HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HEYDON AND CRENNAN JJMatter No S215/2006
RICHARD BRUCE CORNWELL APPLICANT
AND
THE QUEEN RESPONDENT
Matters No S281/2006 & S282/2006
THE QUEEN APPELLANT
AND
RICHARD BRUCE CORNWELL RESPONDENT
Cornwell v The Queen
[2007] HCA 12
22 March 2007
S215/2006, S281/2006 & S282/2006ORDER
In Appeal No S281 of 2006 and Application No S215 of 2006:
1. Appeal allowed.
2. Application for special leave to cross-appeal granted and cross-appeal allowed.
3. Matter remitted to the Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6, and reconsideration of ground 5, in the appellant's notice of appeal to that Court.
In Appeal No S282 of 2006:
1. Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
P Roberts SC for the respondent in Matter No S215/206 and for the appellant in S281/2006 and S282/2006 (instructed by Commonwealth Director of Public Prosecutions)
T A Game SC with S J Buchen for the applicant in matter No S215/2006 and for the respondent in S281/2006 and S282/2006 (instructed by Ford Criminal Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cornwell v The Queen
Evidence – Competence and compellability of accused persons – Accused convicted following retrial of conspiracy to import cocaine – Accused gave evidence after indications that a certificate under s 128(6) would be granted – At retrial, Crown sought to tender cross-examination evidence from first trial – Evidence held to be admissible at retrial – Construction of s 128(8) – Whether s 128(8) precluded accused from relying on the certificate – Privilege against self-incrimination – Meaning of "fact in issue" under s 128(8) – Distinction between "facts in issue" and "facts relevant to facts in issue" – Whether evidence went to a "fact in issue" at the retrial – Whether retrial was a "proceeding" to which s 128(7) applied.
Evidence – Criminal Procedure – Competency of Crown challenge to grant and issue of certificate – Significance of certificate granted under s 128 – Whether trial judge conducting retrial bound by evidentiary rulings in the first trial.
Evidence – Criminal Procedure – Whether evidence should have been excluded on discretionary grounds – Whether retrial was unfair – Whether accused prejudiced by evidence tendered at retrial.
Evidence – Criminal Procedure – Whether accused objected to giving evidence – Meaning of "objects" in s 128(1) – Whether s 128 applies where witness sets out to adduce evidence revealing offences other than the one charged.
Criminal Law and Procedure – Appeal – Appeal against conviction – Verdict of acquittal – Appeal ground alleges that conviction unreasonable and contrary to evidence – Obligation of Court of Criminal Appeal to consider and decide ground of appeal – Necessity of independent assessment – Whether reasons sufficiently demonstrate such assessment.
Words and phrases – "proceeding", "fact in issue", "fact relevant to a fact in issue" "objects", "interests of justice".
Criminal Appeal Act 1912 (NSW), s 5F.
Evidence Act 1995 (NSW), s 128(1), (6), (7), (8).
GLEESON CJ, GUMMOW, HEYDON AND CRENNAN JJ. This case involves two appeals and an application for special leave. They arise out of two trials of Richard Bruce Cornwell ("the accused") on a drug conspiracy charge. The charge was laid under federal law and prosecuted in the name of the Crown by the Commonwealth Director of Public Prosecutions ("the DPP")[1]. The first trial was conducted in the Supreme Court of New South Wales before Howie J and a jury. At that trial the jury failed to agree on the charge against the accused. The second trial was conducted in the District Court of New South Wales before Blackmore DCJ and a jury. At the second trial the accused was convicted.
[1]See Director of Public Prosecutions Act 1983 (Cth), s 9(1).
The first appeal is brought by the Crown against orders of the Court of Criminal Appeal of New South Wales (McClellan CJ at CL, Hulme and Adams JJ) upholding an appeal by the accused against his conviction at the second trial and ordering a new trial.
The second appeal is also brought by the Crown. It is an appeal against the Court of Criminal Appeal's failure to allow a Crown appeal against Howie J's grant of a certificate under s 128 of the Evidence Act 1995 (NSW) ("the NSW Act").
The application for special leave is an application by the accused for special leave to cross-appeal against the orders of the Court of Criminal Appeal. As presented, it criticises that Court's handling of a ground of appeal rejected by that Court, ground 5. Its ultimate goal is to obtain the entry of a verdict of acquittal, in place of the order for a new trial.
The background to these matters is complex and unusual. It led to considerable division of opinion in the courts below.
Background
The charge. On 17 February 2003 the DPP charged the accused on an indictment that he conspired (with eight other defendants, three other named persons "and divers others") to "import into Australia prohibited imports to which section 233B of the Customs Act 1901 [(Cth)] applied, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine". The period alleged was the period between about 1 January 2001 and about 6 August 2001. The provision allegedly contravened was s 233B(1)(cb)[2]. The quantity of cocaine allegedly involved was approximately 120 kilograms. The commercial quantity applicable to cocaine was two kilograms. The maximum sentence was a fine not exceeding $825,000 and/or imprisonment for life. The accused was sentenced to 24 years imprisonment, with a non-parole period of 14 years and six months.
[2]Section 233B(1)(cb) provided:
"(1)Any person who:
...
(cb)conspires with another person or other persons to import ... into Australia any prohibited imports to which this section applies ...
shall be guilty of an offence."
Howie J admits recorded conversations. The first trial began on 4 February 2003. On 20 February 2003, Howie J decided to admit into evidence certain listening device recordings of conversations between the accused and one of the defendants, Mr Diez, and between the accused and another of the defendants, Mr Lawrence ("the Diez-Lawrence conversations"). Howie J did so on the basis that the Diez-Lawrence conversations revealed that the three persons were involved in the business of supplying drugs to buyers in Australia, and that this was "highly probative evidence" of their participation in the alleged conspiracy to import drugs into Australia[3]. Howie J said[4]:
"A person involved in the drug trade has to obtain his supplies from somewhere. When that trade is as substantial as appears to be that in which the accused was involved, it is well open to the jury to find that the accused would be a participant in a conspiracy to obtain a substantial amount of drug for the purpose of carrying out the trade in which he was involved."
Howie J rejected various contentions advanced on behalf of the accused which are not now pressed, for example, that the evidence was tendency evidence which was not admissible under s 97 of the NSW Act, that the evidence was so unfairly prejudicial that the Court should exercise its discretion under s 137 of the NSW Act to exclude it, and that it was inadmissible because it did not comply with s 138 of the NSW Act.
[3]R v Cornwell (2003) 57 NSWLR 82 at 94 [40].
[4]R v Cornwell (2003) 57 NSWLR 82 at 95 [46].
The accused foreshadows an application for a s 128 certificate. On 30 April 2003 counsel for the accused[5] said that he expected his client would give evidence, but that he would wish to object to testifying about the Diez-Lawrence conversations. Counsel said that he would be seeking a certificate under s 128 of the NSW Act in relation to the accused's testimony on that subject. He said that Howie J would need to consider what procedure should be adopted.
[5]Who appeared at both trials, but not at the hearing of the appeals to the Court of Criminal Appeal or in this Court.
Section 128. Section 128 of the NSW Act provides:
"(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b)is liable to a civil penalty.
(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence, and
(b)that, if he or she gives the evidence, the court will give a certificate under this section, and
(c)of the effect of such a certificate.
(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.
(4) The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled, and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(5) If the court is satisfied that:
(a)the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and
(b)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and
(c)the interests of justice require that the witness give the evidence,
the court may require the witness to give the evidence.
(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(7) In any proceeding in a NSW court:
(a)evidence given by a person in respect of which a certificate under this section has been given, and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a)did an act the doing of which is a fact in issue, or
(b)had a state of mind the existence of which is a fact in issue.
(9) A reference in this section to doing an act includes a reference to failing to act."
Submissions of the parties. On 30 April 2003, on 1 May 2003, and on the next sitting day, 5 May 2003, some argument took place about the meaning of s 128(8). The DPP argued that the expression "fact in issue" included the supply of drugs within Australia revealed by the Diez-Lawrence conversations. His position was in effect that "fact in issue" meant a fact relevant to the proceedings which was in contest between the parties. Howie J advanced the contrary view. He suggested that "fact in issue" referred only to elements of the offence charged (here, importation into Australia); and that the supply of drugs within Australia was only a fact relevant to a fact in issue, rather than a fact in issue strictly so called. Counsel for the accused supported and sought to reinforce that construction. Below this will be referred to as "the accused's construction" of s 128(8). The competing view, which is to be preferred for reasons given below[6], is that even if "fact in issue" does not include the supply of drugs within Australia, the giving of evidence by the accused about that supply was "evidence that the [accused] ... did an act [conspiring to import drugs] the doing of which is a fact in issue".
[6]Below at [30]-[85].
Counsel for the accused pressed his request for guidance about the procedure to be adopted. He said that it could affect the terms of his opening address. He said that if the grant of a certificate were unlikely, that might lead to a reconsideration of whether or not the accused should give evidence. However, Howie J made it plain several times that he would not give any guidance about the relevant procedure, and would not decide whether or not he would grant a certificate, until the accused was asked a specific question and took an objection to it.
After counsel for the accused conferred with his client during a short adjournment, he said:
"Just so that your Honour understands where things are likely to proceed from here on [in]: I will open to the jury. I will call [the accused]. In the very early stages of his evidence-in-chief I will ask him a question. He will decline to answer that on the grounds it might tend to incriminate him. Then I expect that your Honour would wish to hear either argument or perhaps further evidence in the absence of the jury before determining whether or not to issue a certificate under s 128."
Howie J indicated agreement to this course and said: "Let's proceed and see what happens."
The accused's "objection". What happened was that after the accused entered the witness box a little later he answered 33 questions put by his counsel. He was then asked two questions which he answered as follows:
"Q. ... Some time after you re-established contact with Mr Diez, did he raise with you the possibility of involvement in some form of illegal activity?
A. In February.
Q. You may wish to preserve your legal rights here in answer to this question, Mr Cornwell. What did he say to you about the possibility of your involvement in some illegal activity?
A. Well, I don't want to answer that on the grounds of it may incriminate me."
Howie J's judgment of 5 May 2003. After Howie J heard submissions from counsel (including counsel appearing for other defendants) he delivered a detailed judgment. First, he rejected the DPP's argument that testimony about what the Diez-Lawrence conversations revealed of the accused's involvement in selling drugs in Australia was evidence of a "fact in issue" within the meaning of s 128(8), that hence s 128 did not apply and that no certificate could be granted[7]. Secondly, Howie J indicated that he would require the accused, under s 128(5), to answer questions about selling drugs in Australia, and would grant him a certificate under s 128(6)[8]. He required the legal representatives of the accused to present a draft certificate within three weeks[9], but this was not done. He did not give, or cause to be given, any certificate to the accused in the course of the first trial.
[7]R v Cornwell [2003] NSWSC 660 at [5]-[17].
[8]R v Cornwell [2003] NSWSC 660 at [18]-[27].
[9]R v Cornwell [2004] NSWSC 45 at [4].
The outcome of the first trial. On 23 June 2003 the jury convicted some of the defendants and acquitted others. However, the jury members were unable to agree on the charge against the accused and the charges against some of the other defendants.
The start of the second trial. On 27 January 2004 a second trial began; the jury was empanelled on 16 February 2004. The charge against the accused was similar to the charge against him in the first trial in the sense that it related to the same part of s 233B and the same drugs. Apart from the accused, there were four other defendants. Additional unindicted co-conspirators were named.
In that trial the DPP contended that statements made by the accused in evidence at the first trial were admissible in the second despite Howie J's judgment of 5 May 2003. On 6 February 2004 Blackmore DCJ ruled that any s 128 certificate issued by the Supreme Court would apply to the proceedings before him, on the basis that the trial before him was a "proceeding" within the meaning of s 128(7) which was different from the proceeding involved in the first trial before Howie J.
Howie J grants the s 128 certificate. The difficulty that no certificate had actually been issued by the Supreme Court was then met by counsel for the accused making an application to Howie J for a certificate. On 11 February 2004 it was granted. Howie J did indicate a strong view about s 128(7) to the contrary of that expressed by Blackmore DCJ, but did not see that as a reason for refusing the certificate[10].
[10]R v Cornwell [2004] NSWSC 45 at [11]-[13].
The certificate provided:
"This Court certifies under section 128 of the Evidence Act 1995 of New South Wales that evidence in these proceedings by Richard Bruce Cornwell
on 5 May 2003, 6 May 2003, 7 May 2003, 8 May 2003, 9 May 2003 and 12 May 2003 in relation to Richard Bruce Cornwell's involvement with Juan Guillermo Diez-Orozco, John Lawrence, and any other person in the supply or trafficking in narcotic goods between the 1st January and 10th August 2001
is evidence to which section 128 (7) of that Act applies."
The Evidence Regulation 2000 (NSW), cl 7(1), provided that a certificate under s 128 might be in accordance with Form 1, and Form 1 provided for a transcript, or other record of the evidence, to be attached to the certificate. None was. However, counsel for the accused marked a copy of the transcript to indicate which portions were in his contention covered by the certificate.
Blackmore DCJ receives the accused's testimony about the Diez-Lawrence conversations. The DPP had previously indicated to Blackmore DCJ that he wished to tender the whole of the accused's evidence in cross-examination from the first trial. On 12 February 2004 Blackmore DCJ made the crucial ruling of which the accused complains. He ruled that the Diez-Lawrence conversations "went to a fact in issue" in the trial before him and that s 128(8) precluded the accused from relying on the certificate to prevent the tender of evidence about those conversations. That is, he apparently declined to accept Howie J's ruling that s 128(8) did not apply to the accused's oral evidence about the Diez-Lawrence conversations and appeared to reach the conclusion that since s 128(8) was satisfied, s 128 as a whole did not apply[11]. If that were his reasoning, it would follow that the inhibition which Blackmore DCJ considered was otherwise created by s 128(7) on the use of the evidence against the accused did not exist. Blackmore DCJ rejected an argument that there was sufficient unfairness in the tender to outweigh the significant probative value of the evidence. The accused then requested that the Crown tender the whole of the accused's evidence at the first trial and not just the cross-examination. The Crown agreed to this course, and it was adopted. The accused did not give evidence at the second trial. On 8 June 2004 he was convicted. On 18 November 2004 he was sentenced.
[11]That was the Court of Criminal Appeal's view of what Blackmore DCJ did: Cornwell v The Queen (2006) 160 A Crim R 243 at 260 [84] and 261 [91].
The appeals to the Court of Criminal Appeal. In the meantime, on 24 February 2004 the DPP appealed to the Court of Criminal Appeal against Howie J's grant of the certificate. That appeal was eventually heard on 2 and 3 February 2006 at the same time as the accused's appeal against conviction.
The grounds of appeal relied on by the accused were:
"1.The learned trial judge erred by admitting against the [accused] evidence which was the subject of a certificate issued pursuant to section 128 of the Evidence Act.
2.The learned trial judge erred by referring to the [accused's] former evidence as (a) an admission tendered against the interests of the accused and (b) 'a possible version of the facts'.
3.The learned trial judge erred by directing the jury that conversations involving the [accused] could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy.
4.The learned trial judge failed to adequately sum up the defence case.
5.The verdict is unreasonable and cannot be supported by the evidence.
6.The learned trial judge erred in refusing to grant the [accused] access to the information on oath deposed by Federal Agent ... on 27 February 2001."[12]
[12]A list of revised grounds stated by the Court of Criminal Appeal comprised only the first five grounds: Cornwell v The Queen (2006) 160 A Crim R 243 at 245 [1]. But on this appeal the DPP said without contradiction by counsel for the accused that ground 6 was a ground of appeal as well.
The Court of Criminal Appeal upheld ground 1, briefly rejected ground 5, discussed ground 4 but did not decide it, and did not decide grounds 2, 3 and 6. The Court declined to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). The Court ordered a new trial. The Court dismissed the Crown appeal in relation to the issue of the certificate.
The issues
Five issues emerged in the argument.
The first and fundamental issue is whether the accused's construction of s 128(8) of the NSW Act was correct.
The second issue is whether Blackmore DCJ was correct to treat the second trial as falling within s 128(7).
The third issue is whether it is competent for the DPP now to challenge the certificate granted by Howie J on 11 February 2004 and the ruling underlying that grant made on 5 May 2003.
The fourth issue is whether Blackmore DCJ erred in failing to exclude the evidence given by the accused before Howie J in his discretion on grounds of unfairness.
The fifth issue is whether the accused's application for special leave to cross-appeal should be granted and the cross-appeal allowed. This issue turns on the Court of Criminal Appeal's treatment of ground 5.
First issue: did s 128(8) apply to the accused's testimony at the first trial?
Before s 128 could operate, a key question posed by s 128(8) had to be answered. Was the accused's testimony at the first trial about the drug dealing in Australia "evidence" that he "did an act the doing of which is a fact in issue" or that he "had a state of mind the existence of which is a fact in issue"? On the accused's construction of s 128(8), the answer is "No" and the balance of s 128 was capable of applying. If the answer is "Yes", s 128 could not have applied, there would have been no power to "require" the accused to give the evidence pursuant to s 128(5), and there would have been no justification for causing the accused to be given a certificate under s 128(6). It would have been a matter for the accused and his counsel what questions were asked in chief, and the accused would have been obliged to answer any otherwise permissible questions in cross-examination.
The right answer to the question just posed is "Yes", because the accused's construction of s 128(8) is not correct. Section 128(8), in New South Wales and other jurisdictions in which it or identical provisions apply[13], is the successor to s 1(e) of the Criminal Evidence Act 1898 (UK) ("the 1898 Act") and its Australian equivalents. The affirmative answer to the question flows from the language of s 128(8) considered in the light of that earlier legislation and the Australian Law Reform Commission Reports which led to the enactment of s 128(8).
[13]Evidence Act 1995 (Cth), s 128(8) (Federal Courts and Australian Capital Territory); Evidence Act 2001 (Tas), s 128(8); Evidence Act 2004 (Norfolk Island), s 128(8).
Section 1(e) of the 1898 Act and its Australian equivalents. At common law parties to legal proceedings were generally not competent witnesses: they could not testify, on their own behalf or otherwise, even if they wanted to. The nineteenth century justification for this rule was that the credibility of their evidence was tainted by their interest in the outcome, although other explanations for its earlier development have been suggested[14]. The legislature rejected this justification in relation to non-party witnesses in 1843, when s 1 of the Law of Evidence Act (UK) (Lord Denman's Act) abolished their incompetence on the grounds of interest. When the county courts were established in 1846, the parties were rendered competent: County Courts Act 1846 (UK), s 83. For civil cases generally the Law of Evidence Amendment Act 1851 (UK) abolished the common law rule of party incompetency and non-compellability (except as between husband and wife). That exception was greatly narrowed by the Evidence Amendment Act 1853 (UK), rendering spouses competent and compellable except in proceedings instituted in consequence of adultery. The last exception in turn was abolished by the Evidence Further Amendment Act 1869 (UK).
[14]Allen, The Law of Evidence in Victorian England, (1997) at 96-97.
So much for party-witnesses in civil proceedings. What of the accused in criminal proceedings? It is well-known that in Rationale of Judicial Evidence, first published in 1827, Bentham opposed the rule rendering accused persons incompetent in their own defence. His preferred position – administration of compulsory questioning, coupled with a power in the court to infer guilt from failure to respond – has not prevailed in Australia. But his criticism of the common law rule of incompetence had some influence during the debate which led to its abolition. Speaking of the late nineteenth century, Windeyer J said[15]:
"Proposals that accused persons should be permitted to give evidence on oath, and considerations of the qualifications that should be entailed upon the conferring of such a right, had been the subject of vigorous controversy in England ...".
That controversy had been going on from at least the mid-nineteenth century[16].
[15]Bridge v The Queen (1964) 118 CLR 600 at 613.
[16]See Allen, The Law of Evidence in Victorian England, (1997) at 10-11 and 123-180. See also Bodansky, "The Abolition of the Party-Witness Disqualification: An Historical Survey", (1982) 70 Kentucky Law Journal 91 at 105-129; Parker, "The Prisoner in the Box – The Making of the Criminal Evidence Act, 1898" in Guy and Beale (eds), Law and Social Change in British History, (1984) at 156-175.
It was a debate in which the participants included leading statesmen with a legal background (for example, Robert Lowe and Sir William Harcourt); prominent former or future judges (for example, Lord Brougham, Lord Chief Baron Kelly, Sir James Fitzjames Stephen and Sir Richard Webster); lawyers of all kinds; and influential lay writers (for example, Charles Dickens). A key institutional participant was the Law Amendment Society: it was created by Lord Brougham in 1844, it produced a quarterly journal called The Law Review, and it engaged in activities like conducting a survey of the County Court judges to obtain their views on the effects of the County Courts Act 1846 (UK) and conducting a survey of judges and Attorneys-General in the American States and Canadian provinces about the rendering of the accused competent[17]. Another leading participant in the debate was Pitt Taylor, who in 1848 published the first of the eight editions of his Treatise on the Law of Evidence to appear in his lifetime, who had drawn up a Bill, introduced unsuccessfully in 1845 by Lord Brougham, to enable parties and their spouses to give evidence in civil cases, who had drawn up the Report of the Common Law Committee of the Law Amendment Society which recommended the reform embodied in the Law of Evidence Amendment Act 1851 (UK), and who had prepared the first draft of that Act. Another influence on the debate came from John Appleton, a Justice of the Supreme Court of Maine from 1852 to 1862, and the Chief Justice from 1862 to 1883. From 1829 he wrote articles strongly affected by Bentham, not only in thought[18]. He advocated the grant of competency to parties in civil suits (which was achieved in Maine in 1856). From 1835, he also advocated the grant to defendants in criminal trials of the right to testify on their own behalf[19], and this campaign led to Maine becoming the first common law jurisdiction to enact permanent[20] legislation to this effect, first in relation to certain lesser offences in 1859 and then generally in 1864[21]. Other States and Territories followed suit[22]. A letter from Appleton CJ to the Massachusetts Committee on the Judiciary advocating that the accused be made competent was published in England in 1866[23].
[17]Goodeve, "The Examination of Accused Persons", (1876) 1 Law Magazine and Review (4th Series) 630. See also Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800-1865, (1998) at 166-167.
[18]They were collected in The Rules of Evidence Stated and Discussed, (1860), a work in the style of Bentham.
[19]The Rules of Evidence Stated and Discussed, (1860), ch vii, first published as "Rules of Evidence. No. 6. Of the Admission of Parties as Witnesses in Criminal Procedure", (1835) 13 American Jurist and Law Magazine 46.
[20]Connecticut had preceded Maine in 1848, but the common law position was restored in 1849. Opinions differ on whether the provision in 1848 was enacted inadvertently (Gold, The Shaping of Nineteenth-Century Law: John Appleton and Responsible Individualism, (1990) at 61 and 187 n 15), or whether it was enacted deliberately but was then thought to work badly (Fisher, "The Jury's Rise as Lie Detector", (1997) 107 Yale Law Journal 575 at 665 n 425.
[21]Gold, The Shaping of Nineteenth-Century Law: John Appleton and Responsible Individualism, (1990) at 61.
[22]By the end of the nineteenth century every State but Georgia had done so: see Ferguson v Georgia 365 US 570 at 577 n 6 (1961).
[23]Anon, "Testimony of Parties in Criminal Cases", (1866) 21 Law Magazine and Law Review 339 at 342-347.
Those in the United Kingdom who were opposed to the accused's testimonial incompetence faced considerable difficulties. Those difficulties are illustrated by the fact that although in the four decades preceding its general abolition by the 1898 Act there were numerous Private Member's Bills seeking to achieve that result, and that in the two decades before 1898 both Liberal and Conservative administrations introduced numerous Bills seeking to achieve it, these Bills persistently failed. And they failed even though in many self-governing Colonies in the Empire equivalent Bills were enacted without fuss.
The difficulties did not lie merely in the task of persuading adherents to the status quo to change their minds. They also arose from the fact that any legislative decision to make accused persons competent but not compellable raised other questions. Should the accused's evidence be given on oath or not? What could be said to the jury about, or inferred from, the accused's decision not to testify? To what extent could the accused be cross-examined on matters of credit? And, most relevantly for present purposes, to what extent could the accused be cross-examined on matters relevant to the charge apart from credit?[24]
[24]This is the issue underlying s 128(8) and its precursors. The terms of s 1(e) of the 1898 Act are set out at [54]. Some of the provisions of Bills unsuccessfully introduced before 1898 which correspond with s 1(e) are set out below at fn 40 and 41.
Once the 1898 Act was enacted, Australian legislation was introduced to adopt, or altered to conform to, the model of that enactment. The model stood in the United Kingdom for over 100 years and in four Australian jurisdictions for nearly 100 years. Indeed in five of them it still stands. The accused's construction of s 128(8) rests on the conclusion that that model, particularly in relation to cross-examination of the accused on issues bearing on guilt other than credit and character, has been abandoned. That is not a conclusion lightly to be reached.
Developments in the United Kingdom may be surveyed chronologically as follows. A partial breach in the common law rule rendering accused persons incompetent in criminal cases was effected by the Summary Jurisdiction Act 1848 (UK): s 14 permitted the defendant to give evidence on the hearing of an information or complaint under that Act. With a view to achieving the general abolition of the common law rule, Lord Brougham introduced Bills into the House of Lords in 1858, 1859 and 1860, but without success. In 1861, Pitt Taylor read a paper to the Law Amendment Society advocating abandonment of the common law incapacity of the accused to testify, which was thereafter published[25]. In 1865, Vincent Scully[26] introduced a Bill for abolition, as did Sir Fitzroy Kelly[27], both again without success.
[25]"On the Expediency of passing an Act to permit Defendants in Criminal Courts, and their Wives or Husbands, to testify on Oath", (1861) 5 The Solicitors' Journal and Reporter 363 at 363-364, 383-385.
[26]A Queen's Counsel who was the Liberal Member for Cork.
[27]The former Attorney-General and Solicitor-General, a Conservative, shortly to be appointed Lord Chief Baron.
Although these and later attempts at general abolition did not succeed in England until 1898, more piecemeal changes began to be made from 1867. The legislature frequently followed the practice, when it created a new criminal offence, of also providing that persons charged with that offence were competent witnesses in relation to it[28]. This approach solved particular difficulties, but also necessarily "created numberless anomalies"[29], as the Earl of Halsbury LC, moving the second reading of the Criminal Evidence Bill 1898 in the House of Lords, was able to point out with considerable effect[30].
[28]The following are examples. The Master and Servant Act 1867 (UK), s 16, rendered parties to a contract of service and their spouses competent witnesses on the hearing of an information or complaint brought under it. Section 51(4) of the Licensing Act 1872 (UK) provided that in summary proceedings for offences under the Act the defendant and his wife were competent to give evidence. Section 11 of the Conspiracy, and Protection of Property Act 1875 (UK) provided that on the hearing of any indictment or information for the offences relating to breaches of contract created by ss 4-6 the parties to the contract and their spouses were competent to give evidence. The Explosives Act 1875 (UK), s 87, in certain circumstances made defendants to charges brought under the Act competent witnesses. The Merchant Shipping Act 1876 (UK), s 4, made a defendant charged with knowingly taking, sending, or attempting to send an unseaworthy ship to sea a competent witness. The Evidence Act 1877 (UK), s 1, made defendants to indictments relating to certain public nuisances and related crimes competent where the proceedings were instituted for the purpose of trying a civil right. The Corrupt and Illegal Practices Prevention Act 1883 (UK) made the accused competent in any prosecution for any offence under the Act. The Criminal Law Amendment Act 1885 (UK), s 20, made defendants and their spouses competent witnesses in relation to offences under the Act and other sexual offences. The Merchandise Marks Act 1887 (UK), s 10, made defendants and their spouses competent in relation to any offence under the Act. The Coal Mines Regulation Act 1887 (UK), s 62(ii), provided that any person charged with an offence under the Act was competent. The Prevention of Cruelty to, and Protection of, Children Act 1889 (UK), s 7, rendered defendants and their spouses competent witnesses. The Betting and Loans (Infants) Act 1892 (UK), s 6, made defendants charged with any offence under the Act and their spouses competent. Similar legislation existed in relation to various summary offences: see Stephen, A Digest of the Law of Evidence, (1893) at 125. Sir Richard Webster, when as Attorney-General he moved the second reading of the Criminal Evidence Bill in the House of Commons, estimated that 26 of those Acts had been passed since 1873: United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 56 at 978 (25 April 1898).
[29]Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial, 3rd ed (1963) at 46.
[30]United Kingdom, House of Lords, Parliamentary Debates, 4th series, vol 54 at 1171-1172 (10 March 1898). See also Lord Herschell at 1176-1178 and the Attorney-General, Sir Richard Webster, moving the second reading of the Bill in the House of Commons: United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 56 at 977 (25 April 1898).
In 1876, 1877 and 1878, Evelyn Ashley[31] introduced Bills seeking general abolition of incompetence. During the debate on the second reading of the 1878 Bill, Sir John Holker, Conservative Attorney-General, announced that the Law Officers intended to introduce draft legislation including a code of criminal procedure for indictable offences which would have a similar effect to Ashley's proposals.
[31]A barrister and Liberal; a son of the great Shaftesbury; private secretary to and biographer of Palmerston. By a curious coincidence the political career of this prominent Parliamentary advocate of competence for the accused was terminated in 1885 by his defeat in the Isle of Wight at the hands of his main successor in that role, Sir Richard Webster, particularly as Attorney-General in Salisbury's first three administrations.
What Sir John Holker had in mind was cl 368 of a code drafted by Sir James Fitzjames Stephen. That provided for the accused to make an unsworn statement at the end of a prosecution case or to be examined in chief without being sworn. Cross-examination was to be confined to "the matter in issue and matters relevant thereto, and shall not be directed to matters affecting the defendant's credit or character"[32]. A Royal Commission (of which the members were, apart from Stephen, Lord Blackburn, Lord Justice Lush and Mr Justice Barry) revised Stephen's code, and cl 523 of the draft code annexed to their Report corresponded with cl 368[33]. Clause 523 provided:
"Every one accused of any indictable offence shall be a competent witness for himself or herself upon his or her trial for such offence, and the wife or husband as the case may be of every such accused person shall be a competent witness for him or her upon such trial: Provided that no such person shall be liable to be called as a witness by the prosecutor, but every such witness called and giving evidence on behalf of the accused shall be liable to be cross-examined like any other witness on any matter though not arising out of his examination-in-chief: Provided that so far as the cross-examination relates to the credit of the accused, the court may limit such cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness." (emphasis added)
The Report[34] said of cl 523:
"As regards the policy of a change in the law so important, we are divided in opinion. The considerations in favour of and against the change have been frequently discussed and are well known. On the whole we are of opinion that, if the accused is to be admitted to give evidence on his own behalf, he should do so on the same conditions as other witnesses, subject to some special protection in regard to cross-examination."
[32]See Criminal Code (Indictable Offences) Bill 1878 (Bill 178) in House of Commons Parliamentary Papers, (1878), vol 2 at 5 (emphasis added).
[33]United Kingdom, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences, (1879) [C 2345].
[34]United Kingdom, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences, (1879) [C 2345] at 37.
The Bill proposed by the Commission was discussed in the House of Commons in 1879, but the government decided it was not possible to proceed with it in that session. Another Bill[35], containing in cl 471 a provision equivalent to cl 523, was read a second time in 1880, but was not proceeded with[36].
[35]Criminal Code Bill (Bill 2) in House of Commons Parliamentary Papers, (1880), vol 2 at 1.
[36]For the reasons, see Darkan v The Queen (2006) 80 ALJR 1250 at 1259 [36] per Gleeson CJ, Gummow, Heydon and Crennan JJ; 228 ALR 334 at 343.
In the same year, 1880, a Private Member's Bill for a criminal code – the Criminal Code (No 2) Bill – was introduced into the House of Commons. If that Bill had been enacted, accused persons would have become competent (cl 337) to give unsworn evidence (cl 341) and be questioned about it in the same way as ordinary witnesses, save that accused persons were not to be asked "any question with a view to impeaching [their] credit generally", and the questions which were asked were to be "such only as are reasonably calculated to elicit the whole knowledge of the accused in relation to the particular offence then being tried" (cl 341)[37].
[37]Bill 47 in House of Commons Parliamentary Papers, (1880), vol 2 at 223.
In 1882 a further Private Member's Bill – the Criminal Law Amendment Bill – contained cl 106, which was identical with cl 523 of the 1879 Bill[38]. The Liberal Attorney-General, Sir Henry James, while favouring the Bill, argued that the responsibility for so great a change in the law had to rest with the government. The Bill was dropped. But, faithful to what Sir Henry had said, in 1883 the government introduced the Criminal Code (Indictable Offences Procedure) Bill, cl 100 of which corresponded with cl 106 of the 1882 Bill[39]. Eventually the 1883 Bill was dropped in committee: this was apparently the result of its size, complexity and importance, and the employment of delaying tactics by Irish Nationalist members. Indeed the 1898 Act itself might never have been enacted if it had not been limited to the narrow issues of rendering accused and their spouses competent and if it had not contained s 7(1), which provided that it did not extend to Ireland.
[38]Bill 15 in House of Commons Parliamentary Papers, (1882), vol 2 at 1.
[39]Bill 8 in House of Commons Parliamentary Papers, (1883), vol 2 at 249.
In 1884 Lord Bramwell presented a very short Bill to render the accused competent[40]. It passed the House of Lords, but not the House of Commons. In 1885 a very short government Bill of the same kind was introduced into the House of Commons without success[41]. Further Bills were introduced in 1886 and 1887. In 1888 the government introduced another Bill which was similar in some respects to Lord Bramwell's in 1884[42]. It failed by reason of delays caused by the opposition of Irish members. Yet further Bills were introduced without success in 1889 and 1891.
[40]Bill 9 in House of Lords Sessional Papers, (1884), vol 4 at 39. Section 4 provided that an accused who testified had no right "to refuse to answer any question on the ground that it would tend to criminate him or her as to the offence charged, unless the court ... shall think fit."
[41]Bill 65 in House of Commons Parliamentary Papers, (1884-1885), vol 2 at 363. Proviso (c) to cl 2 was in these terms:
"A person called as a witness in pursuance of this Act shall not be asked, and, if asked, shall not be required to answer, any questions tending to show that any defendant has committed or been convicted of any offence other than that wherewith he is then charged, unless the proof that the defendant has committed such other offence is admissible evidence to show, that such defendant is guilty of the offence wherewith he is then charged, or unless such defendant has given evidence of good character."
[42]Bill 132 in House of Commons Parliamentary Papers, (1888), (132), vol 2 at 407.
In 1892, 1893 and 1894 more Bills passed the House of Lords but the session ended before they could be considered by the House of Commons. In the next three years yet more Bills were introduced without success. Then, against an immediate background of public controversy on the issue in the newspapers, in other journals and in pamphlets, the 1898 Act was enacted. In the House of Lords debate on the motion that the Bill be read a second time, aggressively moved by the Earl of Halsbury LC, his political opponent, Lord Herschell, delivered a passionate speech supporting the Lord Chancellor's remarks. The tone of these two speeches can be understood in the light of a remark by the First Lord of the Treasury, A J Balfour, in his most weary style, after more than eight hours' debate in the House of Commons on the motion of the Attorney-General, Sir Richard Webster, that the Bill be read a second time[43]:
"I beg to make an appeal to the House to bring this interesting and important Debate to a conclusion. I would remind the House that the principle of the Bill, which, after all, is the one thing we are discussing tonight, has been decided eight times in the House of Lords, in which even those most opposed to that House will admit that legal talent is very strongly represented, and four times in the House of Commons. A Bill which has passed a Second Reading four times in the House of Commons in different Houses, with different majorities predominating, and under varying circumstances, is surely one which we may to-night pass after the full and important discussion which has taken place."
Although there was no substantial opposition in the House of Lords and no division, there was much opposition in the House of Commons; however, 233 members voted for a second reading and only 80 against. Many leading lawyers apart from the Attorney-General were present. A future Lord Chancellor (Sir Robert Reid) spoke, as did Sir Edward Clarke, Edward Carson, the future Mr Justice Bucknill and the future Mr Justice Evans. Among those who did not speak but voted were the future Lord Atkinson, a future Master of the Rolls (H H Cozens-Hardy), two future Lord Chancellors (Sir Robert Finlay and R B Haldane), and one who was offered the Lord Chancellorship but declined it (H H Asquith).
[43]United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 56 (25 April 1898) at 1075-1076.
For present purposes, the principal interest of the House of Commons speeches lies in three aspects.
The first is the demonstration by opponents of the Bill that there were distinguished lawyers who preferred other solutions to the problems with which it dealt.
The second is the references made to the success which the grant of testimonial competence to accused persons had enjoyed in "practically all the States of America ... all our self-governing Colonies, and ... a great many of our Crown Colonies ..."[44]. The American States were dealt with above[45]. Among the Australian Colonies, competence was granted in South Australia in 1882[46], New South Wales in 1891[47], Victoria in 1891[48] and Queensland in 1892[49]. In Tasmania competence was conferred in summary proceedings in 1888[50]. In New Zealand the accused was made competent in 1889[51]. In the Cape Colony testimonial competence was granted in 1886[52]. In Canada it was granted in 1893[53].
[44]United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 56 at 978 (25 April 1898) (Sir Richard Webster) and 1006 (Sir Robert Reid). See also United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 54 at 1176 (10 March 1898) (Earl of Halsbury LC). Cf United Kingdom, House of Commons, Parliamentary Debates, 4th series, vol 56 at 1016-1017 (25 April 1898) (A Lyttelton) and 1017 (T M Healy).
[45]Above at [34].
[46]Accused Persons Evidence Act 1882 (SA), ss 1 and 5. "[N]o presumption of guilt" was to "be made from" the accused's election not to give evidence (s 1). Section 5 provided: "Any person so giving evidence shall be liable to be cross-examined as in the case of any other witness, and shall not be excused from answering any question on the ground that the answer may tend to criminate himself ...".
[47]Criminal Law Evidence Amendment Act 1891 (NSW) (in relation to indictable offences). Section 6 provided that an accused person giving evidence was not "to be questioned on cross-examination without the leave of the Judge as to his or her previous character or antecedents". It was replaced by s 7 of the Evidence Act 1898 (NSW).
[48]Crimes Act 1891 (Vic). Section 34(3) provided: "A person called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, either on examination cross-examination or re-examination any question not relevant to the particular offence with which he is charged unless such person has given evidence of good character."
[49]Criminal Law Amendment Act 1892 (Qld). Section 3 provided in part: " ... Nothing in this section shall render any person compellable to answer any question tending to criminate himself or herself with respect to any matter other than the offence for which he or she is being tried, and on the trial of which he or she tenders himself or herself as a witness."
[50]An Act to further amend the Law of Evidence 1888 (Tas), s 1.
[51]Criminal Evidence Act 1889 (NZ).
[52]Administration of Justice Act 1886: see Hoffmann, The South African Law of Evidence, 2nd ed (1970) at 58.
[53]Canada Evidence Act 1893: see Noble, "The Struggle to Make the Accused Competent in England and in Canada", (1970) 8 Osgoode Hall Law Journal 249.
The third point of interest in the Second Reading speeches lies in their rehearsal of the many arguments put against the grant of competence to the accused in the course of the previous half century. These arguments divided the legal profession, they divided each major political party, and individual lawyers changed their minds on the issues from time to time as particular arguments were pressed. They will now briefly be noted – not with a view to debating their force, but merely to underline the seriousness and significance of the resolution arrived at in the 1898 Act.
The principal arguments for conferring general competence on accused persons were as follows. First, it would reduce the risk of a miscarriage of justice by creating a new avenue by which innocent accused persons could negate guilt, particularly if they were unrepresented. Secondly, the goal of the trial was to discover the truth, and to grant competence removed one obstacle to the achievement of that goal: it increased the chance not only of acquitting the innocent but of convicting the guilty. Thirdly, the creation of limited grants of competence for particular offences in the last third of the nineteenth century had resulted in many anomalies. It was also anomalous in principle that the legislative decision to render admissible the evidence of the parties in civil cases, despite their interest in the outcome, had not been matched by the same change in criminal cases. Hence it was argued that to render accused persons competent was merely to extend a natural and existing trend in the law. Finally, the grant of competence in the United States and many parts of the Empire had not caused any difficulty; nor had the grant of competence in relation to particular newly created statutory offences.
The principal arguments against conferring general competence on accused persons were as follows. First, the difficulties in which many accused persons found themselves meant that they would be presented with an irresistible temptation to commit perjury. The grant of competence would enable oppression by skilful counsel of ignorant accused persons. Since it would be difficult to prevent the jury from drawing adverse inferences from silence, the change would have the effect of compelling accused persons to testify and would create, in practice, an alteration in the standard and burden of proof. It would generate the conviction of the innocent. It would assimilate English legal procedure to French, which was thought to operate unfairly to the accused, and would lead to unseemly wrangling between judge and accused. It would prejudice the impartiality both of prosecution counsel and the judge. The Bill's attempt to control the introduction of the accused's record was inadequate.
These were arguments about what were seen as fundamentally important issues. The competing arguments were put with varying degrees of emphasis and detail in different combinations. Equally complex attempts were made to refute or qualify them. The point is that the legislature reacted to these arguments, after many years in which numerous possibilities had been put forward in Bills presented but not enacted, by enacting a particular compromise or accommodation which was thought correct. Few legislative changes have been more closely examined, or by more experienced observers.
Apart from its conferral of testimonial competence on accused persons and their spouses, the key relevant parts of the 1898 Act, s 1, for present purposes are as follows:
"(e)A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged:
(f)A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –
(i)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii)he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or
(iii)he has given evidence against any other person charged with the same offence ...".
After the 1898 Act had been enacted, the Australian position came to assume very similar form in legislation rendering accused persons competent to testify in their own defence. First, through provisions similar to s 1(e) of the 1898 Act, accused persons could be asked any question in cross-examination notwithstanding that it would tend to criminate them of the offence charged[54]. Secondly, in jurisdictions other than New South Wales (and, before 1971, the Australian Capital Territory) a regime generally similar to s 1(f) of the 1898 Act was expressly adopted[55]. Only in New South Wales before 1974 (and the Australian Capital Territory before 1971) was the position less clear. Section 407 of the Crimes Act 1900 (NSW) (also in force in the Australian Capital Territory until 1971)[56] provided that although accused persons were rendered competent, no person charged with an indictable offence was liable "to be questioned on cross-examination as to his previous character or antecedents, without the leave of the Judge". Before the enactment of ss 413A and 413B of the Crimes Act in 1974, which introduced a modification of the 1898 Act model, the New South Wales Court of Criminal Appeal held that the same principles were to be applied in New South Wales as had been enacted in the United Kingdom and Victorian legislation[57].
[54]For Victoria, see Crimes Act 1891, s 34(3); Crimes Act 1915, s 432(3); Crimes Act 1928, s 432(d); Crimes Act 1957, s 399(d); Crimes Act 1958, s 399(4). For Queensland, see Criminal Law Amendment Act 1892, s 3, replaced in 1961 by s 618A of the Criminal Code, (inserted by the Criminal Code and Other Acts Amendment Act 1961, s 31), and continued by s 15(1) of the Evidence Act 1977. For South Australia, see Accused Persons Evidence Act 1882, s 5, replaced by Evidence Amendment Act 1925, s 12(d) and Evidence Act 1929, s 18(v). For Tasmania, see Evidence Act 1910, s 85(1)(iv). For Western Australia, see Criminal Evidence Act 1899, s 3(e), and Evidence Act 1906, s 8(1)(d). For the Australian Capital Territory, between 1971 and the enactment of the Evidence Act 1995 (Cth), see Evidence Ordinance 1971, s 69; Evidence Act 1971, s 69. In New South Wales, the same position held by implication until enactment of the NSW Act in 1995: Crimes Act 1900 (NSW), s 407(1)(b). Thus Gobbo (ed), Cross on Evidence, 1st Aust ed (1970) at 291 n 38 said that the loss of the privilege against self-incrimination was "implicit" in s 407(1)(b). It has held in the Northern Territory since 1939: Evidence Ordinances 1939, s 9(7); Evidence Act, s 9(7). While the legislation in New South Wales, Queensland, the Australian Capital Territory and the Northern Territory did not use the actual word "cross-examination", the Queensland and Australian Capital Territory legislation is to be construed as if it did, and the same outcome must be "implicit" in the New South Wales and Northern Territory legislation.
[55]Adoption took place in the following order. In Western Australia it took place in 1899 by the Criminal Evidence Act, s 3(f), and continued in the Evidence Act 1906, s 8(1)(e). In Tasmania adoption took place by the Evidence Act 1910, s 85(1)(v): see now Evidence Act 2001, s 104. For Victoria, see Crimes Act 1915 (No 2), introducing s 432(5) of the Crimes Act 1915, and continued as Crimes Act 1928, s 432(e), Crimes Act 1957, s 399(e) and Crimes Act 1958, s 399(5). In South Australia adoption took place in 1925 in s 12 of the Evidence Amendment Act, and has continued under the Evidence Act 1929, s 18. In the Northern Territory adoption took place in the Evidence Ordinances 1939, s 9(7), and continued in the Evidence Act, s 9(7). In Queensland adoption took place in 1961 with the insertion of s 618A into the Criminal Code by the Criminal Code and Other Acts Amendment Act 1961, s 31, and continued in substance in s 15(2) of the Evidence Act 1977. Adoption existed in the Australian Capital Territory between 1971 and 1995: Evidence Ordinance 1971, s 70; Evidence Act 1971, s 70.
[56]Section 407 of the Crimes Act 1900 (NSW) was one of the laws in force in the Australian Capital Territory immediately before 1 January 1911, and therefore continued in force pursuant to the Seat of Government Acceptance Act 1909 (Cth), s 6. Section 407 ceased to apply in the Territory from 1971: Crimes Ordinance, 1971 (ACT), s 8.
[57]R v Woods (1955) 56 SR (NSW) 142 at 145.
Thus the Australian jurisdictions which had conferred competence on the accused before 1898 tended to alter their legislation so as substantially to mirror the 1898 Act. The Australian jurisdictions which had not conferred competence on the accused by 1898 thereafter adopted the approach of the 1898 Act when they did so.
The language of the equivalents to s 1(e) of the 1898 Act did not support the view that their application turned on any distinction between "facts in issue" and "facts relevant to facts in issue". Nor did any decision on that language. In discussing the general law of evidence that distinction is sometimes drawn. It is the distinction between the facts in issue, which are to be identified by reference to the substantive law and anything which defines the issues, like pleadings or a plea of "not guilty", and matters of fact from which inferences going to the existence or non-existence of facts in issue may be drawn. Facts relevant to facts in issue are often called "circumstantial evidence". The distinction between facts in issue and facts relevant to facts in issue is not material to any specific rule of the law of evidence at common law, save for such exceptional instances as the standard of proof of circumstantial evidence in criminal cases[58], and, in some cases, jury directions on circumstantial evidence.
[58]Shepherd v The Queen (1990) 170 CLR 573.
It can be seen, then, that the problems raised by granting to the defendant the right to testify in criminal cases were serious and controversial; that the grant had been opposed for a long time on many grounds; and that even experienced lawyers who favoured the grant of competence came up with radically different solutions to the problems which conferral created. Notwithstanding these disagreements, the Australian legislatures achieved unanimity on the proposition that the defendant's privilege against self-incrimination was abolished so far as matters of fact tending to criminate the accused as to the crime charged were concerned. In these circumstances it is highly unlikely that the enactment of s 128(8) of the NSW Act in 1995, and the corresponding Commonwealth legislation, the Evidence Act 1995 (Cth) ("the Commonwealth Act"), would have had the effect of changing the law by the introduction of a distinction, not specifically referred to in the statutory language, between self-incrimination as to facts in issue and self-incrimination as to facts relevant to facts in issue, unless clear language were employed. There is no suggestion in reports prepared by the Australian Law Reform Commission or the New South Wales Law Reform Commission that any such change was intended. There is no such suggestion in the Second Reading Speeches. And the indications in the legislation itself relied on by Howie J and by the accused's submissions are insufficient to suggest that it effected so radical a change in the law as that which is involved in the accused's construction of s 128(8).
The Australian Law Reform Commission. The Australian Law Reform Commission published two reports on evidence – an Interim Report ("ALRC 26") in 1985 and a Report ("ALRC 38") in 1987. The latter took account of comments made by the public on the former. Both were tabled in the Parliament of the Commonwealth – the former on 21 August 1985 and the latter on 5 June 1987. In consequence, by reason of s 3(3) of the NSW Act, they may be used in the interpretation of s 128(8).
In ALRC 26 the Commission perceived difficulties in what is known as the second limb of s 1(f)(ii) of the Australian equivalents to the 1898 Act – the rule permitting the character of an accused person to be attacked in cross-examination where that accused person has attacked prosecution witnesses[59]. Its proposal for changes in the law in relation to this particular rule has resulted in s 104(4)(b) of the NSW Act. The equivalent in the NSW Act to the first limb of s 1(f)(ii) is s 104(4)(a). Corresponding to s 1(f)(i) are ss 97, 98 and 112. The equivalent to s 1(f)(iii) is s 104(6).
[59]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [411].
In oral argument counsel for the accused correctly conceded that the only provision in the NSW Act corresponding to the equivalents to s 1(e) of the 1898 Act is s 128(8). ALRC 26 did not discuss any difficulties arising out of the equivalents to s 1(e) of the 1898 Act. The origins of s 128(8) lay in the Commission's treatment of the privilege against self-incrimination. The Commission thought that anachronistic aspects of the privilege should be removed, such as the common law rule that the privilege could be claimed where there is a risk of forfeiture[60]. The result of that approach is seen in s 128(1) of the NSW Act. The Commission also considered that although the privilege against self-incrimination served useful purposes, it was capable of injuring the interests of the State in that it was capable of restricting unduly the body of evidence available to the trier of fact[61]. It found an alternative solution in what it called "a modified version of the ACT certification approach"[62]. That was a reference to s 57 of the Evidence Ordinance 1971 (ACT), now repealed, which provided in part:
[60]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [464], [852]-[862].
[61]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [853]-[854].
[62]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [861].
"(2) Where, in a proceeding, a person called as a witness or required to answer an interrogatory declines to answer a question or interrogatory under the last preceding sub-section, the court may, if it is satisfied that, in the interests of justice, the person should be compelled to answer the question or interrogatory, inform the person –
(a)that, if he answers the question or interrogatory and all other questions or interrogatories that may be put to him, the court will give him a certificate under this section; and
(b)of the effect of such a certificate.
(3) Where, in relation to a proceeding, a person has been informed by the court of the matters referred to in paragraphs (a) and (b) of the last preceding sub-section, that person is not thereafter entitled to refuse to answer a question or interrogatory put to him in that proceeding.
(4) Where, after being informed by the court of the matters referred to in paragraphs (a) and (b) of sub-section (2) of this section, a person answers all questions and interrogatories put to him in the proceeding, the court shall give to the person a certificate that his evidence in the proceeding was given under this section.
(5) Where a person is given a certificate under this section, a statement made by the person in answer to a question or interrogatory put to him in the proceeding in which that certificate was given to him is not admissible in evidence against the person in criminal proceedings other than proceedings for an offence arising out of falsity of the statement."
Similar but not identical provisions were introduced in Western Australia in 1906[63], Tasmania in 1910[64] and Queensland in 1997[65].
[63]Evidence Act 1906 (WA), ss 11-13 and 24.
[64]Evidence Act 1910 (Tas), ss 87-89.
[65]Criminal Code (Qld), s 644A, inserted by the Criminal Law Amendment Act 1997 (Qld), s 117. In a rather different field, namely, the compelling of witnesses before commissions or boards of examiners not deciding adversarial litigation, a similar idea was introduced into the Royal Commissions Act 1902 (Cth) when in 1912 it was amended by inserting s 6DD:
"A statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the Commonwealth".
The element of "modification" to which the Commission referred was a conferral on the witness of an option whether or not to accept the certificate. It was thought that that would increase the amount of evidence admitted without destroying the advantages conferred on witnesses by the privilege against self-incrimination. That view was adopted in cl 104 of the draft Bill annexed to ALRC 26 and cl 110 of the draft Bill annexed to ALRC 38. The present form of s 128, under which the witness has an option not to give the evidence under s 128(2) but a duty to give it under s 128(5), developed after 1987.
In neither ALRC 26 nor ALRC 38 does the discussion by the Commission give any support to the accused's construction of s 128(8)[66]. The only two references to the equivalents to s 1(e) of the 1898 Act in ALRC 26 expressed no dissatisfaction with them. The only aspect which is discussed in the first reference[67] is the relationship of each of them with the corresponding equivalent to s 1(f). The other reference[68] merely summarises what the equivalents say, using the words "would tend to incriminate him as to the crime charged". There is no reference in ALRC 38 to the equivalents to s 1(e).
Like techniques are common: Evidence Act 1958 (Vic), s 30; Trade Practices Act 1974 (Cth), ss 155(7) and 159; Corporations Act 2001 (Cth), s 597(12) and (12A).
[66]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [852]-[862]; Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at App C, [207]-[229]; Australian Law Reform Commission, Evidence, Report No 38, (1987), at [214]-[217].
[67]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at App C, [187].
[68]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at App C, [209].
Counsel for the accused, however, submitted that the accused's construction was supported by one part of ALRC 38 (although Howie J did not rely on it). The part in question was the last four sentences of a passage directed to cl 104(5) of the draft Bill annexed to ALRC 26, which was in the following terms[69]:
"The preceding provisions of this section do not apply in relation to evidence given by a party that tends to prove that the party did an act the doing of which is a fact in issue in the proceeding."
The passage containing the sentences on which counsel for the accused relied is as follows[70]:
"Privilege claimed by a party. The interim proposals [ie cl 104(5)] provided that the privilege was not available in relation to evidence given by a party that tended to prove that the party did an act the doing of which is a fact in issue in the proceedings. This reflects the law for criminal trials in most jurisdictions where a provision applies to the effect that a person charged and being a witness may be asked any question in cross-examination notwithstanding that it would tend to incriminate that person as to the offence charged.[[71]] The proposal, in its application to civil trials, went further than existing law. In civil trials, it appears that a party who gives evidence as a witness can claim the privilege in relation to questions directed to the facts in issue. The interim proposal treated all party witnesses in the same way, whether the accused in a criminal trial or a plaintiff/defendant in a civil trial, on the basis that, where a party chooses to give evidence, he or she should have to give complete evidence about matters directly in issue. The accused and civil parties are not, however, in the same position. If the accused has to answer questions about facts relevant to the charges, the answers will not generally expose the accused to the risk of further criminal proceedings. The contrary applies to parties giving evidence in civil proceedings – their answers could be used in subsequent criminal proceedings. The clause[[72]] should be limited to the accused."
[69]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at App A, 52.
[70]Australian Law Reform Commission, Evidence, Report No 38, (1987) at [217(a)]; (two footnotes are omitted and two added).
[71]This refers to the Australian equivalents to s 1(e) of the 1898 Act.
[72]That is, cl 104(5) of the Bill annexed to ALRC 26. This proposal was reflected in cl 110(5) of the Bill annexed to ALRC 38, which provided:
"In a criminal proceeding, the preceding provisions of this section do not apply in relation to evidence that a defendant –
(a)did an act the doing of which is a fact in issue; or
(b)had a state of mind the existence of which is a fact in issue."
The submission of counsel for the accused in relation to the last four sentences of that passage, which he put orally but not in writing, was:
"[I]f you take the converse of that, what it means is that the rationale is that you do not need to protect the accused in relation to facts in issue because they are protected by the charge, but if there are uncharged acts, they are not protected by the charge. That is an explanation for the narrowness of the provision and that is the only passage I can find that really speaks in any way to that subject."
The submission suffers the following vices.
First, it seeks to advocate a particular answer to the question: "What is the meaning of the words 'evidence that a defendant ... did an act the doing of which is a fact in issue'?" It seeks to derive that answer from a passage which did not pose the question and did not seek to answer it. The passage was directed to a different question – "Whatever the legal regime which flows from the words 'evidence that a defendant ... did an act the doing of which is a fact in issue' on their true construction, should that legal regime apply only to defendants in criminal cases, or to the parties in civil cases as well?"
Secondly, the passage quoted suggests that the Commission was trying to bring its proposal into conformity with the equivalents to s 1(e) of the 1898 Act, rather than to depart from them. The second sentence, after saying that cl 104(5) "reflects the law for criminal trials", accurately summarised that law as established in the equivalents to s 1(e). The balance of the passage argues against extending that law to civil cases. It does not seek to alter the law in criminal cases. It does not offer any explanation for why the Commission would seek to alter the law in criminal cases. Unlike some parts of s 1(f) and its equivalents, s 1(e) and its equivalents generated very little reported authority, appear to have caused no problems, were not the subject of any criticism by the Commission in ALRC 26 or ALRC 38, and were not the subject of any recorded complaint to the Commission.
Thirdly, not only is it impossible to extract from the language employed in ALRC 26 and ALRC 38 any desire to alter the regime established for criminal cases by the equivalents to s 1(e), but that language points against the existence of any such desire in the following ways.
(a)The expression employed in cl 104(5) of the Bill annexed to ALRC 26[73], "tends to prove", and the first sentence of the long passage quoted above which summarised cl 104(5), is close to the expression "tend to criminate him as to the offence charged" that is used in s 1(e) and its equivalents. The Commission in ALRC 26 had earlier employed a similar expression in summarising, accurately, the effect of the equivalents to s 1(e) of the 1898 Act[74].
(b)The Commission evidently regarded "tends to prove" as meaning the same as "tends to show". Clause 104(1) of the Bill annexed to ALRC 26 commenced: "Where a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness ...". The Commission's summary of cl 104(1) in ALRC 38 was[75]:
"It was proposed that a witness should be able to object to answering a question on the ground that the answer may tend to show that the witness has committed an offence or is liable to a civil penalty."
(c)The draft Bill annexed to ALRC 26 used the expression "may tend to prove" in cl 104(1) (corresponding with s 128(1)) and "tends to prove" in cl 104(5) (corresponding with s 128(8)). The draft Bill annexed to ALRC 38 used the expression "may tend to prove" in cl 110(1) (corresponding with s 128(1)), but used the expression "evidence that a defendant ... did an act the doing of which is a fact in issue" in cl 110(5)[76] (corresponding with s 128(8)). However, the Commission did not appear to intend any change by its use of different words in cl 110(5) from those used in cl 104(5). That is because in its notes on the clauses of the draft Bill annexed to ALRC 38, the Commission said of cl 110(5)[77]:
"Subclause (5) provides that the privilege against self-incrimination is not available in a criminal trial for questions that tend to show that the accused committed the offence for which he or she is being prosecuted."
[73]Quoted above at [64].
[74]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at App C [209].
[75]Australian Law Reform Commission, Evidence, Report No 38, (1987) at [214].
[76]Set out above at fn 72.
[77]Australian Law Reform Commission, Evidence, Report No 38, (1987) at App A [295].
Of course, it is not the questions which tend to show anything, only the answers. But it is clear that what the Commission meant was that the expression "evidence that a defendant ... did an act the doing of which is a fact in issue" in cl 110(5) means evidence that "[tends] to show that the accused committed the offence" charged. These passages confirm that the Commission did not intend cl 110(5) to have a different meaning from the equivalents to s 1(e) of the 1898 Act.
Counsel for the accused conceded that evidence of conversations about retailing cocaine in New South Wales "tends to prove" that the speakers were conspiring to import it into New South Wales. If so, the evidence obviously "tends to show" a conspiracy to import as well. Counsel for the accused also accepted that if the accused's construction of s 128(8) were sound, a revolutionary change in the law contained in the equivalents to s 1(e) of the 1898 Act had been effected by s 128(8), and that the Commission had given no explanation for this change. Counsel for the accused simply submitted that, in fact, the Commission, in the Bill annexed to ALRC 38, and the legislature had been "very explicit in using different words".
One problem is that the Commission did not see the different words as having a different meaning. Another problem is that the Commission was normally careful to indicate when it thought that its proposals would change the law significantly and, when it did so, it habitually strove to give very full justifications for making changes of that kind. The likelihood of this practice being followed would have been extremely high in relation to any intention to change the long established and widespread statutory regime to be found in the equivalents to s 1(e) of the 1898 Act, which itself had a long and controversial background of which the Commission is likely to have been aware. If the accused's construction of s 128(8) were sound, its substitution for any provision equivalent to s 1(e) would have changed the law significantly. The absence of any justificatory material of this kind in the ALRC Reports – or in the Report of the New South Wales Law Reform Commission in 1988[78], or in the Second Reading Speeches – tells powerfully against the accused's construction.
[78]New South Wales Law Reform Commission, Evidence, Report No 56, (1988) at [2.38] ("NSWLRC 56"). It concurred with cl 110 of the draft Bill annexed to ALRC 38, but for an addition which is immaterial for present purposes.
Howie J's reasoning. Howie J gave three reasons[79] for adopting the construction he did. They were supported by the accused in this Court.
[79]Apart from his plain opinion that the outcome of his construction was just: "The accused should be able to put forward his defence to that [importation conspiracy] charge without putting himself at risk of being prosecuted for other serious criminal activity" (R v Cornwell [2003] NSWSC 660 at [17] (emphasis added)).
The first was that ALRC 26 said[80]:
"The expression 'fact in issue' should be interpreted as referring to the issues in the proceedings defined by substantive law and pleadings and thus would extend to facts to be proved in undefended or ex parte proceedings."[81]
[80]Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 at [641], n 3.
[81]R v Cornwell [2003] NSWSC 660 at [7].
Howie J's second reason was related to s 94 of the NSW Act. Section 94 is the first section in Pt 3.6, which deals with tendency and coincidence evidence. In particular, s 94(3) provides:
"This Part does not apply to evidence of:
(a)the character, reputation or conduct of a person, or
(b)a tendency that a person has or had,
if that character, reputation, conduct or tendency is a fact in issue."
It is a precondition to the admission of both tendency evidence (s 97(1)(a)) and coincidence evidence (s 98(1)(a)) that the parties intending to adduce the evidence have given reasonable notice in writing to the other parties of that intention. Howie J said[82]:
"In order to determine whether Part 3.6 applies, and whether the tendency rule and the coincidence rule have any application, it is necessary to know whether the character, reputation, conduct or tendency of a person is a fact in issue in the proceedings. Because it is necessary for the party wishing to tender evidence falling within the tendency or coincidence rules to give reasonable notice of its intention to do so, there must be some understanding of what will be a fact in issue in advance of the proceedings. The question whether the Part applies and, therefore, the rules operate to exclude otherwise relevant evidence cannot depend upon the manner in which the proceedings are conducted by the parties."
[82]R v Cornwell [2003] NSWSC 660 at [11].
The third reason given by Howie J centred on a passage in Smith v The Queen in the following terms[83]:
"In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which [the NSW Act] applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding."
Howie J then said that the reference to the "ultimate issues" was a "reference to the facts in issue for the purposes of" the NSW Act[84].
[83](2001) 206 CLR 650 at 654 [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ (footnote omitted).
[84]R v Cornwell [2003] NSWSC 660 at [13].
The joint reasons conclude that the second trial was "not a 'proceeding' to which s 128(7) applied"[203]. The Court of Criminal Appeal had rejected that contention[204]. In my opinion, it was correct to do so.
[203]Joint reasons at [87].
[204](2006) 160 A Crim R 243 at 261 [89]-[90].
A second "proceeding": My reasons for reaching this conclusion are similar to those expressed by the Court of Criminal Appeal. They follow from the approach to the interpretation of the NSW Act explained above.
The joint reasons proffer various grounds of policy why the re‑tender of the evidence already tendered in a first trial should be available without hindrance in a second trial of the same charge[205]. It is true that there are arguments why the law should be so expressed. A recent review of the NSW Act (and its other Australian counterparts) has led to a proposal that s 128(7) of the Act should be amended to make it plain that a "proceeding" under the sub-section does not include a retrial for the same offence or an offence arising out of the same circumstances[206]. This conclusion of the three law reform bodies that studied the problem was expressed before the decision of the Court of Criminal Appeal was given in these proceedings. Necessarily, it was based on the opinion that the Act, as here applicable, did not so provide or, at least, did not appear to do so.
[205]Joint reasons at [87]-[88].
[206]Uniform Evidence Law, at 534.
That was a legally correct opinion. The interpretation of s 128(7) of the NSW Act now adopted by the joint reasons is inconsistent with the language in which s 128(7) of the NSW Act is expressed and with its purpose:
.The language of s 128(7) applies the prohibition on the use of the subject evidence given by a person who is the recipient of a certificate in "any proceeding". The use of the word "any" as an adjective connotes an application of the provision to a number of instances, no matter how many or how much. This is the natural meaning of the word "any" in the context. It imports a universal and unlimited application to the subject described;
.The subject of s 128(7) is a "proceeding in a NSW court". It defies the ordinary meaning of that expression to suggest that the second trial of the accused was not such a "proceeding". It had all of the appearances of a "proceeding". It was certainly a trial "in a NSW court". It was one of "any" such "proceeding" because retrials are not at all unknown. Obviously, a new trial is a species of legal "proceeding".
.The interpretation suggested in the joint reasons requires glossing the language of the NSW Act, in effect to add a qualification such as "in any proceeding other than a retrial or the proceeding in which a certificate was given". There is no reason to read such a rider into the NSW Act because Parliament did not put it there;
.Section 128(7) contains in its concluding sentence a qualification expressly limiting its application to a defined criminal proceeding. Had a further such qualification for retrials been intended it would, by inference, also have been expressly so stated;
.Moreover, the general object of s 128(7) is protective of the person who has given the evidence in question. It is designed to defend that person from the adverse use of evidence that he or she had been earlier "required" to give by direction of the court;
.Although the joint reasons are dismissive of the significance of the "certificate"[207] granted under s 128, their approach overlooks the serious step involved in the judicial requirement to give evidence (but under conditions of protection signified by the certificate). Having regard to these features of s 128, the extension of the protection afforded in a criminal proceeding to a defendant who has received such a certificate is far from surprising. On the contrary, the formality of certification obliges the judge concerned to express any such certificate and to address carefully whether to "require" the witness to give the evidence and, if so, in what terms; and
.The interpretation urged by the accused, adopted on this point by Blackmore DCJ and affirmed by the Court of Criminal Appeal, tends to ensure the continuing availability to the defendant in any later criminal proceedings (even where a retrial is had) of evidence extracted by judicial requirement despite reasonable grounds for an objection based on self‑incrimination but it does so under conditions fair to an accused.
[207]Joint reasons at [91]-[92].
Conclusion: no error: The foregoing are reasons why the language of s 128(7) is intractable. As the Court of Criminal Appeal concluded, that language demonstrates the universal application of a certificate to all other and later proceedings (including a retrial). If a narrower application is desired, the amendment suggested by the three law reform bodies that reviewed the current statutory language would first have to be enacted. In the performance of its judicial function, this Court is not entitled to ignore, or re-express, the statutory text adopted by Parliament.
The belated challenge to certification
The issue stated: The third contested issue is whether, although it brought no interlocutory appeal against Howie J's grant of a certificate to the accused, it was open to the prosecution, in the retrial, to challenge the certificate granted by Howie J.
The conclusion expressed by Howie J, in terms of s 128 of the NSW Act, given on 5 May 2003, read as follows[208]:
"[I]t is my present opinion that, if Cornwell refuses to answer questions about his involvement in the ongoing supply of drugs on the grounds that it might incriminate him, he is entitled to take that stance, but in the interests of justice I would require him to answer the questions and grant him a certificate in accordance with the section."
[208][2003] NSWSC 660 at [27].
In the outcome, no documentary certificate was physically issued during the first trial, a fact discovered only after the second trial had commenced[209]. It was then that Howie J, over the objection of the prosecution, issued a form of documentary certificate that fulfilled, and evidenced, the course contemplated by his earlier reasons[210]:
"This Court certifies under section 128 of the Evidence Act 1995 of New South Wales that evidence in these proceedings by Richard Bruce Cornwall [sic] on 5 May 2003, 6 May 2003, 7 May 2003, 8 May 2003, 9 May 2003 and 12 May 2003 in relation to Richard Bruce Cornwall's [sic] involvement with Juan [Diez], John Lawrence and other person in the supply or trafficking in narcotic goods between the 1st January and 10th August 2001 is evidence to which section 128(7) of that Act applies."
[209](2006) 160 A Crim R 243 at 258 [73].
[210](2006) 160 A Crim R 243 at 258 [73]. See also at [74]‑[78].
Despite reservations about the relevance of the "certificate" to the second trial, expressed by Howie J[211], his Honour did not refuse the documentary certificate on that, or on any other, ground (such as delay in seeking it or that the original grant had been misconceived). On the contrary, Howie J concluded that the earlier failure of the accused's representatives to procure the documentary certificate in a timely fashion did not operate as a reason for refusing to issue a form of certificate nunc pro tunc[212]:
"I cannot see how I could refuse to give a certificate to an accused by reason of events that have occurred after the accused was told that he must answer the questions asked but that a certificate would be issued in respect of those answers. Where a witness, including an accused, has been required to answer a question notwithstanding that a valid objection has been taken on the grounds of privilege against self-incrimination, the witness is entitled to have the certificate given to him. Section 128 is mandatory in that if the witness gives evidence under s 128(2) or is required to give evidence under s 128(5) the court 'is to cause the witness to be given a certificate under the section in respect of the evidence'. The issuing of the certificate is a purely administrative step and the court has no discretion in respect of the matter."
[211](2006) 160 A Crim R 243 at 258‑259 [75]‑[78]. See joint reasons at [87]‑[88].
[212](2006) 160 A Crim R 243 at 259 [77].
This was a correct description of the evidentiary step that Howie J was belatedly asked to take. What was important was the ruling that his Honour had made during the course of the accused's first trial. Effectively, and in law, the statutory "certificate" was granted by him at that time, because it had to be. The provision of documentary evidence of the certificate did no more than formalise and evidence the administrative step that had already been taken. It expressed the ambit of the protection afforded to the accused in the precise terms that had been foreshadowed in Howie J's published reasons for granting the certificate in the first place. There is no invalidity in such formalisation; nor is there any disharmony between the documentary "certificate" published by Howie J and the statutory certificate granted in his earlier ruling.
Like the joint reasons, I can pass by the technical question as to whether any appeal was open to the prosecution against the "certificate" at the time it was announced during the accused's first trial or later when it was formalised by Howie J following the commencement of the second trial[213]. Although I do not share the view that the "certificate had no intrinsic importance"[214] (because of my opinion that the statutory formality required indicates a significant alteration in the legal rights of the parties), what was ultimately important was the ruling that Howie J made when he initially granted the certificate and the course that was then taken by the accused, and the first trial, on the faith of that step.
[213]Joint reasons at [91]‑[92]; cf (2006) 160 A Crim R 243 at 262 [95]-[101].
[214]Joint reasons at [91].
The second trial was bound: Blackmore DCJ decided that he was not bound by Howie J's ruling under s 128(5) of the NSW Act, nor by the certificate granted by Howie J under s 128(7). The joint reasons support Blackmore DCJ in these conclusions. Their support derives from the view that his Honour adopted concerning the ambit of s 128(8)[215]. For several reasons, it is my opinion that Blackmore DCJ erred in the course that he adopted and in the conclusion that he expressed:
[215]Joint reasons at [93]‑[94].
.The ruling made by Howie J in the accused's first trial was one lawfully made in the conduct of a trial, the circumstances of which had not relevantly changed when the second trial began before Blackmore DCJ. With respect, one would ordinarily expect that a single judge of equal or inferior rank in the judicial hierarchy would follow that ruling in any retrial, if only out of comity, leaving it to a court of criminal appeal to correct it later if it were challenged, either in an interlocutory appeal by the prosecution or in any final appeal following completion of the trial;
.Especially is this so, given the preliminary conclusion that Blackmore DCJ had reached (correctly in my view) that the "proceeding" before him and the new jury, involving a fresh indictment with different named parties (some of the original defendants having been convicted by the first jury), was a different "proceeding" within s 128(7), thereby attracting legal consequences for the "certificate" granted in the first trial by Howie J and formalised by that judge whilst the second trial was proceeding;
.Most importantly, it was only after the grant of the certificate by Howie J in the first trial, and his Honour's signification that he "required" the accused to give evidence of his "domestic dealings" in illegal drugs, that the accused embarked on his detailed evidence concerning his drug dealings with Mr Diez and Mr Lawrence, evidence which (save for the protection of the certificate) heavily inculpated the accused in serious but local domestic offences of drug trafficking; and
.The course therefore adopted by Blackmore DCJ treated Howie J's "certificate" as immaterial, despite the fact that it was only after Howie J had determined that a certificate would be granted that the accused gave such evidence and although that certificate then, and to this time, had never been quashed or set aside. As the Court of Criminal Appeal observed[216]:
"If that certificate could now be quashed, not only could the evidence be tendered at a retrial of the original charge but also would be available to the Crown to tender against him at a separate trial on the 'domestic' charges. This could result in significant injustice."
[216](2006) 160 A Crim R 243 at 262 [100].
These were strong reasons of legal principle and elementary justice that should have restrained Blackmore DCJ from giving effect to any different opinion that he might have felt concerning the construction of s 128(7) and (8) of the NSW Act. They provide "overwhelming discretionary reasons" to decline the prosecution's attempt, after the course that unfolded during the second trial, retrospectively to reopen the correctness of Howie J's ruling and effectively to "quash" the "certificate" that he had granted although doing so in a lower court without the requisite authority to make an order to that effect[217].
[217](2006) 160 A Crim R 243 at 262 [100].
Conclusion: no error: No error has been shown in the conclusion of the Court of Criminal Appeal on this issue. With respect, the error lay in the decision of Blackmore DCJ. For the reasons earlier stated, his Honour misconstrued s 128(7) and (8) of the NSW Act. And even if his opinion as to the meaning of those sub-sections had been correct, he ought not to have given effect to it whilst Howie J's certificate remained in force. Specifically, he ought not to have treated the ruling and certificate by Howie J as if they had never occurred, were immaterial and could effectively be ignored by him in the retrial.
The procedural unfairness of the course adopted
The issue stated: The final issue in contest is whether, even if Blackmore DCJ's interpretation of s 128(7) and (8) were legally correct, the earlier provision by Howie J of his ruling and the grant of a certificate under s 128 of the NSW Act rendered the second trial unfair, in the use that was then permitted of the evidence that had been given subject to the ruling and certificate that Howie J had announced.
The proceedings were unfair: It follows from what I have said that the premise for this last issue does not arise in the construction of s 128 that I favour. Alike with the Court of Criminal Appeal, I would conclude that the original approach of Howie J, his ruling and grant of the certificate under s 128 in the first trial, were entirely correct. Blackmore DCJ erred in law in reaching, and giving effect to, the opposite conclusion.
Nevertheless, assuming for the moment that I am wrong in the view I have taken of s 128(7) and (8), the position reached was clearly seriously unjust to the accused. It resulted in an unfair trial. A judge of a superior and constitutional court (the Supreme Court of a State of the Commonwealth) had made a ruling which was announced in open court with the reasons for it duly published. The ruling was made in response to prior discussion between the judge and the parties and the submissions of the parties. The judge had granted a certificate provided by statute carrying important legal consequences.
The prosecutor initially declined to assist Howie J, contenting himself by asking that a certificate not be given at all at the stage at which it was sought. Following submissions from the accused and in response to further questions from Howie J concerning s 128(5) and (6) of the Act, the prosecutor again declined to accept the procedure. However, he ultimately appeared to concede that, if the accused was asked whether he did "go ahead and start distributing and to whom, a question along those lines" [ie a question about his involvement in domestic drug dealings], then "he would be entitled to a certificate". It was only then that Howie J granted the accused the certificate in the terms later formalised. The prosecutor did not take up Howie J's invitation to make submissions on the "width" of the certificate. In both trials, the prosecutor relied on the accused's evidence in the prosecution case against Mr Diez and Mr Lawrence. Those defendants were convicted in the first trial. It is open to inference that the accused's evidence, the subject of the certificate, contributed to that outcome which was relevantly in "the public interest".
Against this background, and in the light of the certificate granted by Howie J, to subject the accused to a second trial in which his evidence in the first was treated as available without restriction (whether from Howie J's ruling, his certificate or otherwise) was basically unfair. Effectively, it involved a pretence that a ruling made, and certificate granted, by a Supreme Court judge had been a legal nullity although never set aside or doubted by a higher court. Moreover, it ignored the careful steps taken by the accused to give evidence pursuant to judicial direction and on the explicit understanding that such evidence could not be used "against him" in breach of the certificate concerning his involvement with Messrs Diez and Lawrence and any other person in the supply or trafficking in illegal drugs within Australia during the times indicated.
Conclusion: an unfair course: No doubt, justice is a disputable virtue. The requirement that a trial conducted in federal jurisdiction (such as this one) be conducted fairly may be constitutionally guaranteed. But whether this is so or not, a fair trial is protected by basic common law principles and by the provisions of the Criminal Appeal Act 1912 (NSW) defending convicted prisoners from miscarriages of justice.
The accused, by his own admission, was involved in serious "domestic dealings" in prohibited drugs. It would be open to a jury to conclude that his dealings, as recorded in telephonic intercepts, were facts relevant to the facts in issue in his trial on the charge of participating in a conspiracy to import drugs. But the proof of his guilt of the only charge that he faced in these proceedings had to comply with the law. It also had to comply with basic fairness in the manner in which the evidence was procured from the accused himself.
In the result of the proceeding before Blackmore DCJ, evidence earlier given upon a ruling (and thus an assumption) as to its limited availability, as defined in the ruling made and certificate granted by Howie J, was then treated as available without limitation or restriction. It was used without any protection for the accused from the self-incrimination inherent in much of that evidence.
The course adopted in the successive trials of the accused necessarily exposed him to an unfair trial. The trial miscarried because Blackmore DCJ, unlike Howie J, misunderstood and misapplied s 128(7) and (8) of the NSW Act. But even if this had not been so, the trial miscarried because evidence, given on the faith of the ruling and certificate of a Supreme Court judge, was then used contrary to that ruling and certificate. This was fundamentally unfair as the Court of Criminal Appeal correctly concluded[218].
[218](2006) 160 A Crim R 243 at 260‑262 [87]‑[94], [100], 264 [113].
Remaining immaterial issues: Whatever view this Court might take of s 128 of the NSW Act, it should not inflict such an unfairness on the accused. The arguments belatedly raised by this Court itself (concerning whether the accused "objected" to giving particular evidence[219] or did so only because he was "required" to do so by the ruling of Howie J) were never argued below. They were not grounds of appeal to this Court. They raise factual considerations that have not been explored. They could not be passed upon without added procedural unfairness to the accused[220]. The objection and requirement referred to in s 128 are legal steps in a trial. The hypothesis of high emotion or intense objection on the part of an accused, implicit in the joint reasons[221], is not part of the statutory scheme.
[219]Joint reasons at [106].
[220]Coulton v Holcombe (1986) 162 CLR 1 at 7-8.
[221]Joint reasons at [106]-[113].
No argument was advanced before this Court that the "proviso"[222] should be applied if the foregoing conclusions were reached. The Court of Criminal Appeal was correct to conclude that it should not[223]. To order a third trial is a misfortune. Impatience with the arguments of the accused is understandable, given that his defence concedes serious domestic dealings in prohibited drugs. However, that course is required by the high value placed by our law on legal accuracy in criminal trials. Moreover, the contrary conclusion distorts the meaning of a most important statute which is gradually gaining acceptance as a reformed national, uniform law of evidence.
[222]Criminal Appeal Act 1912 (NSW) s 6(1).
[223](2006) 160 A Crim R 243 at 265 [115].
Conclusions and orders
Save in respect of the complaint raised by the accused's application to cross-appeal, I would therefore confirm all of the conclusions of law, fact and discretion reached by the Court of Criminal Appeal. Substantially, I would confirm the approach taken by Howie J in the first trial as to the meaning and application of s 128 of the NSW Act. The prosecution's appeals in matters S281 of 2006 and S282 of 2006 should be dismissed[224].
[224]As pointed out in the joint reasons at [114] the DPP agreed that the disposition of the prosecution appeal in matter S 281/2006 determined the outcome of its appeal in matter S 282/2006.
For the reasons also discussed, the accused's application for special leave to cross-appeal should be granted and the cross-appeal allowed. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales should be set aside so as to permit that Court to hear and determine the accused's fifth ground of appeal in the revised grounds of appeal to that Court[225].
[225]See (2006) 160 A Crim R 243 at 245 [1].