Citation: R v Raymundo Antonio Orellana (No 3) [2009] NSWDC 199
Court: District Court of New South Wales
Date: 20 July 2009
Judge(s): Cogswell SC DCJ
Background
The accused faced a charge of importing a commercial quantity of a border controlled drug, alleged to be cocaine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The offence was alleged to have occurred on 18 November 2007 when the accused arrived at Sydney Kingsford Smith Airport and came to the attention of Customs Officers and then the Australian Federal Police (AFP).
The AFP conducted a recorded interview with the accused commencing at 6:50 pm on the day of his arrest. Because the accused's first language is Spanish, an accredited Spanish interpreter participated by telephone on loudspeaker throughout the interview. The prosecution sought to tender a portion of that record of interview containing admissions said to be relevant to the fault element of the offence.
Defence counsel objected to the tender on multiple grounds under the Evidence Act 1995 (NSW), arguing that the admissions were inadmissible or should be excluded in the exercise of the court's discretion.
Legal Issues
- Whether the AFP breached s 23G of the Crimes Act 1914 (Cth) by failing to defer questioning for a reasonable time to allow the accused to contact a lawyer and a friend before the interview commenced.
- Whether the accused adequately comprehended the caution administered before the interview.
- Whether the admissions should be excluded under ss 84, 89, 90, 135 or 138 of the Evidence Act 1995 (NSW) on the grounds that they were obtained improperly or in contravention of an Australian law.
- Whether the court should exercise its discretion to exclude the evidence having regard to the probative value of the admissions and the circumstances of their obtaining.
Decision
Cogswell SC DCJ conducted a voir dire, including close observation of the video recording of the entire interview. His Honour made detailed factual findings about the accused's demeanour throughout, noting that at the critical time when the tendered questions and answers occurred (around 20:30 on the video timestamp), the accused appeared animated, was using gestures, and showed no obvious signs of tiredness or overextension.
On the s 23G question, the court found that the AFP had not breached the provision. The delay between the accused's initial contact with police at the airport and the commencement of the interview was explained by the need for police to manage the situation at the airport: securing the accused's property, identifying the person he wished to contact, and arranging appropriate interview facilities. The opportunity to contact both a lawyer and his friend James Lopez was offered at the commencement of the interview itself.
The court also rejected the argument that the accused had failed to understand the caution administered to him. The use of an accredited interpreter and the observed demeanour of the accused did not support a finding that comprehension was lacking.
Even if those conclusions were wrong, his Honour stated he would have exercised the discretion under s 138 to admit the evidence in any event. The probative value of the admissions was described as significant because the accused had referred to suspicions, which was relevant to the recklessness limb of the fault element. The offence carried a maximum penalty of life imprisonment, and any contravention, if established, would not have been grave, deliberate, or reckless in the circumstances faced by officers at an international airport.
Orders Made
The evidence tendered by the prosecution was ruled admissible.
Key Takeaways
- The District Court confirmed that s 23G of the Crimes Act 1914 (Cth) requires police to inform an arrested person of their right to contact a lawyer and a friend, and to defer questioning for a reasonable time to allow that contact, but that the opportunity may be offered at the commencement of a formal interview rather than at the precise moment of initial contact where operational circumstances at the time of arrest justify the delay.
- A delay between initial police contact and the commencement of a formal record of interview does not automatically constitute a breach of s 23G; the surrounding circumstances, including the practical demands on investigating officers, are relevant to whether any deferral was for a "reasonable time."
- Under s 138 of the Evidence Act 1995 (NSW), even where a technical contravention of an investigative obligation is established, a court may still admit the evidence if the probative value is significant and the contravention was neither grave nor deliberate.
- Where an accused's demeanour throughout a video-recorded interview is closely observed on a voir dire, that observation can form part of the evidentiary basis for rejecting claims of overextension, fatigue, or failure to comprehend a caution.
- Admissions relevant to the recklessness limb of a fault element, as opposed to actual knowledge, retain significant probative value sufficient to weigh in favour of admission under a s 138 balancing exercise.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth) s 307.1
- Crimes Act 1914 (Cth) ss 23G, 23L
- Evidence Act 1995 (NSW) ss 84, 89, 90, 135, 138, 189
Cases
- R v Moffatt (2000) 112 A Crim R 201
- Regina v Plevac (1995) 84 A Crim R 570
- Regina v Quach (2002) 137 A Crim R 345