Cornwell v The Queen [2007] HCA 12

Cornwell v The Queen [2007] HCA 12

On the correct construction of s 128(8), the privilege against self-incrimination is abrogated for any evidence from an accused which is, or tends to prove, the commission of the offence charged (that is, facts in issue), including circumstantial evidence. Thus, the accused's evidence at the first trial about domestic drug supply, being relevant to and tending to prove conspiracy to import, was not protected by s 128, and the certificate under that section was of no effect. The evidence was therefore admissible at the retrial, and the retrial judge was not bound by the prior judge's ruling or certificate. However, as the appellate court failed to properly consider the unreasonable verdict...

Parties
Applicant/respondent: Richard Bruce Cornwell; Respondent/appellant: The Queen
Jurisdiction
Australia
Judgment Date
22 March 2007
Procedural Posture
Criminal Appeal / High Court of Australia – Appeal From Court of Criminal Appeal of New South Wales, Cross Appeal on Special Leave
Outcome
Appeal allowed in matter S281/2006 and application for special leave to cross-appeal granted and allowed; Appeal dismissed in S282/2006; matter remitted to the Court of Criminal Appeal for further consideration of specific appeal grounds.
Legal Topics
Competence and Compellability of Accused Persons, Privilege Against Self Incrimination, Use and Effect of S 128 Certificates Under Evidence Act 1995 (nsw), Admissibility of Prior Evidence in Retrial, Appeal Against Conviction, Construction of 'fact in Issue' Under S 128(8) Evidence Act
Evidence Law Criminal Law Criminal Procedure Competence and Compellability of Accused Persons Privilege Against Self Incrimination Use and Effect of S 128 Certificates Under Evidence Act 1995 (nsw) Admissibility of Prior Evidence in Retrial Appeal Against Conviction +1 more

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Parties

Richard Bruce Cornwell

Applicant/respondent

The Queen

Respondent/appellant

Procedural Posture

Criminal Appeal / High Court of Australia – Appeal From Court of Criminal Appeal of New South Wales, Cross Appeal on Special Leave

Legal Issues

  1. 1 Whether s 128(8) of the Evidence Act 1995 (NSW) precluded the accused from relying on a certificate relating to evidence about supplying drugs within Australia
  2. 2 Whether evidence of the accused's prior testimony was admissible at retrial
  3. 3 Whether the trial judge in a retrial is bound by evidentiary rulings or certificates from the first trial

Ratio Decidendi

On the correct construction of s 128(8), the privilege against self-incrimination is abrogated for any evidence from an accused which is, or tends to prove, the commission of the offence charged (that is, facts in issue), including circumstantial evidence. Thus, the accused's evidence at the first trial about domestic drug supply, being relevant to and tending to prove conspiracy to import, was not protected by s 128, and the certificate under that section was of no effect. The evidence was therefore admissible at the retrial, and the retrial judge was not bound by the prior judge's ruling or certificate. However, as the appellate court failed to properly consider the unreasonable verdict...

Court Disposition

Appeal allowed in matter S281/2006 and application for special leave to cross-appeal granted and allowed; Appeal dismissed in S282/2006; matter remitted to the Court of Criminal Appeal for further consideration of specific appeal grounds.

Orders

  • Appeal No S281/2006 allowed.
  • Application for special leave to cross-appeal granted and cross-appeal allowed.