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Supreme Court 11 February 2004

R v Cornwell

[2004] NSWSC 45

Drugs
CRIMINAL LAW AND PROCEDURE

Citation: R v Cornwell [2004] NSWSC 45
Court: Supreme Court of New South Wales
Date: 11 February 2004
Judge(s): Howie J

Background

The accused had stood trial in the Supreme Court on a charge of conspiracy to import a commercial quantity of cocaine. During that trial, Howie J ruled that the accused was entitled to object to giving certain evidence on self-incrimination grounds, and that if he did object and was required to answer, a certificate under s 128 of the Evidence Act 1995 would be issued. The jury failed to reach a verdict and the matter proceeded to a retrial in the District Court before Judge Blackmore.

Almost nine months passed before the accused's solicitors sought guidance on obtaining the certificate. By then, Judge Blackmore had ruled that the District Court retrial constituted a "different proceeding" for the purposes of s 128(7), meaning the certificate would prevent the Crown from using the accused's earlier evidence against him at the retrial of the same charge.

The Crown opposed the issuing of the certificate, arguing the delay, and the unforeseen effect of protecting the accused at his own retrial, justified refusal or deferral. A dispute also arose about whether the certificate could be drawn in restricted terms to limit its operation.

  • Whether the court could refuse to issue a s 128 certificate in light of the delay in seeking it and the unintended consequences of its operation.
  • Whether the court could defer issuing the certificate until the District Court proceedings concluded.
  • Whether the court could limit the terms of the certificate to restrict its operation in particular proceedings or to particular pieces of evidence.

Decision

Howie J held that the issuing of a s 128 certificate is a mandatory, administrative step and not a discretionary one. Once a witness has been required to give evidence after validly objecting on self-incrimination grounds, the court "is to cause the witness to be given a certificate." That statutory obligation is not displaced by subsequent events, including delay by the witness's representatives in filing a draft certificate.

His Honour also concluded that deferring the certificate until the District Court proceedings concluded was not a proper course. The accused had answered questions on the basis that a certificate would follow, and withholding it in response to subsequent developments was not open to the court.

On the question of limiting the certificate's terms, Howie J found that the scope of s 128(7) and the meaning of "proceeding" within it were matters for the court in which the certificate is sought to be relied upon, not for the issuing court. Imposing restrictions designed to cut down the statutory operation of the certificate was beyond the issuing court's proper function.

His Honour expressed clear misgivings about the outcome, observing that it would be an affront to criminal justice administration if evidence given at a serious criminal trial could not be used at a retrial of the same charge. He noted that either Judge Blackmore's interpretation of "proceeding" in s 128(7) was erroneous, or the section required legislative amendment. Those observations were plainly not binding determinations.

Orders Made

  • Certificate under s 128 of the Evidence Act 1995 to issue in favour of the accused, covering evidence given by him concerning his involvement with Diez, Lawrence, or any other person in the supply or trafficking of narcotic goods between 1 January 2001 and 10 August 2001.

Key Takeaways

  • Under s 128 of the Evidence Act 1995, once a witness has been required to give evidence following a valid self-incrimination objection, the issuing of a certificate is mandatory. The court has no discretion to refuse.
  • Delay by a witness's legal representatives in seeking a draft certificate does not extinguish or suspend the court's statutory obligation to cause the certificate to be given.
  • The issuing court cannot limit or qualify the operation of a s 128 certificate to prevent its application to particular proceedings. Questions about whether a specific proceeding falls within s 128(7) fall to be determined by the court in which the certificate is relied upon.
  • Howie J observed, without deciding, that using a s 128 certificate to shield an accused's evidence from use at a retrial of the same charge would be inconsistent with the evident purposes of the provision, and may warrant legislative attention.
  • Where the scope of a certificate is in dispute, the question of whether particular evidence falls within its terms is a matter for the trial judge presiding over the subsequent proceeding.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 128 (including ss 128(2), 128(5), 128(7))

Cases
- R v Cornwell [2003] NSWSC 660 (earlier ruling by Howie J in the same proceedings on the accused's entitlement to object and the issuing of the certificate)