Cornwell v The Queen [2007] HCA 12

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

Matter No S215/2006

RICHARD BRUCE CORNWELL APPLICANT

AND

THE QUEEN RESPONDENT

Matters No S281/2006 & S282/2006

THE QUEEN APPELLANT

AND

RICHARD BRUCE CORNWELL RESPONDENT

Cornwell v The Queen

[2007] HCA 12

22 March 2007

S215/2006, S281/2006 & S282/2006

ORDER

In Appeal No S281 of 2006 and Application No S215 of 2006:

1. Appeal allowed.

2. Application for special leave to cross-appeal granted and cross-appeal allowed.

3. Matter remitted to the Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6, and reconsideration of ground 5, in the appellant's notice of appeal to that Court.

In Appeal No S282 of 2006:

1. Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

P Roberts SC for the respondent in Matter No S215/206 and for the appellant in S281/2006 and S282/2006 (instructed by Commonwealth Director of Public Prosecutions)

T A Game SC with S J Buchen for the applicant in matter No S215/2006 and for the respondent in S281/2006 and S282/2006 (instructed by Ford Criminal Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cornwell v The Queen

Evidence – Competence and compellability of accused persons – Accused convicted following retrial of conspiracy to import cocaine – Accused gave evidence after indications that a certificate under s 128(6) would be granted – At retrial, Crown sought to tender cross-examination evidence from first trial – Evidence held to be admissible at retrial – Construction of s 128(8) – Whether s 128(8) precluded accused from relying on the certificate – Privilege against self-incrimination – Meaning of "fact in issue" under s 128(8) – Distinction between "facts in issue" and "facts relevant to facts in issue" – Whether evidence went to a "fact in issue" at the retrial – Whether retrial was a "proceeding" to which s 128(7) applied.