R v Cornwell

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (on Application that Cornwell be given a Certificate under s 128 of the Evidence Act) 1 HIS HONOUR: On 5 May 2003 the applicant, Richard Bruce Cornwell, was standing trial before a jury over which I was the presiding judge. He was charged with a conspiracy to import a commercial quantity of cocaine. There were a number of co-accused standing trial at the same time, two of whom were Juan Guillermo Diez-Orozco (known as Diez) and John Lawrence. 2 In the course of those proceedings I was asked to make rulings prior to the applicant giving evidence in his own defence. It is unnecessary to detail the issues that then arose for determination. They are contained in a judgment given by me on that date when I determined that the applicant was both entitled to object to giving evidence on a particular topic on the grounds that his answers might incriminate him and that, if he did object, I would require him to give evidence and issue a certificate under s 128 of the Evidence Act, see R v Cornwell [2003] NSWSC 660. 3 The trial resulted in the jury being unable to agree upon a verdict in respect of the applicant and a number of other accused. The re-trial of the charge that was before me has recommenced before Judge Blackmore in the District Court. 4 Notwithstanding that I required that the legal representatives for the applicant present a draft of the certificate within three weeks of my decision, nothing was received by the Court until 6 February last. On that date the solicitors for the applicant wrote to my associate asking for guidance as to the procedure for obtaining a certificate. Later that day the Court was informed that a dispute had arisen as to the terms of the certificate and the parties sought to have the matter listed before me before any certificate was issued by the Court. 5 The matter was listed yesterday, 10 February. Mr Roberts SC appeared for the Crown and Mr Boulten SC represented the applicant. In the meantime a draft certificate in accordance with Form 1 as prescribed under the Evidence Act had been sent to the Court together with a large number of pages of trial transcript that were to be annexed to the certificate. 6 Initially the dispute seemed to be about the width of the material to be annexed to the certificate and the terms in which the certificate should be drawn. But it soon became apparent that the controversy was more fundamental and that the Crown was contending that no certificate should issue given the delay in seeking it and the use to be made of it in the trial before Judge Blackmore. 7 As I understand the situation, the applicant stands indicted before Judge Blackmore on the very same charge as was before me. Notwithstanding that the proceedings before this Court did not result in any final determination, so far as the applicant was concerned, Judge Blackmore has ruled that for the purposes of s 128(7) of the Evidence Act the trial before him is a different proceeding than that which was before me. I do not have the benefit of his Honour's reasons for coming to that view and its correctness or otherwise is not for me to judge. The consequence of that determination, however, is that apparently his Honour has formed the view that the certificate issued by this Court would apply to the proceeding before him and the Crown would be prevented from tendering the evidence given by the applicant in the trial before me where that evidence fell within the ambit of the certificate. 8 The Crown has submitted that the effect of the certificate as foreshadowed by Judge Blackmore would deprive the Crown of important evidence and was not what was envisaged at the time the decision was made to grant the certificate. The Crown submits that the protection sought by the applicant and guaranteed by the issuing of a certificate was against the use of evidence in any proceeding for an offence other than that in respect of which the accused was giving evidence and raising the objection to answering questions. The objection was that the evidence may tend to incriminate him of an offence other than the offence charged in the indictment. An accused person cannot refuse to answer a question simply on the basis that it may tend to incriminate him of the offence charged. 9 It is clear from the reasons for judgment and the transcript of proceedings that the purpose of issuing the certificate was to protect the applicant from prosecution for other offences not charged before the Court. The interests of justice required that the applicant be allowed to give evidence explaining his relationship with Diez and Lawrence unhindered by concern that he may thereby provide evidence implicating him in other serious criminal activity in which he was engaged at the time. As the Crown had sought to lead evidence of uncharged criminal activity as part of its case in proving the offence charged, it seemed to me that the applicant was entitled to defend himself free of running the risk of his evidence being used against him in subsequent proceedings for criminal activity for which he was not then being tried. 10 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 a proceeding for the charge in respect of which the evidence was given. This may be a 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. 11 However, I find it difficult to see any justifiable policy 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 proceeding for the same offence. There are many situations in which a retrial can occur other than because of a jury disagreement. It is, to my mind at least and generally speaking, an affront to the administration of criminal justice that the evidence given by an accused at a trial of a serious criminal offence could not be used by the Crown at a subsequent trial of the same offence either as evidence in the Crown case or by way of cross-examination of the accused if he or she gave evidence on that occasion. Yet that would be the result of the issuing of the certificate issued by me if the further trial is caught by s 128(7). I do not believe that could have been the intention of the Law Reform Commission or the legislature in giving effect to the Commission's recommendations. 12 However, I am functus so far as the trial of the applicant is concerned and any orders made by me, of an evidentiary nature or otherwise, cannot now be revisited. 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 the 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. The failure of the witness's representative to file a draft certificate cannot relieve the court of the obligation imposed upon it by the section. 13 At one stage I considered whether I could refuse to cause the certificate to be given to the applicant until the proceedings in the District Court were concluded. But I do not believe that I can properly take that course. Had the applicant sought to have the certificate issued last year he would have received it. Had he sought its issue at the beginning of this year, I would have had no basis for refusing the application. I cannot refuse to cause him to be given a certificate to give effect to the judgment I made during the course of the trial, simply because I did not intend or foresee that the consequence of granting the certificate would be to deprive the Crown of otherwise admissible evidence in a re-trial. 14 It seems to me that events subsequent to my decision to apply s 128 to the evidence of the applicant are irrelevant to the course I should now take to give effect to the ruling I made during the course of the trial. The applicant is entitled to a certificate and there is no basis upon which I can refuse to cause it to be given to him. 15 The only other matter that has exercised my mind is whether the certificate could in some way be restricted to its intended purpose; that is to operate on proceedings for an offence other than that in respect of which the evidence was given and the certificate issued. However, I do not believe that I can cause a certificate to be given to the applicant other than in accordance with the section. The scope of the application of the certificate, and in particular whether it operates in respect of any particular proceeding or in respect of any particular piece of evidence, is not a matter for me to determine either directly or indirectly by imposing conditions or restrictions upon the operation of the certificate. 16 Section 128(7) states:

(7) In any proceeding in a NSW court: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. 17 The section contains no restriction on the operation of the certificate to any proceeding other than that which would arise by natural implication: the proceeding referred to must be some other proceeding than that in which the certificate was granted. I do not believe that I am entitled to limit the operation of the section by imposing some restriction on the scope of the certificate simply because its effect may reach beyond that which I foresaw or which I intended. It is not for me to determine what the meaning of the word "proceeding" should be or whether a particular proceeding comes within the scope of the section or not. 18 If the effect of the granting of the certificate in the trial before me is to deprive the Crown of part of the evidence given by the applicant in that trial at a further hearing of the charge in respect of which the evidence was given, then I would respectfully suggest that either the meaning attributed to the word "proceeding" in s 128(7) by Judge Blackmore is erroneous or the section needs to be amended. 19 For these reasons I intend to cause a certificate to be given to the applicant. I indicated at the time of requiring the applicant to answer the questions to which objection was taken by him that the certificate would relate to evidence given by him in answer to any question concerning the involvement of himself with Diez, Lawrence or any other person in the supply or trafficking in narcotic goods between 1 January 2001 and 10 August 2001. I believe that is a sufficiently clear indication of the evidence to which I intended the certificate to relate. If there is any dispute as to whether a particular part of his evidence falls into that description, it is a matter for the trial judge to determine. **********

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