R v Diez-Orozco and Lawrence [2003] NSWSC 1050

New South Wales Supreme Court

CITATION : R v Diez-Orozco and Lawrence [2003] NSWSC 1050 revised - 19/08/2004 HEARING DATE(S) : 04/02/2003 - 10/07/2003 JUDGMENT DATE : 23 June 2003

JUDGMENT OF : Howie J at 1 DECISION : His Honour intends to give the jury a warning under s 165 in respect of the use of evidence of co-accused generally and about the use of the accused Cornwell's evidence in particular.

CATCHWORDS : Criminal Law and Procedure - Judge's summing up - whether warning under s 165 should be given where co-accused as a witness gives evidence implicating another co-accused. LEGISLATION CITED : Evidence Act 1995 - s 165 CASES CITED : Webb v R 181 CLR 41 PARTIES : Regina v Juan Guillermo Diez-Orozco, Regina v John Lawrence FILE NUMBER(S) : SC 70221/02; 70220/02 P. Roberts SC with I. Bourke - Crown COUNSEL : P. Young - Accused Diez-Orozco C. Waterstreet - Accused Lawrence Commonwealth DPP - Crown SOLICITORS : Neil J. O'Connor & Associates - Accused Diez-Orozco King's Lawyers - Accused Lawrence

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

MONDAY 23 JUNE 2003

70221/02 R v Juan Guillermo DIEZ-OROZCO 70220/02 R v John LAWRENCE

JUDGMENT – see page 5325 of transcript

1 HIS HONOUR: In this case application has been made on behalf of the accused Diez and the accused Lawrence that I give a warning under s 165(1) in respect of evidence given by the accused Cornwell, which may have tended to implicate Diez and Lawrence in the supply of cocaine and indirectly in the offence charged in the indictment. 2 The submission is that Mr Cornwell, as a witness, notwithstanding that he is also an accused, falls within s 165(1)(d) of the Evidence Act. 3 Mr Boulten on behalf of Cornwell, asked that I not give any direction relying upon 165(3) of that Act on the basis that there would be good reasons for not doing so. 4 During the course of the debate about this matter I was referred to the case of Webb v R 181 CLR 41, in particular the judgments of Deane J and Toohey J, although apparently Brennan J had a contrary view. Those two judgments indicate that it might be appropriate, and in some cases may be necessary, for a trial Judge, where there are co-accused and where one of those accused gives evidence tending to implicate another, to give a warning in accordance with what is now being requested of me. 5 Those judgments stress that at the end of the day it is for the trial judge to do what he or she deems is necessary in order to resolve the competing interests that arise in a joint trial where one accused gives evidence in his own defence but may, in the course of that evidence, implicate a co-accused as being guilty of the charge before the court. 6 Four accused gave evidence in this trial. In the case of the accused McDougall and Norris, no suggestion was made during cross-examination by counsel for any of the other accused that they had in some way given incorrect evidence in relation to their dealings with co-accused. 7 With respect to Mr Francis, Mr Hogan, on behalf of Mr Dicecco, put to him that one part of his evidence in relation to a meeting between him and Dicecco at Melbourne International Airport was not correct. There is conflict to some degree, between the account given by Francis in evidence and that given by Dicecco in his record of interview. 8 In respect of the accused Cornwell, there was some cross-examination of him to suggest that the roles that he had asserted were carried out by himself, Diez and Lawrence in the distribution of cocaine at a time when the importation, the subject of the charge was being discussed, was not as given by Cornwell in evidence. Cornwell, in effect, suggested that he was the intermediatory between Lawrence, who was supplying drug on behalf of Diez, and Diez, who was receiving money as a result of the supplying of drugs by Lawrence. 9 It was put to Cornwell by counsel for Diez that in fact Cornwell had a more positive role in the actual distribution of the drug. It was put to Cornwell by counsel for Lawrence, that Cornwell was not telling the truth generally in respect of his evidence as to the role which Lawrence played in the distribution of drugs. 10 There is always a difficulty arising where a co-accused gives evidence in a case such as this of the jury using some part of that evidence to support the Crown case against another co-offender. This is so even where the accused giving evidence does not intend that the evidence he gives will be used in support of the Crown case. It is a matter for the jury to determine what they make of the evidence of an accused, as with any other witness. They can adopt some of what he says and reject other parts of it. They can, if they wish, use evidence of his dealings with a particular accused as exculpating himself but as implicating the other accused. There is always a danger in such a situation that one accused may downplay his role in the venture with the consequence that even unintentionally he increases the role played by another co-accused in the facts and circumstances giving rise to the offence. 11 Mr Boulten, on behalf of Cornwell, submits that it would be overly prejudicial and unfair to give any direction to the jury in respect of the evidence given by his client. In particular he maintains the submission, which found some support by Brennan J in Webb, that a jury would find it difficult to be able to dissect the evidence of an accused into to distinct parts being evidence supporting the defence generally or his own defence and evidence which may implicate an accused or a co-accused and therefore support the Crown's case. With greatest respect to that point of view, I think that is one of the least difficult things that the jury might have to do in this particular case. I do not share the same misgiving that a jury cannot understand that, if they take the evidence of an accused and use it to assist the Crown, then, when dealing with the evidence for that purpose, they should consider it differently than they would if they were simply going to consider it as evidence to assist the accused himself or some other co-accused. 12 It seems to me that generally in this case there is a need for the jury to understand that they can use the evidence of one accused against another, that is, as evidence to support the Crown case that the co-accused was implicated in the offence. But before they did so, they should look at that evidence with some caution. In relation to the evidence of Cornwell, it seems to me that I should go further and indicate to the jury that, if they are going to use his evidence as to the involvement of Diez and Lawrence in the distribution of drugs in support of the Crown case against those accused, they should take into account that Cornwell may have a reason to have downplayed his own involvement in the distribution of drugs at the expense of Lawrence and Diez. 13 I intend to make it perfectly clear that I am not in any way suggesting that any of the accused's evidence should be considered to be potentially unreliable either generally or specifically, except if the jury are going to use that evidence in support of the Crown case. 14 It seems to me that having regard to the terms of s 165 of the Evidence Act Lawrence and Diez are entitled to have a warning given in relation to the evidence of Cornwell where it might implicate them in the offence charged. Although this may indicate to the jury that there might be some potential unreliability in the evidence of Cornwell, I do not think the jury would find that particularly surprising. I do not think that a jury would have any difficulty in understanding, even without me giving the warning, that when a person gives an account of his involvement with other persons in serious criminal activity, there is always the risk that he may, for his own purposes, downplay his own role and increase that of the other persons. 15 I do intend to give the jury a warning under 165 in respect of the use of evidence of co-accused generally and about the use of Cornwell's evidence in particular. **********