Yes.  We are not inclined to need further assistance on that point at this stage, but what do you say about Mr Game’s submission that the supplementary book in Mr Cornwell’s application should be returned to him because ‑ ‑ ‑

MR ROBERTS:   We have no objections to that, your Honour.  No objection at all.

KIRBY J:   No objection, no.

MR ROBERTS:   We have given ours – we were served with a copy which we did not read and we have given them back so I do not see why it should not ‑ ‑ ‑

KIRBY J:   The Crown has already returned its copies of the book, is that correct?

MR ROBERTS:   Yes, we have.

KIRBY J:   Yes, very well.  Thank you very much.

MR ROBERTS:   Thank you, your Honour.

MR GAME:   Your Honours, it is clear that the Crown wish to get at, as it were, Justice Howie’s decision about what is a fact in issue.  May I take your Honours to the application book at page 108.  In paragraphs 97 through to 100 your Honours will see very powerful reasons why now, as it were, it would be inapposite for this Court to engage in an exercise in reviewing Justice Howie’s decision.  That is the first thing I wanted to say. 

The second – and as I have said before – it is doubtful whether or not section 5F could even apply to such a situation.  Second, the certificate does not say what Mr Roberts has it saying.  The certificate is at page 51.  It is not what Mr Roberts says at all.  It is a certificate that protects Mr Cornwell in respect of his involvement “in the supply or trafficking in narcotic goods” in that period.  All it does is protect him in other proceedings other than the hearing before Justice Howie.  That is all it does and that is the way

it works.  It has no revolutionary effect on anything.  This all comes about because, as I said, the Crown led the evidence in the first place leading evidence of other transactions, applying Harriman.

That leaves, in my submission, an untenable construction of 128(8) which is that somehow or another – and I would emphasise that Judge Blackmore agreed with Justice Howie but went on in the way in which I have said – that somehow or another words being evidence enables one to change the meaning of section 128(8) to mean not evidence of a fact in issue but evidence that went to a fact in issue as opposed to an issue of credit and that is not what section 128(8) says.

If your Honours look at Justice Howie’s judgment you will see at page 37 – and I might say he did not think that the whole lot was an amorphous mass in the sense that might be suggested.  He said:

To some extent the different types of material in the conversations are intertwined.

You see that at page 36, line 15.  His Honour said it twice and I have given you an example of 4 April on which the Crown cross‑examined in detail about domestic supply.  The Crown was actually trying to get at the domestic supply admissions; that is why they wanted the evidence.  At page 37 – and they could easily have co‑operated in working out what was and was not in it, but if you look at paragraph 8 on page 37 it is clear that Justice Howie is correct about what “a fact in issue” is, “any matter that must be ultimately determined”.  Then at paragraph 15:

I am firmly of the view that the issue whether the accused, or any one of them, were involved at the time of the alleged importation in the trafficking of narcotic goods is not a fact in issue.

That could hardly be questioned, and the construction that his Honour placed on 128(8) could hardly be questioned.  In my submission, these decisions do none of the things that Mr Roberts suggests that they do.  The case is a terribly narrow one.  It is a problem that the Crown brought on itself and the issues of statutory interpretation are in fact tolerably clear. 

The effect on the appellant in respect of the fact that he has given the evidence would be wholly unjust for the reasons that were given by Justice McClellan, so, in our submission, special leave should be refused in this case.

KIRBY J:   Yes, thank you, Mr Game.

The Court grants special leave to appeal in matters Nos S125 of 2006 and 126 of 2006, noting that those matters are interrelated and will be heard as one single appeal.  The Court stands over to the Full Court any application which Mr Cornwell wishes to make for special leave in matter No S215 of 2006, in the event that Mr Cornwell does not file a notice of cross‑appeal seeking special leave for that purpose.

The Court directs that the supplementary books filed by Mr Cornwell in his matter be returned to Mr Cornwell on the basis that they contain privileged matter upon which it is desired by counsel that Mr Cornwell be given advice.  It is noted that the case is a confined one and essentially raises a confined question which could be disposed of in one day.

AT 1.50 PM THE MATTERS WERE CONCLUDED