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Court of Criminal Appeal 11 April 2006

CORNWELL v REGINA REGINA v CORNWELL

[2006] NSWCCA 116

Also reported as 160 A Crim R 243
Drugs
CRIMINAL LAW S 128 CERTIFICATE ADMISSIONS UNREASONABLE VERDICT PROVISO APPLICATION OF THE "THIS JURY" TEST

Citation: Cornwell v Regina; Regina v Cornwell [2006] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 11 April 2006
Judge(s): McClellan CJ at CL; Hulme J; Adams J

Background

The appellant was convicted at a retrial in the District Court of conspiring to import a commercial quantity of cocaine (120 kilograms) into Australia, contrary to the Customs Act 1901 (Cth). The alleged conspiracy involved arranging for cocaine to be transported by vessel from South America, with the appellant said to be one of the principal organisers of the Australian end of the operation.

At his first trial before Howie J, the appellant gave evidence after the trial judge granted a certificate under s 128 of the Evidence Act 1995. That certificate was intended to protect him from having the evidence he gave used against him in subsequent proceedings. The first jury could not reach a verdict on the appellant, and a retrial was ordered.

At the retrial before Blackmore DCJ, the Crown sought to tender the transcript of the appellant's cross-examination from the first trial. The trial judge admitted it, taking a narrow view of the scope of the s 128 certificate. Faced with that ruling, the appellant tendered his entire first-trial evidence but did not take the stand himself at the second trial. He was convicted, and both he and the Crown (by a separate appeal) brought proceedings before the Court of Criminal Appeal.

  • Whether the trial judge at the retrial erred in admitting the transcript of the appellant's evidence from his first trial, given the s 128 certificate granted by Howie J
  • Whether the Crown's appeal should succeed on the basis that the certificate issued by Howie J was not authorised by s 128 and should be quashed
  • Whether the trial judge failed to adequately sum up the defence case
  • Whether the verdict was unreasonable and unsupported by the evidence
  • Whether, even if error was established, the proviso under the Criminal Appeal Act 1912 should be applied to preserve the conviction

Decision

The Court of Criminal Appeal upheld the appellant's appeal, with McClellan CJ at CL delivering the leading judgment (Hulme J and Adams J agreeing). The court's analysis focused primarily on the s 128 certificate issue, the adequacy of the summing-up, and the unreasonable verdict ground.

On the certificate issue, the court found that Blackmore DCJ erred in construing the s 128 certificate narrowly. The appellant had given evidence at the first trial in reliance on that certificate's protection. By admitting the transcript at the retrial, the trial judge undermined the protection the certificate was intended to provide. This had the further consequence of making it impossible for the appellant to give oral evidence at the second trial: had Blackmore DCJ been asked to grant a fresh certificate, he would not have done so, as the domestic charges the appellant's evidence touched upon made prosecution and likely conviction a real risk.

The court also noted that the admitted transcript included admissions of serious criminal conduct involving drug dealing, which must have reflected unfavourably on the appellant. The first jury, having heard and observed the appellant give that same evidence, had still been unable to convict him. The second jury, by contrast, received the evidence only in transcript form, without the opportunity to assess the appellant's demeanour, potentially diminishing any exculpatory benefit it might otherwise have carried.

The court declined to apply the proviso (the rule that an appeal may be dismissed despite established error if no substantial miscarriage of justice has occurred). Applying the "this jury" test from Weiss v The Queen [2005] HCA 81, the court held that although the Crown case was strong, the trial had miscarried in a way that meant the proviso could not save the conviction. The Crown's own appeal, which sought to have the s 128 certificate quashed entirely, was dismissed.

Orders Made

  • The appellant's appeal is upheld and a new trial ordered.
  • The Crown appeal is dismissed.

Key Takeaways

  • A certificate granted under s 128 of the Evidence Act 1995 operates to protect the person to whom it is issued from having their compelled evidence used against them in later proceedings; a narrow or inconsistent application of that protection at a retrial can constitute a miscarriage of justice.
  • Where a trial court's ruling on certificate protection effectively prevents an accused from giving oral evidence at a retrial, this can itself be a source of significant prejudice, separate from the direct admission of the protected evidence.
  • The Court of Criminal Appeal declined to apply the proviso under the Criminal Appeal Act 1912, even where the Crown case was described as strong, because the procedural errors had denied the second jury the same opportunity to assess the appellant's evidence that the first jury had enjoyed.
  • Under the "this jury" test in Weiss v The Queen [2005] HCA 81, the fact that the first jury had heard the same evidence and was unable to convict was a material consideration in determining whether the proviso should be applied at the retrial stage.
  • Dismissing the Crown's cross-appeal, the Court of Criminal Appeal refused to retrospectively quash the s 128 certificate on the basis that it had not been validly issued.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(k)
- Evidence Act 1995 (NSW), s 128
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Weiss v The Queen [2005] HCA 81