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District Court 9 July 2009

R v Raymundo Antonio Orellana

[2009] NSWDC 151

Drugs
CRIMINAL LAW VOIR DIRE MEANING OF 'QUESTIONED AS A SUSPECT'

Citation: R v Raymundo Antonio Orellana [2009] NSWDC 151
Court: District Court of New South Wales
Date: 9 July 2009
Judge(s): Cogswell SC DCJ

Background

The accused arrived at Sydney Kingsford Smith Airport on 18 November 2007 and was questioned by several Customs Officers. During that questioning, before any formal arrest or caution, officers discovered a commercial quantity of cocaine concealed in his baggage. He was subsequently charged with importing a border-controlled drug in a commercial quantity.

During the questioning process, the accused made statements to two Customs Officers that the prosecution sought to tender as evidence at trial. Those conversations had not been recorded in the manner required by s 23V(1) of the Crimes Act 1914 (Cth).

The matter came before the court on a voir dire (a preliminary hearing to determine whether evidence is admissible) in the days before the jury trial was due to commence. The central question was whether the accused's unrecorded statements could be admitted into evidence.

  • Whether each of the two Customs Officers was "questioning [the accused] as a suspect" within the meaning of s 23V(1) of the Crimes Act 1914 (Cth) at the time the relevant conversations occurred.
  • What legal threshold the phrase "questioned as a suspect" sets, and how it differs from a mere belief that an offence has occurred.
  • Whether, in the absence of compliant recording, the conversations were admissible.

Decision

The court worked through the established meaning of "suspect" by reference to High Court authority. Drawing on George v Rockett (1990) 170 CLR 104, the court confirmed that suspicion is a state of conjecture or surmise where proof is lacking, requiring some factual foundation but falling short of belief. Suspicion does not require the officer to be convinced; it requires only a slight opinion supported by some factual basis.

The court also drew on the Victorian Court of Criminal Appeal's analysis in Regina v Bina Raso (1993) 68 A Crim R 495, particularly the separate reasons of Ormiston J. That analysis made clear that the word "suspect" in s 23V(1) requires that the questioning official has formed a positive opinion based on a factual foundation, not merely that routine questioning is underway under the Customs Act 1901.

Applying those principles, the court assessed the state of mind of each officer at the time of their respective conversations. In the case of the second officer, Officer Campbell, the court found that he had frankly acknowledged in evidence that he was "still suspicious that an offence may be occurring." Despite Officer Campbell's expressed reservations about the reliability of individual tests, the court held that the positive IonScan results and the known origin of the accused's flight provided a sufficient factual foundation for suspicion within the legal meaning of that term.

Because both conversations took place while the relevant officers were questioning the accused as a suspect, and because neither conversation was recorded in accordance with s 23V(1), the court ruled both conversations inadmissible.

Orders Made

  • The tender of both conversations was ruled inadmissible under s 23V(1) of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court confirmed that the phrase "questioned as a suspect" in s 23V(1) of the Crimes Act 1914 (Cth) requires that the questioning official has formed a positive opinion, based on some factual foundation, that an offence may be occurring. Mere speculation or the ordinary exercise of Customs questioning powers is not sufficient to trigger the provision.
  • A distinction exists between suspicion and belief: suspicion requires only a slight opinion without sufficient evidence, whereas belief requires a stronger inclination of the mind toward a proposition. An officer need not be convinced that an offence has occurred for the threshold of suspicion to be reached.
  • The officer's own choice of language in evidence is not determinative. Where an officer describes being "not too sure" or "not convinced," the court will still apply the legal definition of suspicion to the facts as disclosed, rather than treating the officer's self-characterisation as conclusive.
  • Positive trace technology results and information about a passenger's travel origin can together provide the factual foundation that elevates routine Customs questioning into questioning of a suspect under the Act.
  • Where the s 23V(1) threshold is crossed and the conversation is not properly recorded, the resulting statements are inadmissible regardless of their potential evidentiary value to the prosecution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 23V(1)
- Customs Act 1901 (Cth)

Cases
- George v Rockett (1990) 170 CLR 104 (High Court of Australia)
- Hussein v Chong Fook Kam [1970] AC 942 (House of Lords)
- Regina v Bina Raso (1993) 68 A Crim R 495 (Victorian Court of Criminal Appeal)
- Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266 (referred to via George v Rockett)