R v Cornwell [2003] NSWSC 660

New South Wales Supreme Court

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. I admitted the evidence of conversations suggesting that Cornwell and Diez and Cornwell and Lawrence were involved in the distribution of drugs on the basis of the principle set out in Harriman v The Queen (1989) 167 CLR 590. I do not intend to indicate again why I believe that this evidence was highly relevant to the Crown case. 4 In the course of the debate about whether, if Cornwell gave evidence, he could claim privilege against self incrimination in respect of any question the answer to which would tend to suggest that he was involved in criminal offences other than the offence charged, the question arose as to whether s 128 of the Evidence Act applied. That section concerns the circumstances in which a witness can claim the privilege and the response of the court to such a claim. The section empowers a court, where it is in the interests of justice to do so, to require the witness to answer the question, notwithstanding the claim, but to provide the witness with a certificate protecting the witness from use later being made of the answer given to the question to which objection is taken. 5 Subsection 128(8) provides: