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District Court 16 July 2009

R v Raymundo Antonio Orellana (No 2)

[2009] NSWDC 152

Drugs
CRIMINAL LAW VOIR DIRE EVIDENCE OBSERVATIONS ABOUT STATUTORY PROVISION MEANING OF "INTERESTS OF JUSTICE" MEANING OF "SPECIAL CIRCUMSTANCES"

Citation: R v Raymundo Antonio Orellana (No 2) [2009] NSWDC 152
Court: District Court of New South Wales
Date: 16 July 2009
Judge(s): Cogswell SC DCJ

Background

The accused arrived at Sydney Kingsford Smith Airport in November 2007 carrying luggage found to contain approximately two kilograms of cocaine. During questioning by Customs Officers before the drugs were discovered, he made statements that the prosecution characterised as admissions or confessions.

The prosecution sought to tender those statements at trial. In an earlier ruling, the court found that the accused had been questioned as a suspect at the time, which triggered the recording requirements under s 23V(1) of the Crimes Act 1914 (Cth). Because the conversations were not recorded in the manner the provision requires, the statements were prima facie inadmissible.

The prosecution then applied under s 23V(5) for the court to exercise its discretion to admit the unrecorded statements despite that non-compliance. The accused opposed the application. This ruling resolved that application.

  • Whether the prosecution had discharged the burden of satisfying the court that the unrecorded admissions should be admitted under the discretionary gateway in s 23V(5) of the Crimes Act 1914 (Cth)
  • What the phrase "contrary to the interests of justice" means in s 23V(5), and whether any single countervailing factor suffices to block admission
  • What "special circumstances" requires in this context
  • Whether the absence of an independently verifiable record of the alleged admissions, in circumstances where the accused denied making them, engaged the interests of justice so as to prevent admission

Decision

The court began with the purpose of s 23V, drawing on the Victorian Court of Criminal Appeal's analysis in Regina v Bina Raso: the section exists to remove controversy about what a suspect may or may not have admitted. Parliament's detailed prescriptions for written records, their being read to the suspect, and the tape recording of that reading all reflected a clear legislative intention that confessions and admissions be independently verifiable.

On the proper interpretation of the phrase "not contrary to the interests of justice," the court preferred a construction under which any single factor that would make admission contrary to the interests of justice is sufficient to prevent the court reaching the required level of satisfaction. The court expressly declined to adopt a simple balancing approach in which pro-justice factors could outweigh anti-justice factors.

The court accepted that the interests of justice broadly include securing relevant evidence in serious criminal proceedings, particularly given that the charge carried a maximum penalty of life imprisonment. However, it found that the interests of justice also encompass the right of an accused to a fair trial, which Parliament had legislated to protect through the recording regime. The accused was in the position of having unrecorded allegations of admission tendered against him, which he denied, in circumstances where no independently verifiable record existed. That was precisely the mischief s 23V was enacted to prevent.

Applying its interpretation of s 23V(5), the court concluded that admission would be contrary to the interests of justice and refused the application.

Orders Made

  • The application to admit the evidence was refused.

Key Takeaways

  • The District Court held that the burden of satisfying s 23V(5) of the Crimes Act 1914 (Cth) rests on the party seeking admission of unrecorded admissions, not on the party opposing it.
  • Under s 23V(5), the statutory formula asks whether admission "would not be contrary to the interests of justice," rather than whether it would be positively in the interests of justice. The court reasoned that a single factor making admission contrary to the interests of justice may be sufficient to defeat the application, without the need for a broader balancing exercise.
  • The "interests of justice" in s 23V(5) are informed by the legislative purpose of the section itself: Parliament's intent that admissions and confessions be recorded in an independently verifiable form forms part of the justice interests the provision protects.
  • Where an accused denies making the alleged admissions and no independently verifiable record exists, the accused faces a significant forensic disadvantage that engages the fair trial dimension of the interests of justice, and may alone justify refusal of admission.
  • The court noted, obiter, that had the accused not disputed the content of the alleged admissions and merely objected to their admissibility, the discretion under s 23V(5) might well have been exercised in favour of admission.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 23V(1), 23V(5)
- Evidence Act 1995 (Cth), s 189(3)

Cases
- Chapman v Gentle (1987) 28 A Crim R 29
- Herron v The Attorney-General for New South Wales (1987) 8 NSWLR 601
- Regina v Bina Raso (1993) 68 A Crim R 495
- R v Dos Santos (1995) 80 A Crim R 350
- R v Mickelberg and Mickelberg (1992) 59 A Crim R 288
- R v Moffitt (1990) 20 NSWLR 114
- R v Simpson (2001) 53 NSWLR 704
- R v Tang (1997) 141 FLR 388
- Witness v Marsden (2000) 49 NSWLR 429