Reported Decision : 160 A Crim R 243 198 FLR 406 New South Wales Court of Criminal Appeal CITATION: CORNWELL v REGINA REGINA v CORNWELL [2006] NSWCCA 116 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 2-3 February 2006 JUDGMENT DATE: 11 April 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 116; Adams J at 117 DECISION: 1. Appeal of the appellant is upheld and a new trial ordered; 2. The Crown appeal is dismissed CATCHWORDS: CRIMINAL LAW - conspiracy to import a commercial quantity of cocaine - s 128 certificate - admissions - failure to adequately sum up defence case - unreasonable verdict - proviso - application of the "this jury" test - whether miscarriage of justice Customs Act 1901 (Cth) LEGISLATION CITED: Evidence Act 1995 Criminal Appeal Act 1912 CASES CITED: Weiss v The Queen [2005] HCA 81 PARTIES: Richard Bruce Cornwell (Appl in 2005/1973) Cth Crown (Appl in 2004/1727) FILE NUMBER(S): CCA 2005/1973; 2004/1727 COUNSEL: P Roberts SC (Crown) T A Game SC/S J Buchen (Appl) SOLICITORS: Commonwealth Director of Public Prosecutions (Crown) Ford Criminal Lawyers (Appl) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0747 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 02/02/2006 IN THE COURT OF CRIMINAL APPEAL 2005/1973 2004/1727 McCLELLAN CJ at CL HULME J ADAMS J TUESDAY 11 APRIL 2006 CORNWELL, Richard Bruce v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was convicted following a retrial with James Herbert Bolus and others of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms), an offence against s 233B(1)(k) of the Customs Act 1901 (Cth). The appellant revised his grounds of appeal which in final form are as follows: 1. The learned trial judge erred by admitting against the appellant evidence which was the subject of a certificate issued pursuant to section 128 of the Evidence Act. 2. The learned trial judge erred by referring to the appellant's former evidence as (a) an admission tendered against the interests of the accused and (b) "a possible version of the facts." 3. The learned trial judge erred by directing the jury that conversations involving the appellant could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy. 4. The learned trial judge failed to adequately sum up the defence case. 5. The verdict is unreasonable and cannot be supported by the evidence. 2 The Court has received written submissions in relation to each ground but heard oral argument in relation only to grounds one, four and five. At the hearing the Court indicated that if the appeal could not be resolved after consideration of those grounds further oral submissions would be received. As it happens, I am satisfied that the appeal can be resolved by consideration only of grounds one, four and five. Ground One 3 At issue in ground one is the appropriate construction of s 128 of the Evidence Act and its application in the particular circumstances of this case. The appellant was initially tried before Howie J and a jury together with a number of co-accused. Although some of the accused were convicted, the jury was not able to agree in relation to the appellant and a new trial was ordered. This required the appellant to again be arraigned and a new indictment was prepared. 4 At his first trial the appellant gave evidence. He did so after consideration had been given by the trial judge to whether or not a certificate would be granted pursuant to s 128 of the Evidence Act 1995. The trial judge granted a certificate, although it did not formally issue until much later, and the appellant gave evidence. 5 At his second trial the Crown sought to tender the transcript of the appellant's evidence given in cross-examination. This was opposed, but the trial judge ruled that he would admit it. His Honour gave a narrow construction to the operation of the certificate granted by Howie J. After it became apparent that the trial judge would admit the transcript of the cross-examination, the appellant sought the tender of the whole of his evidence which in fact occurred. The appellant did not give oral evidence at the second trial 6 The appellant submits that the trial judge, at the second trial, erred by admitting the whole of the transcript of his cross-examination and accordingly submits that the trial miscarried. The fundamental submission is that the certificate issued by Howie J operates in accordance with its terms and prohibited the tender, at the very least, of some of the appellant's evidence given at his second trail. 7 The Crown responds in two ways. Firstly, it is submitted that the trial judge was correct in construing the certificate in a manner which allowed the admission of the whole of the transcript of the appellant's examination at his first trial. Secondly, the Crown brings an appeal pursuant to s 5F of the Criminal Appeal Act 1912 and submits that this Court should now determine that the certificate issued by Howie J was not authorised by s 128 and should be quashed. If this occurs, it is submitted that no question of error in the admission of the evidence could arise. The conspiracy – the Crown case 8 The conspiracy with which the appellant was charged involved an alleged agreement between the appellant and John Lawrence, as the principals, and a number of other persons to import 120 kilograms of cocaine from Columbia. The Crown alleges that the drug importation venture involved cooperation between two groups. One group was operating in South America and was to obtain the drugs and conceal them in a ship which would transport them into Australian waters. The Australian group would arrange to pick up the drugs and bring them into Australia. 9 An eleven metre sailing vessel named the "Flaning" was utilised for the enterprise. On board was a Boston whaler dingy with the cocaine concealed within its structure. 10 The person liaising between the Columbian group and the Australian group was alleged to be Juan Guillermo Diez Orozco ("Diez"), an Australian citizen of Columbian origin. He became involved in making the arrangements and liaising with the Australian end of the venture. He also played a significant role as an interpreter. 11 It is alleged that the Australian arm of the venture was organised by the appellant and his associate Lawrence. From mid 2000 Lawrence had been under surveillance by the National Crime Authority as he was suspected of involvement in illicit drug activity. It was during this surveillance that the National Crime Authority learned of the proposed importation. 12 In early 2001, the appellant commenced looking for a boat that was capable of effecting a rendezvous off the Australian coast with the boat carrying the cocaine from South America. This was done and arrangements were made to use the premises of a friend of Lawrence, David Norris at Telegraph Point near Port Macquarie as the base for the drug retrieval operation. Lawrence also enlisted James Bolus, whose appeal has been heard together with that of the appellant, to assist in the acquisition of a motor vehicle suitable to tow the Zodiac craft which they had purchased and to organise payment for that craft. The Crown alleges that Bolus' primary object in relation to these matters was to ensure that there was no discernible association between Lawrence, the boat and the vehicle. Bolus allegedly became Lawrence's confidante. 13 A four-wheel drive vehicle was also purchased and registered in the name of one of the other alleged conspirators. 14 On 8 April 2001 the Flaning departed from Panama with the cocaine in the dinghy on board. In early May, Lawrence, McDougall (an alleged conspirator) and another person by the name of Dominic Brokenshire ("Brokenshire" or "Brock") travelled to Melbourne to collect the boat known as a Zodiac to use in the enterprise. The funds for the acquisition of the boat were paid by way of cash into an account of the broker by Bolus, using the false name of Mathew Benns. 15 The boat was taken to Sydney where it was stored and was later collected by Lawrence, McDougall and Brokenshire and was towed to Telegraph Point. 16 The alleged conspirators ultimately determined an appropriate rendezvous point with the drugs at a position 120 miles off Port Macquarie. On 24 May 2001 Lawrence, Diez and another member of the operation, Wouter, travelled to Telegraph Point to prepare the Zodiac for the enterprise. They took it for a test-run on 19 June 2001 at which time the National Crime Authority had been continuing its monitoring activities. Apparently the National Crime Authority wrongly believed that the drugs had been collected and they arrested Wouter, Norris, Lawrence and another person, Gladman after the Zodiac had returned that evening. When he was questioned, Gladman agreed to assist the National Crime Authority and not divulge that fact to the others involved in the venture. The other four who had been arrested were all released. 17 Following their release Lawrence, Wouter, Norris and Gladman discussed the fact that the operation had been compromised. Nevertheless a decision was made that the venture should continue and by this time the Flaning was well on its way to Australia. The plan was changed and it was decided to locate a suitable shallow part of the sea off the Australian coast where the drugs could be deposited and later retrieved. 18 Eventually the Kelso Bank, which is about 350 miles off the Queensland coast, was chosen as the site to deposit the drugs. The cocaine was packed into cylinders and tied down with chains and marine batteries before being put into the sea. The Flaning, minus the drugs, arrived in Southport, Queensland on 7 July 2001. Arrangements were made for a number of persons living in the Philippines, including an Australian named Bill Percy, to become involved in the venture to retrieve the drugs. However, the National Crime Authority's investigations proved successful and, ultimately, Wouter was arrested at Sydney airport as he was about to leave for South America. 19 On 6 August 2001 Wouter, members of Australian Customs, the National Crime Authority and Queensland police went by boat to the drug deposit site at Kelso Bank. Scuba divers located chains, wire and marine batteries but the containers with the drugs were not found. 20 Between 5 and 9 August 2001, the remaining known participants in the venture were all arrested. Some of the conspirators pleaded guilty and were sentenced, but the others stood trial before Howie J. The appellant's involvement – the Crown case 21 The Crown alleges that the appellant was a prime mover in the Australian arm of the venture. It is alleged that the appellant reached agreement with Diez in relation to the collection, receipt and distribution of the cocaine which was to be imported. In order to minimise his chances of detection and arrest the appellant brought Lawrence into the conspiracy to liaise with Diez and physically organise the shipment of the cocaine onto Australian shores and thence to Sydney. The appellant was to share in the profits of the cocaine distribution with Lawrence. 22 In summary it is alleged that the appellant did the following as part of the conspiracy: · agreed with Diez that 120 kilograms of cocaine would be imported into Australia; · agreed with Diez that he (Cornwall) would organise the distribution of the cocaine upon its arrival; · introduced Diez to Lawrence the person who would physically organise the transhipment of the drugs; · agreed with Lawrence as to the price that would be charged for the imported cocaine on distribution; · engaged Mark Rowell (a boat broker) to locate a suitable boat to rendezvous with the South Americans; · provided funds for "tools" (ie the boat, trailer, vehicle to tow the boat, radios etc.) from drug distribution; · provided advice and counsel to Lawrence on how the enterprise should be performed. 23 When giving evidence at the first trial the appellant agreed that his voice appears in each of the relevant listening device tapes and that he was in discussion with Diez or Lawrence. The appellant admitted that from March 2001 he was engaged in distributing cocaine with Lawrence and that his role included the collection of the money for the distributed cocaine and payment to Diez for the supply. The appellant agreed that the conversations on the tapes concerned the distribution and importation of cocaine. He also agreed that he was in regular contact with Diez after 24 March (the date of the last recorded conversation between Diez and the appellant) but that these meetings did not occur in the appellant's flat. The appellant claimed that although he discussed the possible importation of cocaine with Diez and Lawrence these discussions were merely preliminary and tentative discussions and that eventually he never agreed to be part of an importation venture. 24 The Crown submits that although the appellant claimed that he only commenced dealing in cocaine in March 2001 ie after the listening device was inserted into his premises, it is apparent that by at least January or February 2001, the appellant was receiving cocaine from Diez for distribution. This is demonstrated by the extensive dealership network which the appellant had in place which is confirmed in the recorded conversations. 25 The listening device was not placed into the appellant's premises until 7 March 2001. On 9 March 2001, from 1.36 pm to 1.50 pm, a conversation is recorded between the appellant and Diez. During the conversation the appellant shows Diez a document which he says is an "investigation plan" or an "operation plan" that was obtained from a police officer. The appellant tells Diez that the document relates to June the year before and that it contains Lawrence's name (Cornwall refers to Lawrence by one of his nicknames, Josie). The purpose of showing Diez a document it is submitted is to impress Diez of Lawrence's importance and to vouch for Lawrence as a person who could be trusted. The appellant recommends Josie/Lawrence to Diez as "one of the best men I have ever known in my life." The appellant tells Diez that Josie "is a boss mate, he doesn't do the work … He is the boss of the work." In this conversation, the appellant was endeavouring to persuade Diez that Lawrence was a person who could be entrusted with the responsibility of organising the collection of the cocaine which was going to be imported. It was apparent that the appellant did not want to expose himself to arrest by being physically involved in the collection of the cocaine, but wanted Lawrence to perform this role. 26 On 13 March 2001 at 6.25 pm a further conversation was recorded between the appellant and Diez. Diez is waiting to receive an overseas telephone call from "the boss" concerning the shipment of cocaine. The appellant is very anxious that Diez get this call. They discuss why it has taken so long for the call to come. The appellant and Diez later discuss the method which Diez will use to contact the appellant from overseas. Diez is to ring the appellant's telephone number and having agreed the procedure, without having to answer the telephone, the appellant will know that the call is from him. The appellant is then to call Diez from a public phone. The appellant indicates that he will use a different public telephone on each occasion. The appellant informs Diez of the times he is at home each morning to ensure he will be present to receive the call. They then agree to go out and telephone Josie/Lawrence (from a public telephone). 27 There is a further conversation on 24 March 2001. In this conversation the appellant speaks with Diez and expresses concern about the problems of distributing large amounts of cocaine having regard to the present market conditions for the substance. Diez complains that the cocaine, which the appellant had received from Diez, had not been distributed quickly enough and claims that he was receiving pressure about non-payment from his South American suppliers. Diez expresses concern about what will happen when the large amount of cocaine proposed to be imported arrives. At one stage Diez is recorded as saying "I dealing with very, very, very heavy people there … my family … there … putting pressure on me." At one point Diez expresses regret that the importation is already underway saying "I wish they can turn around and go back home believe me, that's what I want now." The appellant replied saying "Well, you're talking shit, now." 28 There is a further conversation recorded on a listening device on 4 April 2001 between the appellant and Lawrence. The appellant gives Lawrence an account of his recent conversations with Diez and complains that Diez may be supplying cocaine to other distributors and under-cutting their market. They talk about the price of the boat both with and without engines, understood by the Crown to be the boat which was under consideration to carry out the drug importation enterprise. 29 There is a further conversation recorded between the appellant and Lawrence on 9 April 2001 when they discuss drug distribution. They refer to the forthcoming importation and argue about their respective roles. Lawrence complains that he is doing the running around and thereby exposing himself to arrest whilst the appellant does very little. Lawrence complains about being in the "firing line all the time". The appellant remonstrates with Lawrence that he gets upset too easily and that "if its gonna be so much pressure then and you can't cope mate you're better off fucking not doing it … ." Lawrence accuses the appellant of not pulling his weight to which the appellant responds "well I handle everything but all I'm saying is, if this job gets lost …" it will be Lawrence's fault. Lawrence is recorded as saying, "You haven't anything to handle." The appellant responds "Well that's not the point I've got all the buyers, all bar the Coogee fucking mob", and "I got the gear for us." Lawrence accuses the appellant of not being able to handle Diez to which the appellant responds, "I'm handling him, but I told you he's ready to fucking fold over this cunt, I'm telling you … he's a weak cunt. You've seen it, he's a cry baby." The appellant says to Lawrence "you don't want to talk or discuss anything and we're supposed to be fuckin partners", and "all I want from you is that you'll be able to handle this bloke" (understood as a reference to Diez). 30 The conversation later moves to the arrangements being made to handle the importation and how Lawrence is "running out of fuckin time." Lawrence says: "… I'm trying to make arrangements I've been running around all fucking morning." Lawrence refers to "this fuckin boat" and going down to Melbourne to pick it up. Lawrence talks about other things he has to organise, including the purchase of a four-wheel drive vehicle. The appellant indicates that he could handle the purchase of a vehicle, and refers to the particular vehicle. The appellant also refers to Lawrence's friend (Norris) who has a "place up the river." The appellant suggests that Lawrence can "shoot out from there and pick it (cocaine) up." Lawrence indicates that he will go and investigate the proposed arrangements. 31 A further conversation is recorded between the appellant and Lawrence on 12 April 2001. In that conversation reference is made to putting money towards the purchase of the tools and to other activities allegedly related to the conspiracy. The appellant tells Lawrence about his conversations with Diez who he says: "carries on like a big shot" and how Diez had told him that he had to go to New York the following week to "these people's boss." The appellant refers to Diez's concerns about moving the cocaine and refers jokingly to the possibility of having to "eat it." There is also discussion between them about the earnings which they can expect from the distribution of cocaine. The appellant tells Lawrence that they had averaged about $110,000 per kilo in recently times. Lawrence also informs the appellant that he purchased a Glock pistol and some ammunition. They also discuss methods of bringing the cocaine from the overseas boat and getting it on-shore. 32 A further conversation is recorded on 13 April 2001 between the appellant and Lawrence. They discuss "this big job that's coming up" and also discuss the subsequent distribution of cocaine. They speak in terms of distributing 25 kilograms at a time. They also agree a plan to secure the drugs until they have been distributed. They agree on selling the drugs at $110,000 per kilogram. 33 On 20 April 2001 the appellant and Lawrence are recorded by video camera in conversation on the balcony of the appellant's premises. The conversation is also recorded on a listening device. They discuss plans to purchase a four-wheel drive vehicle, and refer to firearms and shotguns, and having to "sit down over weekend and go over it" (understood as a reference to the plan). Lawrence says "Yeah well my end's set. I know what I am doing … ." They discuss locations from which the boat can depart, and refer to the boat going "straight out to sea." They discuss Diez going to New York. The appellant refers to "when the big one comes in" and possible methods of distribution and costs. Lawrence informs the appellant that he is going to suggest that "two blokes" go out on the boat to make the rendezvous and that each of them receive $200,000. The appellant agrees. Lawrence continues to inform the appellant of the roles he has in mind for various people, including Norris, McDougall and Brokenshire. The appellant informs Lawrence that Diez had put off the arrival of "the Dutchman" until Diez returns from New York. They also discuss a pistol, the purchase of walkie-talkies and how to pay for the boat in cash so as to ensure that it could not be traced back to them. 34 A further conversation is recorded on 11 May 2001 between the appellant and Lawrence. They are heard leaving the flat together but there are no other discussions. 35 On 24 May 2001 Lawrence collected Wouter to take him up to Telegraph Point. Before leaving Sydney, Lawrence was observed making two telephone calls from a public call box. One of the calls was to Norris' telephone at Telegraph Point the other was to the appellant. The call to the appellant was intercepted and recorded. In the call Lawrence refers to meeting up with the appellant. No effort was actually made by either of them to meet. The Crown suggests that the conversation is a pre-arranged code whereby Lawrence informed the appellant that he had picked up Wouter and he was going to Telegraph Point. 36 On 15 June 2001 a telephone call intercept on the appellant's telephone records the voices of Lawrence and the appellant. At this time Lawrence was at Telegraph Point. Lawrence telephones the appellant from a public call box and asks the appellant to ring him back as he is running out of money. The appellant says he will ring straight back: "As long as it takes me to get to a phone." No further telephone call was intercepted and on 19 June the arrests were made at Dunbogan. Notwithstanding these arrests the enterprise continued. 37 A further short conversation is recorded on the listening device at the appellant's premises at 9 July 2001 when Lawrence was present. They are heard leaving the flat but no conversation is recorded. 38 On 7 and 8 August the appellant was apparently attempting to make contact with Diez but the latter was arrested before contact was made. There was also evidence of the appellant dialling Mark Rowell's mobile telephone number from a public telephone on 8 August 2001. 39 The appellant was arrested on 9 August 2001. Amongst documents seized from him was an old address book with the name "Jim Bolus" and the latter's telephone number and a piece of paper with the names "David Norris-John Lawrence" written on it. The appellant's defence and the sequence of events at the first trial 40 The appellant submitted at his first trial that although he is recorded as having conversations with Lawrence and others in relation to drug activities these should be understood as relating exclusively to domestic drug deals and were not related to any proposed importation of cocaine in respect of which the appellant denied he was a party. Accordingly, the evidence which he gave admits to involvement in illegal drug activities but the appellant says this was confined entirely to domestic dealings. 41 The appellant was called at his first trial on 5 May 2003. He was asked some questions by his counsel to identify him and establish his relationship with relevant persons. He was asked about his knowledge of Diez and the nature of their relationship. He was then asked: Q: Alright. Some time after you re-established contact with Mr Diez, did he raise with you the possibility of involvement in some form of illegal activity? A: In February. Q: You may wish to reserve your legal rights here in answer to this question, Mr Cornwall: what did he say to you about the possibility of your involvement in some illegal activity? A: Well, I don't want to answer that on the grounds of it may incriminate me. 42 At this point counsel referred to the fact that the matter which had been previously discussed between counsel and his Honour was now squarely raised. It was indicated that unless the matter was resolved it would not be possible to proceed with Mr Cornwall's evidence. 43 There had been an earlier discussion between counsel who appeared for the appellant and his Honour in which counsel indicated that he wished to flag the issue "just to get some guidance about the procedures." Counsel said he expected Mr Cornwall to give some evidence but that he would wish to object to giving evidence about the distribution of cocaine in Sydney where it was the subject of some of these discussions that had gone into in evidence "and I would be seeking a certificate under s 128 in relation to that. At some stage your Honour will need to consider what procedures should be undertaken when we come to it." 44 His Honour indicated at that stage, but without any argument, that he thought that the appellant may be entitled to the certificate. His Honour said that it is not part of the charge for which he stands indicted. Counsel responds by saying "it is not a fact in issue as the subsection says. It is evidence that is led in order to prove a fact in issue. It is s 128(7) and (8)." Counsel makes plain that the resolution of whether or not a certificate will be available may have a bearing on the hearing. Counsel says "it might have some considerable bearing on whether or not he should give evidence. If he stands liable for prosecution for very serious criminal charges which have not been charged because of a lack of evidence at the moment … ." 45 At a later point in the transcript his Honour says "you see it is this [sic] my view if Mr Cornwall were asked questions in relation to the involvement of cocaine or other drugs, he would be entitled to take the claim of privilege." The Crown Prosecutor responds by saying: "Again, I would wait and see what the question is." His Honour says: "I understand that it depends on what the question is. It seems to me though that s 128(8) is very restrictive and much more restrictive than the common law ever was. It really is suggested that the only evidence that he cannot take or an accused cannot take the claim in is in respect of evidence concerning the act or the state of mind. All of those other matters are merely provisions of the act of mens rea." 46 Later his Honour says: "… but let's take it as it comes because, as I understand it at the present time, the only issue is in relation to, for example, conversations or suggestions that he was, at the time of those conversations, involved in the business of trafficking drugs in other words, not about his involvement in the conspiracy so much as involvement in other material which you are perfectly entitled to rely upon as showing, for example, motive or relationship and all of those things in order to prove involvement which are not themselves part of the act of conspiracy." 47 The Crown Prosecutor responds by saying: "I will wait and see what happens." 48 Following a short adjournment counsel for the appellant outlines the course he proposes to take. He says this: "Just so that your Honour understands where things are likely to proceed from here on end [sic]: I will open to the jury. I will call Mr Cornwall. In the very early stages of his evidence-in-chief I will ask him a question. He will decline to answer that on the grounds it might tend to incriminate him. Then I expect that your Honour would wish to hear either argument or perhaps further evidence in the absence of the jury before determining whether or not to issue a certificate under s 128." 49 His Honour responds by saying: "Alright. Let's proceed and see what happens. I was just going to say this: I make it clear to those who maybe interested in it and may be considering what course to take in the defence case, my present view is that it will not be open to the jury to find that there are two conspiracies." 50 The course contemplated by counsel is followed and when objection is taken the jury are excused and discussion between counsel and the judge follows. Counsel for the appellant outlines the evidence which the appellant will give. It is indicated that it will include evidence of an agreement between Diez and Lawrence as to the distribution of cocaine which was already present in Australia. Later his Honour asked counsel how "Mr Cornwall would be prejudiced in the conduct of his defence if he were not granted a certificate." Counsel explains there are two ways. Firstly, he would have to claim the privilege against self-incrimination answer by answer and that would tend to highlight an issue which is not the ultimate issue in the trial. Counsel later says: "part of the problem is that some of the conversations about these two inter-related topics are so intertwined as to make that difficult to tease out the differences between the two." 51 To this remark his Honour responds: "That is the Crown's complaint, I suppose, that in fact it is part and parcel of the same conversation. The difficulty I have unfortunately with the Crown's argument is that it is not what the section is talking about and where the Crown is relying, as it is entitled to do, on other criminal activity other than the subject charge, and an accused person should be entitled to defend himself without making himself open to be prosecuted for that material. I don't know enough about what Mr Cornwall may or may not say; is it suggested, for example, that Mr Cornwall cannot talk about his relationship with Mr Diez and what is said to be the breakdown in that relationship which led to, as I understand, directly to Mr Cornwall's failure to become involved in the conspiracy, because of the inability to talk about that offence, those offences?" 52 Counsel responds: "I think that is right, I think that's right, if his only answer to the question is an exercise of the privilege against self incrimination, a large part of the narrative which explains the extent of his dealings with Mr Diez and Mr Lawrence in relation to the instant charge will not be given in evidence." 53 Later, his Honour is recorded as saying: "I would have thought any evidence by Mr Cornwall of his arrangement with Mr Diez as to the supply of cocaine generally regardless of who it is to, is a relevant fact before the jury but it is not a fact in issue. We are passed that bar. If I grant him a certificate in relation to his involvement with Diez generally in relation to the distribution of cocaine and Lawrence in the distribution of cocaine, do you say I should grant a certificate or not in the interests of justice?" 54 The Crown Prosecutor responds to this remark by saying "We don't want to put any submissions if your Honour is of that view because we don't think it will assist. We are fundamentally of [sic] that issue so we wouldn't put any submission." 55 His Honour responds by saying: "I don't understand that. If I come to a view he is entitled to a claim of privilege, why the Crown cannot make submissions in respect of me granting a certificate so that he takes the claim of privilege without anything being said about the matter … . 56 The Crown interrupts and says: "Because interest of justice involves a large number of features and that being so, we don't wish to say anything about that particular matter, whether or not your Honour grants a certificate in relation to that particular piece of evidence." 57 At that point the transcript records his Honour as giving a judgment about the matter. In that judgment his Honour identifies the fact that an issue has arisen as to whether the appellant 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." His Honour says his understanding is that "the accused, Cornwall, 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." 58 It is plain that the issue arose because of the tender by the Crown of evidence of conversations involving the appellant and Diez and Lawrence and the appellant in which it was open for the jury to find that those persons had been involved in the distribution of narcotics. His Honour says: "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 Cornwall and Diez and Cornwall 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." 59 His Honour identified that consideration had been given to the application of s 128 of the Evidence Act. His Honour then had regard to the meaning of "fact in issue" in the trial. The submission of the Crown before Howie J was that the involvement of the appellant in the supply of drugs was a fact in issue such was its importance to the proof of the offence charged. His Honour when indicating that he did not accept the submission had regard to the fact that the expression appeared in other sections in the Act, in particular s 55 and s 94. His Honour also had regard to the relevant report of the Australian Law Reform Commission where in Report No 26 Vol 1 at para 641 note 3 it is stated that the expression "fact in issue" should be interpreted as referring to the issues in the proceedings defined by substantive law and pleadings and thus would extend to facts to be proved in undefended or ex parte proceedings." His Honour concluded that: "…a fact in issue in a criminal trial is any matter that must be ultimately determined by the jury in order to decide whether or not an accused person is guilty of the offence charged. A fact in issue in a criminal trial would generally be an element of the offence charged but might include any other matter that must be determined in order to find the accused criminally liable for that offence. It may include the issue of mental illness, self defence, or any statutory defences and, in a charge of murder, issues such as provocation and substantial mental impairment. They are examples of the fundamental issues that the jury must resolve in order to determine the charge brought by the Crown against the accused." 60 His Honour indicated that a fact in issue was not merely any fact in dispute in the proceedings. It does not include those factual disputes the resolution of which may merely assist the jury in determining whether the accused has committed the offence charged. 61 His Honour referred to s 94 and said: "This is made clear by the reference to the term in s 94. That section is as follows: '94 Application (1) This Part does not apply to evidence that relates only to the credibility of a witness. (2) This Part does not apply so far as a proceeding relates to bail or sentencing. (3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person, or (b) a tendency that a person has or had, if that character, reputation, conduct or tendency is a fact in issue.' In order to determine whether Part 3.6 applies, and whether the tendency rule and the coincidence rule have any application, it is necessary to know whether the character, reputation, conduct or tendency of a person is a fact in issue in the proceedings. Because it is necessary for the party wishing to tender evidence falling within the tendency or coincidence rules to give reasonable notice of its intention to do so, there must be some understanding of what will be a fact in issue in advance of the proceedings. The question whether the Part applies and, therefore, the rules operate to exclude otherwise relevant evidence cannot depend upon the manner in which the proceedings are conducted by the parties. The character, reputation, conduct, or tendency of a person is a fact in issue only where any of those matters have to be determined in order to resolve the proceedings before the court. This is consistent with the view adopted by the Australian Law Reform Commission, see Report No 26 vol 1 paragraph 786. Odgers cites examples of proceedings where such a matter might be a fact in issue, see at [1.3.6480]. I believe that this view is supported in the judgment of the High Court in Smith v The Queen (2001) 206 CLR 650. The Court was there concerned with the relevance of evidence given by police officers purporting to identify the accused in security photos taken during an armed robbery. In the course of their joint judgment, their Honours Gleeson CJ, Gaudron, Gummow and Hayne JJ stated (footnotes not included): [7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. It seems to me that the reference to the 'ultimate issues' is a reference to the facts in issue for the purposes of the Evidence Act . Earlier their Honours noted that the Crown case was that the appellant was the person who was shown in the security photographs, apparently keeping lookout while the co-offenders took the money. The joint judgment then states: [4] It was, therefore, a fact in issue on the trial of the appellant whether the appellant, the person standing trial, is the person depicted at the right-hand side of some of the security photographs. As it was an element of the offence charged that the accused was a participant in the robbery (that is, that it was his act), and as the Crown sought to prove that element by identifying the accused as the person in the photograph, it is understandable that the Court should refer to the issue of identification as a fact in issue. Clearly this is an example of those cases where it would be appropriate to refer to a particular disputed factual matter as a fact in issue because the resolution of that fact will itself resolve a fact in issue. In other words, the particular factual dispute is synonymous with the relevant fact in issue." 62 Consistent with this approach to the question of a fact in issue his Honour determined that whether the appellant or any of the alleged conspirators were involved at the time of the alleged importation in the domestic trafficking of narcotic goods was not a fact in issue in the trial. It was not "an ultimate fact for the jury to resolve in order to find the charge of importation proved." It followed that s 128(8) had no application to the proposed evidence in the present case. Accordingly, Howie J held that the appellant was entitled to refuse to answer a question "on the ground that the answer may incriminate him in relation to his involvement in the ongoing distribution of narcotic goods at or about the time of the alleged conspiracy. In particular, he is entitled to refuse to answer questions as to his relationship with other accused, in this case Diez and Lawrence, with regard to the distribution of drugs that were at the time in his possession or in the possession of some person associated with him." 63 His Honour then turns to consider the practical application of this conclusion in the appellant's trial. Concluding that the Crown sought to put the evidence of drug supply before the jury in support of the charge of importation his Honour determined that the appellant should be able to put forward his defence to that charge without putting himself at risk of being prosecuted for other serious criminal activity. 64 His Honour then addresses the question of whether or not the appellant should be given a certificate under s 128. It must be remembered that a certificate can be provided either pursuant to s 128(3) or s 128(6). A certificate may be given under s 128(3) in circumstances where a witness has been advised that he or she need not give the evidence the subject of the relevant objection but nevertheless chooses to do so. In these circumstances subs (3) requires the court to issue a certificate. No question as to whether or not the evidence should be given in the interests of justice is raised. 65 The position is different in relation to subs (6). A certificate under that subs must be given in circumstances where the court has required a witness to answer the question. Before the court may require the witness to answer, the judge must be satisfied, inter alia, that the interests of justice require that the witness give the relevant evidence. 66 Howie J does not identify whether or not the appellant would be entitled to a certificate under subs (3) or subs(6). Without consideration of the matters arising in s 128(2) his Honour turns attention to whether or not the appellant should be required to answer the relevant questions and whether or not this would be in the interests of justice. His Honour then proceeds to balance what he refers to as competing interests and the need for a fair trial of the appellant and other accused. His Honour remarks that the Crown provided no assistance in the resolution of this problem. This was apparently because the Crown had taken a view that it was wrong to permit the appellant to rely upon the privilege and the Crown did not wish to assist the court further in relation to the matter. His Honour concludes by saying: "In those circumstances, it is my present opinion that, if Cornwall refuses to answer questions about his involvement in the ongoing supply of drugs on the grounds that it might incriminate him, he is entitled to take that stance, but in the interests of justice I would require him to answer the questions and grant him a certificate in accordance with the section." 67 In these circumstances it would appear that his Honour had concluded that the appellant was entitled to a certificate pursuant to subs (6) his Honour having required him to answer the relevant questions. 68 Following delivery of his Honour's judgment counsel for the appellant raised the question of how the decision was to be given practical application. Counsel is recorded as saying: "Well your Honour, given the fact that the accused has claimed the privilege against self incrimination already, and given that I have outlined as much as I have about what it is he is about to say in evidence if granted a certificate, would your Honour grant him a certificate now?" 69 His Honour replies: "Yes, I grant him a certificate in relation to evidence that he will give in answer to any question concerning an involvement between himself and Diez and Lawrence and any other person in the supply or trafficking in narcotic goods between what dates?" 70 It is then agreed that the certificate should issue in respect of the period between 1 January 2001 and 10 August 2001. 71 The jury returned to the court and his Honour informed them of the fact that the appellant has been granted the relevant certificate. His Honour says that rather than the appellant having to take the objection every time somebody asks a question relating to his relationship with Mr Diez or any person in the distribution of prohibited drugs or narcotics which were present in Australia a certificate would be issued giving him the relevant immunity. 72 The appellant then proceeded to give evidence in chief and was cross-examined in relation, inter alia, to the matters the subject of the certificate. The issue of the Certificate 73 As it happens a certificate was not physically issued in the course of the trial. That fact was only discovered after the second trial had commenced and the question was raised as to the admissibility of the transcript of the appellant's evidence at his first trial. When the question was raised, arrangements were made for the parties to again approach Howie J where argument ensued as to whether a certificate could now be issued. His Honour resolved that argument in favour of the appellant and granted a certificate in the following terms: "This Court certifies under section 128 of the Evidence Act 1995 of New South Wales that evidence in these proceedings by Richard Bruce Cornwall on 5 May 2003, 6 May 2003, 7 May 2003, 8 May 2003, 9 May 2003 and 12 May 2003 in relation to Richard Bruce Cornwall's involvement with Juan Guillermo Diez-Orozco, John Lawrence and other person in the supply or trafficking in narcotic goods between the 1st January and 10th August 2001 is evidence to which section 128(7) of that Act applies." 74 Notwithstanding the fact that Howie J had made plain in the course of the trial that he would grant the appellant a certificate, and the fact that it had not actually been formally granted was an oversight, the Crown objected to his Honour granting a certificate at the later point in time. His Honour records the fact that the Crown contended that no certificate should issue given the delay in seeking it and the use to be made of it in the trial before Blackmore DCJ. It is difficult to understand this submission. His Honour had made plain that a certificate would be issued and evidence had been given upon that assumption. Delay in issuing the formal document could hardly be relevant to whether or not the protection afforded by s 128 should be available. Whether or not the certificate which his Honour had indicated he would issue provided the relevant protection was not a matter to be raised with Howie J, but, rather, for the trial judge in any proceedings where the evidence was proposed to be tendered. 75 In his judgment in relation to the issue of the certificate Howie J considers the position which had been reached in the trial before Blackmore DCJ. It is apparent that Blackmore DCJ had determined that the trial before him was a different proceedings to that which had taken place before Howie J. Acknowledging this conclusion Howie J professes the view that it "was not my intention, nor was it ever suggested during the course of argument, that the certificate could be used by the accused to protect himself from the use of his evidence in the proceedings of the charge in respect of which the evidence was given. This may be the result of the fact that no-one turned his or her mind to the possibility of another trial of the charge then being prosecuted. Had that possibility been raised I would have taken it into account in determining whether to require the applicant to answer the question on the basis that he would be protected from the further use of that evidence in any proceeding." 76 His Honour expressed difficulty in justifying as a matter of policy a decision which would permit an accused to give evidence in a trial on the basis that some or all of it could not be used against him in any subsequent proceedings for the same offence. 77 Notwithstanding the use which was proposed to be made of the certificate his Honour concluded that he is functus in relation to the trial and accordingly evidentiary rulings cannot now be revisited. His Honour says: "I cannot see how I could refuse to give a certificate to an accused by reason of events that have occurred after the accused was told that he must answer the questions asked but that a certificate would be issued in respect of those answers. Where a witness, including an accused, has been required to answer a question notwithstanding that a valid objection has been taken on the grounds of privilege against self incrimination, the witness is entitled to have the certificate given to him. Section 128 is mandatory in that if the witness gives evidence under s 128(2) or is required to give evidence under s 128(5) the court 'is to cause the witness to be given a certificate under the section in respect of the evidence.' The issuing of the certificate is a purely administrative step and the court has no discretion in respect of the matter." 78 His Honour offered some further comments in relation to the operation of the section. His Honour concluded that if the effect of granting of the certificate in the trial which he conducted is to deprive the Crown of part of the evidence given by the appellant in that trial at a further hearing of the charge in respect of which the evidence was given, then his Honour suggests that either the meaning attributed to the word "proceeding" in s 128(7) would preclude that outcome or the section should be amended. The Australian Law Reform Commission has now taken that matter up in Report 102, Uniform Evidence Law, [15-106]-[15-107] and Recommendation 15-7. The trial before Blackmore DCJ 79 As I have already indicated Blackmore DCJ first determined that the retrial was a "proceeding" for the purpose of s 128(7). 80 In part his Honour took this view because of the approach which he took to s 128(8). His Honour said: "By reason of the operation of this section, the Crown is not reduced to the situation where it is unable to tender the evidence given by the accused in the former proceedings before Howie J. It can tender such evidence provided that it is evidence intended to prove the matters outlined in subs (8)(a) or (b)." 81 In my opinion this approach to the problem does not accord with the section. Section 128 operates so that a certificate can only be issued by a judge in relation to evidence which falls outside s 128(8). That judgment is required to be made by the trial judge before the decision to issue the certificate is made and the relevant evidence is given. However, once the certificate has issued it will operate in accordance with its terms with the consequence that evidence falling within the certificate cannot "be used against the person" who has the benefit of the certificate. 82 Blackmore DCJ firstly indicated that he accepted Howie J's reasoning to the effect that "a fact in issue in a criminal trial is a matter that is necessary for the Crown to prove beyond reasonable doubt in order to convict an accused." His Honour indicates that he also agrees with Howie J that "it was not necessary for the Crown to establish that Cornwall was involved in the supply of drugs." His Honour then continues saying: "But that is hardly the end of the issue. Had the evidence been tendered for that purpose, namely to prove beyond reasonable doubt that the accused supplied drugs, it is unlikely that it would have been admitted at all. It was not necessary to prove that. What was necessary to prove was the element of the charge." 83 His Honour then refers to the fact that the charge was one of conspiracy in which the element to be established is an agreement to carry out the illegal purpose involved. Because the illegal purpose in the case was the importation of a prohibited import his Honour concluded: "evidence that directly or indirectly established the existence of that agreement was evidence with respect to a fact in issue at the trial." His Honour concluded that it would be open to the jury to find that the appellant was involved with the other alleged conspirators in the supply of drugs which would enable the jury to more easily conclude that the appellant was involved in an agreement to carry out the illegal purpose. His Honour determined that the jury could be satisfied on the balance of probabilities "as a piece of circumstantial evidence" that the appellant was involved with the others in the supply of drugs. If this was their conclusion his Honour found that the jury could reason that "given the nature of the relationship, the fact of actual association and their involvement with drugs, that the accused Cornwall would have entered into an agreement with Lawrence and others to carry out the illegal purpose." 84 By this reasoning his Honour concluded that the conversations which had been recorded in which the appellant spoke about the supply of drugs with Lawrence and Diez was "evidence that went to a fact in issue in the trial, namely evidence that went to establish his involvement in the agreement between those alleged conspirators." 85 Blackmore DCJ finally adverts to a difficulty which arose by reason of the way in which the matter was approached before Howie J. As I have already indicated Howie J was asked to consider whether or not a certificate should be issued after he had been made aware in a general sense of the evidence which the appellant proposed to give. The matter was not given consideration in light of an individual question to which objection was taken and a ruling made. In part this has given rise to the practical difficulties in this case. Although I doubt whether Howie J could have taken any other course the preferred course, where it is practical to do so, may be to make a ruling and issue a certificate which is expressed in relation to particular questions and answers. 86 Blackmore DCJ concludes his reasons in relation to the admission of the evidence by stating that he would admit it although the evidence was "technically being used against the accused." Because his Honour was of the opinion that the appellant was not entitled to claim privilege in the first place he determined that the evidence should now be admitted. Resolution of Ground One 87 The circumstances of the present case are unusual and I doubt whether they were foreseen by the draftsman of s 128. The more conventional circumstances where a witness, other than the accused, gives evidence but is protected from that evidence being tendered against him or her in the other proceedings is readily accommodated. However, I doubt whether the possibility of an accused giving evidence at his or her trial, issued a certificate, and later seeking to exclude his or her evidence at the first trial from being tendered at the retrial, relying upon the certificate, was contemplated. Furthermore, at a time when the argument first occurred before Howie J the possibility of a retrial was not in contemplation. 88 Whatever may have been the problems which the draftsman of s 128 had in mind, as I have already indicated, I am satisfied that the certificatae issued by Howie J operates to protect evidence given by the appellant at his first trial which is within the terms of the certificate. Although it was submitted by the Crown that this would be unfair to the prosecution it is not immediately obvious to me that this is so particularly when a trial is conducted under the adversarial system. The appellant gave evidence at his first trial after an evaluation was made of the Crown case against him. At the retrial the Crown is not confined to the evidence tendered at the first trial and any forensic decision in the prosecution case. If the prosecution is not confined it may be thought unfair if the accused was bound by the forensic decisions made at the first trial rendering him liable to have the evidence which he gave at the trial, which would otherwise be protected by a certificate, admitted into evidence. 89 Two issues were decided by Blackmore DCJ. Firstly his Honour found that "any proceeding" in s 128(7) extended to the retrial of the appellant. In my opinion his Honour's conclusion on this matter was correct. The retrial proceeded upon a fresh indictment to the first trial, the co-accused named in the indictment being different to the co-accused at the first trial. The second trial was heard in the District Court whereas the first trial was held in the Supreme Court. 90 Apart from these matters the limitation on the use of the relevant evidence is expressed in very wide terms. The expression any proceeding "in a New South Wales court" would, unless otherwise qualified, extend to a proceeding by way of retrial with the possible exception of a retrial on the same indictment before the same court. 91 The second issue decided by Blackmore DCJ was the effective operation of the certificate. His Honour considered that question by determining the matters which in his Honour's opinion could be protected by s 128(8). In doing so he did not consider the terms of the certificate itself except, in effect, to rule that the certificate had been issued contrary to the section. To my mind this was an error. 92 Section 128(8) provides that the section does not apply in relation to evidence falling within subs (a) or (b). Howie J considered that issue before determining to grant the certificate. I have previously referred to his Honour's reasons. 93 At no time during the first trial was an application made to this Court seeking to challenge his Honour's decision to grant a certificate or the terms of that certificate. The evidence was given with the knowledge that a certificate had been granted. In these circumstances Blackmore DCJ was required to determine the admissibility of the appellant's evidence having regard to the terms of the certificate. 94 Approached in this manner very significant portions of the transcript have been tendered at the second trial contrary to the certificate. Containing as it did admissions that the appellant was engaged in domestic drug trafficking on a significant scale it could have significantly influenced the jury's approach to the guilt or innocence of the appellant in respect of the matter charged. The Crown tendered the evidence "to use" it against the appellant at the retrial and in my opinion it was admitted contrary to s 128(7). The Crown Appeal 95 After the certificate had been formerly issued by Howie J the Crown brought an appeal pursuant to s 5F(2) of the Criminal Appeal Act ….. That subs provides: "(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies." 96 The appeal was originally listed before this Court without the appellant's appeal. The Court determined that the Crown appeal should not be determined without consideration of the other matters and it was adjourned. 97 There are significant issues both as to whether a decision to issue a certificate is amenable to appeal and with respect to the relief, if any, which may be available when a certificate under s 128 has issued. Apprised of these difficulties the Crown sought to argue in this appeal that the relief which was sought was an order quashing the certificate. However, the proceedings have not been reconstituted and whether such an order could be made pursuant to s 5F(5) may be doubted. 98 The Parliament has provided s 5F so that questions with respect to rulings and orders during the course of a trial may be determined by this Court and orders made which ensure that the trial proceeds in accordance with interlocutory rulings made according to law. It is for this reason that the right of appeal is defined as an appeal against an interlocutory order. Once the trial has been concluded, although a question of law may be submitted to this Court for determination (s 5A), which may include questions arising in relation to interlocutory judgments or orders, this is confined to the circumstances where there has been an acquittal. 99 The position is made plain by the terms of subs (5) which indicates the relief which this Court may grant. As would be expected this Court may affirm or vacate the interlocutory order previously made or may make some other interlocutory order. There could be no purpose in granting such relief to the Crown when a trial has been concluded. 100 With respect to the suggestion that this Court might intervene to quash the certificate, it being submitted that the legal foundation for its issue did not exist, even if such relief was possible there are overwhelming discretionary reasons why I would decline to grant it. The appellant only gave evidence after Howie J had determined that a certificate would be granted. If that certificate could now be quashed, not only could the evidence be tendered at a retrial of the original charge but also would be available to the Crown to tender against him at a separate trial on the "domestic" charges. This could result in significant injustice. 101 In my opinion the Crown appeal should be dismissed. Grounds Four and Five 102 The prosecution case against the appellant was almost entirely dependant on the evidence provided by the recorded conversations. There were eight conversations of relevance to the case against the appellant recorded at the premises at Brougham Street, Woolloomoolloo between February and 20 April 2001. 103 The appellant's case had two components. Firstly, it was argued that, there being no evidence of his involvement in any arrangement after 20 April, since no conversations were recorded after this, it cannot be concluded that the appellant was involved in the conspiracy in respect of which he was charged. His case was that although there may have been preliminary discussions about the importation of drugs, the appellant had a falling out with Diez, evidenced by heated exchanges between them about payments for domestic drug deals before any agreement to carry out the relevant importation was concluded. 104 Secondly, the case put by the appellant was that there was another importation in contemplation, referred to as a "second" or "parallel" importation which did not involve the appellant. Complaint is made that Blackmore DCJ did not refer to this suggested parallel importation in his remarks to the jury and expressly declined to give any directions in respect of it. 105 In relation to the second matter, there is evidence which could suggest that Diez was involved in deals apart from that particularised in relation to the appellant. The appellant points to unexplained references in the evidence of Diez going to New York and of his owing monetary obligations to persons already in Australia. The submission is that, as the alleged conspiracy involved drugs being exported from Columbia, the principals were unlikely to be in Australia. It is also suggested that there is conversation consistent with a "parallel importation" coming through the islands of Fiji and arriving in Australia before the Flaning. 106 Blackmore DCJ expressly declined to ask the jury to consider the suggested "parallel" importation. My present view is that his Honour was probably correct to do so. The evidence upon which the suggestion was founded was to my mind of minimal weight. However, having regard to the view I have expressed in relation to ground one it is unnecessary to resolve this issue and as a new trial is required the better course is to allow that matter, if it arises, to be determined again at that trial. 107 In relation to the first matter, which is captured in Ground five of the appeal there is evidence of a heated exchange between Diez and the appellant on 24 March in relation to the sale of drugs which were already in Australia. However, it does not follow that the jury could not be satisfied that the relevant agreement had not already been made. Furthermore, even if there was a disagreement about domestic matters it would not follow that the appellant did not maintain his role in the importation from Colombia. The lack of later listening device material may reflect even greater care to avoid detection than that which was previously in place. To my mind these were matters for the jury and it could not be said that there was no evidence to support the conviction. The proviso 108 In Weiss v The Queen [2005] HCA 81 the High Court again considered the proviso (s 61 of the Criminal Appeal Act). The occasion for its consideration was the conclusion of the Court of Appeal in Victoria that a distinction should be drawn between an appellate court asking whether without the relevant error (in that case the wrongful admission of evidence) the jury at the appellant's trial ("this jury") would have convicted him and asking whether, without that evidence any reasonable jury, properly instructed, would inevitably have convicted him. The Victorian court concluded that the relevant test was the "this jury" test. 109 Consideration was given in the joint judgment of the High Court to the history of the proviso. Acknowledging that the statutory enactment was a rejection of the former Exchequer rule (where any and every departure from trial according to law required a new trial) the Court sought to identify the approach which should be taken by appellate courts when the proviso requires consideration. 110 The Court identified a number of relevant principles of which the following may be a useful summary: · The appellate court must decide whether a substantial miscarriage of justice has actually occurred; [42] · The task of the appellate court is an objective task and is to be carried out by consideration of the record of the trial; [42] · the appellant court must make its own independent assessment of the evidence having regard to the whole of the record of the trial including the fact that the jury returned a guilty verdict; [43] · it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty; [44] · there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded as to the requisite degree of the appellant's guilt; [45] 111 In the present case it may be accepted that the appellant gave evidence at his first trial in an endeavour to explain the various conversations to which he was party as being conversations unrelated to the offence with which he was charged. Accordingly, it could be suggested that as the purpose of the evidence was merely exculpatory its admission at his second trial brought no disadvantage. In these circumstances, the Crown submits that as the evidence against the appellant is otherwise strong, the proviso should be applied. 112 The evidence which was admitted contrary to the certificate contained admissions of serious criminal activity relating to the sale and distribution of illegal drugs. It must have reflected unfavourably on the accused. Whether or not it was prudent of the appellant to give that evidence at his first trial, that jury, having had the chance to observe the appellant when he gave the evidence, were unable to convict him of the offence charged. The tender of the transcript of his evidence from the first trial at the second trial must have had significant impact on the attitude of the jury to the appellant who heard the evidence, knowing it had been given under oath in other proceedings, although they were not told the occasion on which it was given. The exculpatory benefit, if any, for which the evidence was given at the first trial may have been diminished by the fact that the jury at the second trial did not see the appellant give evidence and were accordingly denied an opportunity of assessing the weight to be given to it having regard to his demeanour. 113 I am satisfied that the approach taken by Blackmore DCJ caused the trial to miscarry. The appellant gave evidence at the first trial with the knowledge that his evidence would be protected by an appropriate certificate. However, the approach taken by Blackmore DCJ to the application of s 128 made it impossible for the appellant to give oral evidence at his second trial. His Honour would not have granted a certificate rendering his prosecution on the domestic charges possible, and if prosecuted, conviction almost certain. 114 Just as the High Court in Weiss at [43] said the conviction of the appellant was relevant when considering whether to apply the proviso the fact that the jury could not return a verdict at the first trial cannot be entirely ignored. The jury had a greater opportunity to assess the appellant's credit at his first trial, which, although they had a transcript of the evidence, was denied to the jury at the second trial. 115 In these circumstances, although I am of the opinion that the Crown case was strong I would not apply the proviso. In my opinion the appeal should be upheld and a new trial ordered. 116 HULME J: I agree with McClellan CJ at CL. 117 ADAMS J: I agree with McClellan CJ at CL. 118 Accordingly, the orders of the Court are: 1. The appeal of the appellant is upheld and a new trial ordered. 2. The Crown appeal is dismissed. ********** 01/05/2006 - Cornwell spelt with an "a" instead of an "e" - Paragraph(s) none DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.