R v Cornwell [2004] NSWSC 45

R v Cornwell [2004] NSWSC 45

Because the applicant had been required to answer questions after taking a valid self-incrimination objection and had been told that a s 128 certificate would issue, s 128 imposed a mandatory obligation to cause the certificate to be given. Delay and the possible forensic effect of the certificate in the retrial did not provide a basis to refuse or defer issuing it, and the Court could not restrict the certificate beyond the terms of the statute.

Jurisdiction
Australia
Judgment Date
11 February 2004
Procedural Posture
Criminal Law and Procedure Application for a Certificate Under S 128 of the Evidence Act 1995 / Post Trial Application After a Jury Was Unable to Agree and Before or During a Retrial in the District Court
Outcome
Certificate under s 128 to issue.
Legal Topics
['privilege Against Self Incrimination' 'certificate Under S 128 of the Evidence Act 1995' 'use of Evidence in Subsequent Proceedings' 'retrial']
['criminal Law and Procedure' 'evidence'] ['privilege Against Self Incrimination' 'certificate Under S 128 of the Evidence Act 1995' 'use of Evidence in Subsequent Proceedings' 'retrial']

Case Brief

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Procedural Posture

Criminal Law and Procedure Application for a Certificate Under S 128 of the Evidence Act 1995 / Post Trial Application After a Jury Was Unable to Agree and Before or During a Retrial in the District Court

Legal Issues

  1. 1 ['Whether the Court could refuse to issue a certificate under s 128 of the Evidence Act 1995 because of delay in seeking it and its potential effect on the retrial.' 'Whether the Court could defer issuing the certificate until the District Court proceedings concluded.' 'Whether the certificate could be restricted so that it applied only to proceedings for offences other than the offence for which the applicant gave evidence.']

Ratio Decidendi

Because the applicant had been required to answer questions after taking a valid self-incrimination objection and had been told that a s 128 certificate would issue, s 128 imposed a mandatory obligation to cause the certificate to be given. Delay and the possible forensic effect of the certificate in the retrial did not provide a basis to refuse or defer issuing it, and the Court could not restrict the certificate beyond the terms of the statute.

Court Disposition

Certificate under s 128 to issue.

Orders

  • ['The Court will cause a certificate under s 128 of the Evidence Act 1995 to be given to the applicant.' 'The certificate will relate to evidence given by the applicant in answer to any question concerning the involvement of himself with Diez, Lawrence or any other person in the supply or trafficking in narcotic...