Citation: R v Cornwell [2003] NSWSC 660 revised – 19/08/2004
Court: NSW Supreme Court (Common Law Division)
Date: 5 May 2003
Judge(s): Howie J
Background
The accused was on trial in the Supreme Court for conspiracy to import cocaine. He elected to give evidence in his own defence in a joint trial involving two co-accused. In the course of his evidence, a question arose about whether he could be compelled to answer questions relating to his alleged involvement in the ongoing domestic distribution of cocaine, conduct that was not the subject of any charge against him.
The accused sought to claim the privilege against self-incrimination in respect of those questions. The Crown argued that evidence of his role in drug distribution was so significant to proving the charged conspiracy that it constituted a "fact in issue," thereby engaging the exclusion in s 128(8) of the Evidence Act and stripping him of any entitlement to claim the privilege.
Howie J was required to determine whether s 128 applied at all, and if so, whether the interests of justice required the accused to answer and receive a certificate protecting him from future use of those answers.
Legal Issues
- Whether s 128 of the Evidence Act 1995 applies to an accused giving evidence about uncharged criminal conduct, or whether the exclusion in s 128(8) removes that protection.
- What constitutes a "fact in issue" in a criminal trial for the purposes of s 128(8).
- Whether, if s 128 does apply, the interests of justice require the court to compel the accused to answer the questions and grant him a certificate under that section.
Decision
Howie J rejected the Crown's submission that the accused's alleged involvement in drug distribution amounted to a "fact in issue" in the charged conspiracy. His Honour held that a "fact in issue" in a criminal trial refers to matters the jury must ultimately determine to decide guilt, such as the elements of the offence and matters such as self-defence, mental illness, or statutory defences. It does not extend to every disputed factual matter, however probative or significant it may be to the Crown case.
The court drew support from s 94 of the Evidence Act, which uses the same term in the context of tendency and coincidence evidence, and from the Australian Law Reform Commission's Report No 26. Those materials reinforced the view that a "fact in issue" is ascertainable from substantive law and the nature of the charge, not from the manner in which the parties choose to conduct the proceedings. Because the accused's involvement in drug supply was not an element of the conspiracy charge and was not something the jury had to determine to resolve guilt, it was not a "fact in issue" within s 128(8).
Section 128 therefore applied to the accused's evidence on that topic. The accused was entitled to claim the privilege. However, Howie J went on to consider the interests-of-justice question under s 128, noting that the evidence was closely intertwined with the charged conduct, that the co-accused had a legitimate interest in cross-examining the accused fully, and that restricting cross-examination through a maintained claim of privilege would be unfair to them. On that basis, his Honour indicated that, if the privilege were maintained, he would exercise the power under s 128 to require the accused to answer and to grant him a certificate accordingly.
Orders Made
• Cornwell is required to answer questions about his involvement in the ongoing supply of drugs
• A certificate is to be granted to Cornwell in accordance with the relevant section if he maintains the privilege
Key Takeaways
- A "fact in issue" in a criminal trial is limited to matters the jury must determine to resolve guilt, including elements of the offence and matters such as defences raised, and does not extend to every disputed or highly probative fact in the proceedings.
- The significance or probative value of a fact to the Crown case does not, by itself, elevate that fact to a "fact in issue" within the meaning of s 128(8) of the Evidence Act 1995.
- Under s 128(8), the exclusion of the privilege against self-incrimination applies only where the accused's evidence would go directly to an act or state of mind that is itself a fact in issue; uncharged criminal conduct falling outside the charge's elements does not meet that threshold.
- Where s 128 does apply, the court retains the power to compel answers in the interests of justice while granting a certificate preventing subsequent use of those answers against the witness.
- Fairness to co-accused, including their right to cross-examine a witness fully on matters affecting their own guilt, is a relevant consideration when assessing whether the interests of justice favour compelling answers under s 128.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 94, 128
Cases
- Harriman v The Queen (1989) 167 CLR 590
- Smith v The Queen (2001) 206 CLR 650