R v Cornwell [2003] NSWSC 660

R v Cornwell [2003] NSWSC 660

The accused's involvement with Diez and Lawrence in ongoing drug distribution was not a fact in issue because it was not an ultimate matter the jury had to determine to prove the charged conspiracy to import cocaine; it was only a fact said to be relevant to participation in the conspiracy. Accordingly s 128(8) did not exclude the operation of s 128, Cornwell was entitled to claim privilege against self-incrimination about that uncharged drug distribution, but the interests of justice required him to answer such questions with the protection of a certificate under s 128.

Jurisdiction
Australia
Judgment Date
05 May 2003
Procedural Posture
Criminal Proceeding Concerning a Charge of Conspiracy to Import Cocaine / Evidentiary Ruling During Jury Trial on Privilege Against Self Incrimination and a Certificate Under S 128 of the Evidence Act 1995
Outcome
Section 128 of the Evidence Act applies to the accused's evidence relating to uncharged criminal conduct; if privilege is maintained, Cornwell is to answer questions about ongoing drug supply and receive a certificate.
Legal Topics
['privilege Against Self Incrimination' 'accused Giving Evidence' 'evidence Act 1995 S 128 Certificate' 'fact in Issue' 'uncharged Criminal Conduct' 'drug Importation and Supply Evidence']
['criminal Law' 'evidence'] ['privilege Against Self Incrimination' 'accused Giving Evidence' 'evidence Act 1995 S 128 Certificate' 'fact in Issue' 'uncharged Criminal Conduct' 'drug Importation and Supply Evidence']

Case Brief

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Procedural Posture

Criminal Proceeding Concerning a Charge of Conspiracy to Import Cocaine / Evidentiary Ruling During Jury Trial on Privilege Against Self Incrimination and a Certificate Under S 128 of the Evidence Act 1995

Legal Issues

  1. 1 ['Whether s 128 of the Evidence Act 1995 applies to evidence by the accused about uncharged criminal conduct involving drug distribution' "Whether the accused's involvement in ongoing drug supply was a fact in issue for the purposes of s 128(8)" 'Whether it was in the interests of justice to require the accused to answer questions about drug distribution if he claimed privilege against self-incrimination']

Ratio Decidendi

The accused's involvement with Diez and Lawrence in ongoing drug distribution was not a fact in issue because it was not an ultimate matter the jury had to determine to prove the charged conspiracy to import cocaine; it was only a fact said to be relevant to participation in the conspiracy. Accordingly s 128(8) did not exclude the operation of s 128, Cornwell was entitled to claim privilege against self-incrimination about that uncharged drug distribution, but the interests of justice required him to answer such questions with the protection of a certificate under s 128.

Court Disposition

Section 128 of the Evidence Act applies to the accused's evidence relating to uncharged criminal conduct; if privilege is maintained, Cornwell is to answer questions about ongoing drug supply and receive a certificate.

Orders

  • ['Cornwell is entitled to refuse to answer questions about involvement in ongoing drug supply on the ground that the answers may incriminate him.' 'In the interests of justice, Cornwell is required to answer such questions if asked and is to be granted a certificate under s 128 if the privilege is maintained.']