R v Raymundo Antonio Orellana

[2009] NSWDC 151

CITATION:	R v Raymundo Antonio Orellana [2009] NSWDC 151
JUDGMENT DATE:	9 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The tender of both conversations is inadmissible under s 23V(1) of Crimes Act 1914.
CATCHWORDS:	CRIMINAL LAW - voir dire - admissibility of evidence of admissions or confessions - meaning of 'questioned as a suspect'
LEGISLATION CITED:	Crimes Act 1914 (Cth) s 23V(1) Customs Act 1901
CASES CITED:	George v Rockett (1990) 170 CLR 104 Hussein v Chong Fook Kam [1970] AC 942 Regina v Bina Raso (1993) 68 A Crim R 495
PARTIES:	R Raymundo Antonio Orellana
FILE NUMBER(S):	2009/11/0664
COUNSEL:	Mr G.K. Walsh (CDPP) Mr B. Brassil (Def)
SOLICITORS:	Commonwealth Director of Public Prosecutions Proctor and Associates (Def)

JUDGMENT

1. As one would expect, Customs Officers have the power to question passengers arriving in Australia about goods in their possession. The officers need to find out if the goods might attract duties or excise, or indeed be prohibited goods, such as illegal drugs.

2. What is also not surprising these days is that if someone admits to an official some wrongdoing, such as confessing to a crime, then what they say cannot be used against them in court, unless there is some independent and reliable record of what was said to the official. However, if the official does not expect an admission, such as in an informal conversation or volunteered information, then the requirements for an independent and reliable record may be relaxed.

3. This case concerns the point at which a Customs Officer, as a questioning official, moves from questioning an arriving passenger under their general powers to questioning the passenger about a crime. That is an important point, because what is said by the passenger beforehand, even if damaging, may be used against them, because it was volunteered or unexpected. However, after that point any damaging admissions cannot be used unless they are appropriately recorded.

4. The importance of this point of transition is recognised by the Crimes Act 1914 of the Commonwealth. Section 23V(1) provides a test for the point of transition. It is only when a person is being “questioned as a suspect” that any admissions or confessions will not be admissible against them, unless they are recorded.

5. In this case, Mr Orellana arrived at Sydney Kingsford Smith Airport on 18 November 2007. He was questioned by a number of Customs Officers before it was eventually discovered that his baggage contained a commercial quantity of cocaine, being an illegal drug. In conversations with two of those officials, Mr Orellana said things which the prosecution now wishes to tender against him in these proceedings, which are due to commence next Monday before a jury. In these proceedings, Mr Orellana is being prosecuted for the offence of importing a border-controlled drug, being a commercial quantity.

6. The things said by Mr Orellana in response to the questioning by the two officials were not recorded in the way required by the Crimes Act. Mr Brassil of counsel, who appears for Mr Orellana, says that in those two conversations his client was being “questioned as a suspect”, so that the conversations are inadmissible since they were not recorded in accordance with the Act. Mr Walsh of counsel, who appears for the Commonwealth Director of Public Prosecutions, says that the point of transition had not been reached where Mr Orellana was being “questioned as a suspect”, so that what he said can be used against him without a record of the conversations.

7. It has been helpful to refer to a number of authorities on the meaning of words and the interpretation of this provision of the Crimes Act. Regina v Bina Raso (1993) 68 A Crim R 495 was a decision of the Victorian Court of Criminal Appeal. In a joint judgment delivered by Phillips CJ and Marks J, their Honours made the following observation at 507 about the purpose of section 23V(1) of the Crimes Act:

“ The section is aimed to remove controversy about what a suspect may or may not have admitted or confessed .”

8. In this case, the meaning of the noun “suspect” and its derivatives will become relevant. Also of relevance - because of some of the evidence that was given - will be to contrast the meaning of “believe” and its derivatives. Those two words were the subject of consideration by the Full Court of the High Court in George v Rockett (1990) 170 CLR 104. The Full Court delivered a joint judgment. Adopting what was said by Lord Devlin in the House of Lords in Hussein v Chong Fook Kam [1970] AC 942 at 948, the Justices of the High Court said that suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking”. Their Honours adopted the illustration given by Lord Devlin in the short sentence: “I suspect, but I cannot prove.” The Justices of the High Court went on to say that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion may be shown.”

9. Their Honours referred with approval to remarks made by Kitto J in Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266. Their Honours extracted a passage from Kitto J’s judgment which appeared at 303, where his Honour said that a suspicion “is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’.” Kitto J had quoted from the Chambers Dictionary.

10. In George v Rockett at 116 of the joint judgment, their Honours set out their views on the meaning of the contrasting word, saying as follows:

“Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture .”

11. Returning to the Victorian Court of Criminal Appeal’s judgment in Raso, I have derived considerable assistance from the judgment delivered by Ormiston J. His Honour agreed with the disposal of the case, but in a judgment of his separate reasons, gave considered and helpful attention to the operation of s 23V(1)of the Crimes Act. In so far as that section uses the verb “suspect”, Ormiston J referred to the passages in George v Rockett to which I have referred, and other authorities and then concluded at 527 that he was: “inclined to the conclusion that the word ‘suspect’ requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based upon some factual foundation.” His Honour also expressed his understanding of the use of the word, ‘suspect’ in the context in which it is used in s 23V(1). At 528 his Honour said as follows:

“ To characterise the questioning as an interview of a person ‘as a suspect’ would seem artificial unless a positive opinion had been formed as the section requires certain steps to be taken upon the basis that the person was being interviewed .”

12. I add here that the section has evidently been amended since that judgment. The present word “questioned” has obviously been inserted instead of the word “interviewed”. Counsel agree that nothing turns upon that difference.

13. Ormiston J went on to say “that there would be no purpose to the addition of the words ‘as a suspect’ in the section unless it was intended that the official should have formed some opinion based, as I have said, on a factual foundation.” In illustrating his Honour’s observations he said that unless “baggage obviously consists of or contains prohibited goods, or unless the customs officers have other information that the passenger is bringing in prohibited goods, they would not have any factual basis for forming a suspicion of the relevant kind.” At 529 his Honour repeated that “some other evidence would be required above and beyond the mere process of questioning” which a customs officer is empowered to do under the Customs Act 1901.

14. Finally so far as the authorities are concerned, Ormiston J made some remarks about the development of a suspicion on the part of a customs officer. His Honour said at 528:

“ Whereas a deliberate decision to question a suspect has been taken in the circumstances first described, in the latter circumstances the degree of suspicion may have been growing intermittently and even unconsciously throughout the questioning and may vary from one investigating official to another. ”

His Honour was contrasting circumstances where previous enquiries had disclosed a known offence with circumstances where a passenger was being subjected to routine questioning under the Customs Act.

15. Mr Orellana in this case was questioned, as I have said, by two Customs Officers on his arrival. The first to question him was customs officer Jill Currey. She questioned Mr Orellana at about 12.15pm on the day. The questions and answers given in that conversation are challenged by Mr Brassil, who asserts that she was questioning him as a suspect. The other relevant conversation was between Mr Orellana and customs officer Graeme Campbell. Mr Campbell questioned Mr Orellana sometime between 12.30pm and 1pm, at a time which counsel agree was probably around 12.45pm. That is the second conversation which Mr Brassil asserts amounted to his client being questioned as a suspect.

16. I will consider first the challenge to the conversation between Mr Orellana and Ms Currey. Mr Brassil argues that the evidence points to the conclusion that Miss Currey must have regarded Mr Orellana as a suspect when she was questioning him at the relevant time. In accordance with the remarks of Ormiston J in Raso’s case Mr Brassil says that there is a clear factual foundation for what he asks me to infer was a positive opinion formed by Officer Currey. The factual foundation comprises evidence of the following circumstances which existed at the time of the relevant questioning.

(a) Mr Orellana arrived on what was regarded by Customs Officers and was described as a targeted flight.

(b) He arrived from a port in respect of which there was also suspicion. That port was in South America. (Those two factors are obviously closely related.)

(c) She had information that the bag accompanying Mr Orellana had not been packed by him, but by his girlfriend.

(d) She had information that his girlfriend had paid for his return trip to South America and that her occupation was a hairdresser.

(e) She had information from another officer that items in the bag comprising clothing were damp, crusty and appeared to be discoloured by some sort of substance.

(f) She herself examined those items of clothing and made similar observations.

(g) She was made aware of a particular test used by Customs officials to detect illegal drugs. This test was called an IonScan and it returned a positive result for cocaine when applied to the clothing which had the appearance which I have described. She was aware of at least two positive results which had been returned.

17. Mr Walsh argues that it is important to appreciate the nature of an IonScan test. It is what is described as a trace test. It picks up traces of a prohibited drug. But what it indicates, if positive, is that the item tested may have simply come in contact or been exposed to the prohibited drug in question. It does not demonstrate that the item in question contains the prohibited drug in any measure which might be regarded as contrary to the law. As Mr Walsh argued, the test does not provide a factual foundation that there was a substance in the clothing. He points to the fact that when given that information, Officer Currey proceeded to ask Mr Orellana further questions and arranged for further testing which was described as a substance test. Mr Walsh argues that what Officer Currey did provides the best insight into her state of mind. What she did was attempt to ascertain further information both from Mr Orellana and from further tests which, in his submission, amounted to something falling short of suspicion.

18. When cross-examined about her state of mind by Mr Brassil, Officer Currey said that she “did not believe an offence being committed up until the time” that drug detector dogs were called in and reacted positively to the presence of drugs. She said that when that occurred it was the time when she should caution Mr Orellana and read him his rights. Asked specifically about her state of mind at ten past twelve, just before the questioning which is the subject of the challenge, she said that she “did not come to the belief that he had any concealment on him - I had not come to that belief”. Asked whether she would have been content for Mr Orellana to leave the passenger terminal, she frankly replied that she would not have been content until further testing.

19. In considering whether the evidence points to Officer Currey questioning Mr Orellana as a suspect, I take into account the meaning of the word suspect approved by the High Court as a state of conjecture or surmise where proof is lacking and a slight opinion but without sufficient evidence. I also take into account Ormiston J’s development of the meaning of the word suspect as it is contained in s 23V as requiring a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based upon some factual foundation.

20. There was, it seems to me, a good deal of appropriate and professional speculation on Officer Currey’s part in determining whether or not Mr Orellana might have been the carrier of a prohibited drug. It is to be borne in mind that the nature of suspicion is something which does not involve proof, certainty, conviction or belief. In my opinion, the state of mind of Officer Currey at the time that she asked her questions of Mr Orellana were such that she regarded him as a suspect and was questioning him as a suspect.

21. Clearly the nature of the questions which she asked concerned, or at least were exploring, the circumstances of him travelling to Australia from the country that he came from and why he had the clothes which were returning a positive reading on one test for cocaine. Were she questioning him based merely on the plane being a targeted flight and the fact that he did not pack the bag and his flight being paid for by somebody else then I might have regarded the questioning as mere speculation and appropriate enquiry. However, the fact that the luggage contained items of clothing which had the qualities which I have described and the fact that those items of clothing returned at least two positive results for cocaine, to my mind, provided a factual foundation beyond mere speculation to form the basis for those questions. The speculation in those circumstances, in my opinion, amounted to suspicion. I am affirmed in my view about that by the fact that she would not have been prepared to let him leave the airport at that time. That, to my mind, is consistent with a state of mind of suspicion as it related to the traces or evidence which she had of prohibited drugs being imported.

22. Because that conversation, it is common ground, was not recorded as required by Section 23V(1) of the Crimes Act I reject its tender as inadmissible under that provision.

23. I turn now to consider the second conversation tendered by Mr Walsh, namely the conversation with Customs Officer Campbell. Customs Officer Campbell was first called over by either Customs Officer Currey or one of her colleagues at about 12.30. In cross-examination, Mr Brassil asked him about his state of mind at that time when he was first called over and Mr Orellana was drawn to his attention. Officer Campbell frankly admitted that at that time suspicion in his mind attached to Mr Orellana. Mr Brassil posed the following question:

“Q And so you would say wouldn’t you, that at that moment in time when that information was conveyed to you, he was a suspect?
A. Yes.”

That is clearly, in my opinion, consistent with Officer Campbell regarding Mr Orellana at that point of time as a suspect.

24. Mr Walsh argues, however, that the relevant conversation with Officer Campbell did not occur until about a quarter of an hour later. After that quarter of an hour, Officer Campbell had knowledge of further tests. A number of narcotic tests other than the IonScan were performed between the time of Officer Campbell’s initial impression and the challenged conversation. All of those tests came back negative for cocaine.

25. Mr Walsh argues that it is very important that a distinction is made between Officer Campbell’s state of mind at the two periods. He points out, as Ormiston J observes, that a degree of suspicion may vary, not only vary from one investigating official to another, but may grow intermittently with one officer, hence a state of suspicion in one’s mind may diminish over time and this is exactly what Mr Walsh argues occurred so far as Officer Campbell was concerned.

26. With that in mind Mr Walsh questioned Officer Campbell in re-examination specifically about his state of mind just before the conversation with Mr Orellana which is challenged in these proceedings. The following pair of questions and answers are important:

“Q. Now I’m asking you if your state of mind concerning the level of risk at the time after the NARCO test has come back as negative?
A. Yes.

Q. Can you tell us what was?
A. Well, just going through a risk assessment process, we had a positive, a positive trace technology, IonScan or BioSens technology advising that there was possibly the concealment of cocaine there. There was visual marking on the clothing, but the method of testing which I thought was most reliable was returning a negative result, so I was not too sure, that’s where the doubt was. My assessment of the level risk, I believe, yes possibly we had something here, but I was not convinced because the NIK test was negative. I was still suspicious that an offence may be occurring, but I wanted something else to back up those other forms of technology.”

27. A number of observations can be made about that evidence. First it seems to me that officer Campbell was being commendably frank. Secondly, it is to be observed that the terms of reference used by him are not the same as the term of reference used by the Crimes Act which I have to apply. That is not something which I criticise officer Campbell about at all, as I observed in the course of argument. It is for me and counsel to ascertain the appropriate legal tests as part of our job and that can be attended, as this judgment illustrates, by a degree of subtlety. But the point is that Officer Campbell applied terms such as being “not too sure” and entertaining a “doubt” about the risk. He also indicated that he was “not convinced” that there was something illegal there. The third observation is that he frankly acknowledged in his evidence that he was “still suspicious that an offence may be occurring”.

28. When I apply the accepted meaning of the word “suspect” which I have already referred to, it seems first that the qualifications used by Officer Campbell expressing his reservations are not relevant to my determination and secondly it seems that he did entertain a state of mind which amounted to a state of conjecture or surmise where proof was lacking, or a slight opinion, but without sufficient evidence. But the information and knowledge which he had been given earlier about the source of Mr Orellana’s flight and the positive IonScans in my opinion provided a factual foundation for what he frankly admitted was a suspicion that an offence may be occurring.

29. In my opinion his state of mind could also be described as suspecting Mr Orellana of committing a crime at the time that he questioned Mr Orellana. Since his questions and answers were not recorded, they are not admissible under s 23V(1) of the Crimes Act and I reject the tender of that conversation as well.

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