Cornwell v The Queen

CITATION: Inquest into the death of Josephine Nellie Florence SPAIN [2010] NSWLC 14

Cornwell v The Queen (2007) 231 CLR 260 CASES CITED: Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchcliffe & Anor [2009] NSWSC 354 Ollis v Melissari [2005] NSWSC 1016 Ying v Song [2009] NSWSC 1344

11. Dealing with the words and the concepts of "object" and "objection" in deciding a similar issue relating to the issue of a Certificate pursuant to s. 128 of the Evidence Act 1995 Ward J. said in Ying -v- Song [2009] NSWSC 1344 at [45]-[47]: The critical factor seems to me to be that in order to invoke the privilege at common law the objector must, absent the privilege, be under some requirement to give the particular evidence to which objection can be raised. I note, in this regard, that in R v Bikic [2001] NSWCCA 537 at [14]-[15], Giles JA, with whom Sully and Levin JJ agreed, in determining whether there were reasonable grounds for an objection for the purposes s 128(2), had reference to the test arising from the common law cases, namely whether "there are reasonable grounds to apprehend danger to the witness from his being compelled to answer", and expressed the view that "the same concept underlies the words in s 128(2)".

13. Mr. McEvoy in his written submissions (at paragraph 7) relies upon the decision of Campbell in Ollis -v- Melissari [2005] NSWSC 1016 to ground the submission that the word "object" as it appears in section 128 of the Evidence Act 1995, and s. 61 of the Coroners Act 2009 should be given a broad meaning. His Honour said at [5] of that decision: "…In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics".

18. Given that section 61 of the Coroners Act 2009 closely mirrors s. 128 of the Evidence Act, 1995, I have had recourse to the latter, and the body of law that has developed in relation to that section in an effort to obtain guidance on this matter. Gleeson CJ, Gummow, Heydon and Crennan JJ in Cornwell -v- The Queen (2007) 231 CLR 260, 169 A Crim R 89, [2007] HCA 12 said at [91]:

The purpose of s 128 of the Evidence Act may be gleaned from the tenor of the words used within it. Throughout, references are to the giving of future evidence, to which a certificate shall attach: "to giving particular evidence" in s 128(1); "the court is not to require the witness to give that particular evidence" in s 128(2); "If the witness gives the evidence" in s 128(3); "The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection" in s 128(4); "... the court may require the witness to give the evidence" in s 128(5). Section 128 does not contemplate that a certificate might issue in respect of evidence already given save where the evidence is given over an objection by the witness to giving evidence. 184 The terms of s 128 clearly contemplate that a certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken. 185 To the extent that a certificate can be issued after the giving of evidence, this may occur where the court has ruled but not granted a certificate: Cornwell v R [2006] NSWCCA 116 at [87] - [94]. The certificate in that proceeding concerned answers concerning specific matters, in cross-examination. 186 A retroactive application of s 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of the section, which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given, it cannot be said that the witness has been compelled.

(2007) 231 CLR 260

(1982) 153 CLR 134

(1985) 2 NSWLR 740

[2001] NSWCCA 537