R v Raymundo Antonio Orellana (No 2)

[2009] NSWDC 152

CITATION:	R v Raymundo Antonio Orellana (No 2) [2009] NSWDC 152
JUDGMENT DATE:	16 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Application to admit evidence is refused.
CATCHWORDS:	CRIMINAL LAW - voir dire - evidence - admissibility of alleged conversations and admissions not recorded - observations about statutory provision - meaning of "interests of justice" - meaning of "special circumstances"
LEGISLATION CITED:	Crimes Act 1914 (Cth) s 23V(1) s 23V(5) Evidence Act 1995 (Cth) s 189(3)
CASES CITED:	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
TEXTS CITED:	Macquarie Dictionary 4th Edition 2005
PARTIES:	R Raymundo Antonio Orellana
FILE NUMBER(S):	2009/11/0064
COUNSEL:	Mr G.K. Walsh (CDPP) Mr B Brassil (Def)
SOLICITORS:	Commonwealth Director of Public Prosecutions Proctor and Associates (Def)

JUDGMENT

1. This ruling which I have been asked to give turns very much, in my opinion, on my interpretation of s 23V(5) of the Crimes Act 1914 of the Commonwealth.

2. This is a case where the accused Mr Orellana arrived at Sydney Kingsford Smith Airport on 18 November 2007 with some luggage. He was questioned by Customs Officers. After some time the luggage was found to contain some 2 kilograms of cocaine. The answers he gave to some of the Customs Officers contained what the Commonwealth Director of Public Prosecutions, who prosecutes Mr Orellana, regards as confessions or admissions. Those answers Mr Walsh, who appears as counsel for the Director, wants to tender in his case against Mr Orellana.

3. The Crimes Act provides that in general terms confessions or admissions to officials need to be recorded. Section 23V(1) provides that unless such confessions or admissions are recorded they are inadmissible. The test is whether the person was being “questioned as a suspect” at the time. Mr Walsh argued that at the time of the questioning by the Customs Officers Mr Orellana was not being questioned as a suspect. For reasons which I gave last week, I concluded that he was being questioned as a suspect at the time. This had the consequence that the answers relied upon by the Crown I rejected as being inadmissible under s 23V(1) of the Crimes Act.

4. However, s 23V(5) of the Crimes Act provides for circumstances in which a court may, in its discretion, admit into evidence such confessions or admissions despite the fact that they were not recorded or that other related provisions of s 23V were not complied with. Section 23V(5) provides as follows:

“ A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.”

5. It is the interpretation of that subsection which I regard as fundamental in resolving an application which Mr Walsh has made for me to admit into evidence the alleged confessions and admissions made by Mr Orellana to the Customs Officers despite the fact that they were not recorded. Mr Brassil, who appears as counsel for Mr Orellana, opposes the application for the evidence to be admitted under subs 5. It should be said at the outset that the burden is, of course in this case, on Mr Walsh who appears for the prosecutor to convince me that I should exercise my discretion. His Honour Judge Nash acknowledged as much in R v Dos Santos (1995) 80 A Crim R 350 at 355.

6. Because I regard the construction of s 23V(5) as so important to the resolution of this application, I propose to make some observations about that provision. The subsection appears as part of s 23V and the Victorian Court of Criminal Appeal in Regina v Bina Raso (1993) 68 A Crim R 495 has made it clear that the purpose of the section is to remove controversy about what a suspect may or may not have admitted or confessed. Phillips CJ and Marks J said as much at 507.

7. That purpose is, to my mind, made very apparent by the details contained in s 23V(1)(b) of the Act. That is the clause which provides for an alternative basis of admissibility in the event that it was not reasonably practicable to tape record an admission or confession. The clause contains a number of quite specific steps which an investigating official is to take to ensure the integrity of a record of any conversation between the official and a suspect. It provides that a written record is to be made and read to the suspect who should be provided an opportunity to make corrections. It then goes on to provide that the reading itself of the written record should be tape recorded.

8. A second observation about subs 5 is this. Parliament has provided that the court may take into account matters which it regards as relevant. However, before providing for that, it specifies a pair of factors in express terms. Those factors which are expressly specified by Parliament are the “nature of and the reasons for the non-compliance” relevantly to the case. It is clear in my opinion that Parliament requires that pair of factors to be considered whereas the determination of other factors and their relevance is left to the court determining the application.

9. A third observation to be made about the provision is that a court has to be satisfied not that the admission of the evidence would be in the interests of justice, but that the admission of the evidence “would not be contrary to the interests of justice”. I am not sure, in my own mind, whether that formula requires a weighing process whereby an assessment is made of all factors relevant to the interests of justice and if factors favouring the interests of justice outweigh factors contrary to the interests of justice, then the court may reach the level of satisfaction which Parliament specifies. On balance, I am more inclined to the view that any factor which is a factor contrary to the interests of justice may alone prevent the court reaching that level of satisfaction. In those circumstances the question for the court may be: Is there any way that the admission of the evidence would be contrary to the interests of justice? That is the way that I propose to approach the interpretation of the provision.

10. The phrase “interests of justice” is one which was referred to by the President of the Court of Appeal as Kirby J then was in Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601. At 613 his Honour said:

“ The words ‘in the interests of justice’ are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit.”

My attention has been drawn to a decision of Yeldham J in Chapman v Gentle (1987) 28 A Crim R 29 where his Honour said at 32 that “the interests of justice incorporate as a paramount consideration, that an accused person should have a fair trial.” That is, in my opinion, a proposition which must be right. The proposition was stated in similar terms by Malcolm CJ in R v Mickelberg and Mickelberg (1992) 59 ACrimR 288. His Honour said at 302 that “the interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent, after he has had a fair trial.”

11. In my opinion, it is also important when construing the phrase as it appears in this provision to bear in mind the observation which I have already made that the Parliament has used the phrase “contrary to the interests of justice” rather than “in the interests of justice”. The use of the expression “interests of justice” must be understood, in my opinion, in the context of the section of the Act of Parliament of which it forms part. The purpose of that section I have already referred to. It seems to me that when a court is considering whether or not the admission of evidence would be contrary to the interests of justice, it is very important to bear in mind that the interests of justice include the provisions which Parliament has made for a reliable record to be created of any admission or confession said to be made by an accused person.

12. The next observation concerns the provision that I must be “satisfied that, in the special circumstances of the case” the evidence should be admitted, to use a shorthand. The words “special circumstances”, by themselves, as Spigelman CJ said in R v Simpson (2001) 53 NSWLR 704 at 717 ([59]), appear in numerous statutory provisions. His Honour went on to say that they are “words of indeterminate reference and will always take their colour from their surroundings.” His Honour then went on to consider the statutory context in that particular case which concerned sentencing law. His Honour went on to say at 717-718 ([60]):

“ Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulations. While certain considerations might not often be sufficiently ‘special’, so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that ‘special circumstances’ are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a ‘special circumstance’.”

Earlier, over 710 to 711 ([29)] his Honour had referred to the judgment of Samuels JA in R v Moffitt (1990) 20 NSWLR 114. That was once again a case concerning a sentencing statute which contained the phrase “special circumstances”. The Chief Justice referred to a passage in Samuel JA’s judgment at 115 to 116 where his Honour said that it is “unnecessary to attempt a comprehensive definition of ‘special circumstances’; but the general character and scope of the phrase is determined by the statutory context of both language and purpose in which it appears.”

13. Having made those observations about the phrase “special circumstances”, I note that the words are in fact contained in a more complex phrase in this section, namely “in the special circumstances of the case”. To my mind, the provision directs my attention to the particular circumstances of the case at hand. The word “special” is used in the sense of the definition contained in the fourth edition 2005 of the Macquarie Dictionary as “peculiar to a particular instance”. I do not regard the adjective “special” as requiring the circumstance to be, for example, exceptional, extraordinary or different from what is ordinary or usual. To my mind, the role of the adjective is to focus attention on the circumstances of the case at hand.

14. Returning to the observations made by the Chief Justice and by Samuels JA, it is also important to appreciate that the phrase occurs in a provision of a statute which has the purposes which I have already referred to. It should be observed that the provision, namely subs (5), already assumes that non-compliance has occurred. The provision assumes that a suspect has made a confession which is unrecorded in circumstances where, so far as this case is concerned, it was reasonably practicable to tape record the admissions or confessions. I make that observation because it seems to me that the very fact alone that the admission or confession was unrecorded would not amount to a special circumstance of the case.

15. A final observation which I make about the provision is by way of comment on a passage in R v Tang (1997) 141 FLR 338 which was a decision of the Victorian Court of Appeal. In a joint judgment at 352 the court made a general observation about Part 1C of the Crimes Act of the Commonwealth of which s 23V forms part. Their Honours said as follows:

“ The provisions are no doubt intended to protect individual rights, but the authorities make it plain that non-compliance does not necessarily mean that individual rights prevail over the legitimate demands of the public interest.”

I do not regard that observation, with respect, as helpful in the task which I am attending to now. Their Honours were considering provisions in Part 1C other than the provision which I am dealing with and their Honours were considering the common law principles which govern the admissibility of evidence which has been obtained illegally or improperly. I should add that to the extent that I may consider as another relevant matter factors relevant to the admissibility of illegally or improperly obtained evidence the remark has a general application.

16. I turn now to consider Mr Walsh’s application to admit the evidence, bearing in mind the observations which I have made about the interpretation of the section. As I said, Parliament requires me to consider the nature and reasons for the non-compliance. I have considered the evidence of the two Customs Officers, Officers Currey and Campbell, to whom the alleged confessions or admissions were made in this case. I have considered Mr Brassil’s argument that in the case of Officer Currey she was being disingenuous in the evidence which she was giving. Specifically, Mr Brassil argued that she was being disingenuous in asserting her ignorance about the requirements of recording words said by a suspect.

17. I do not accept his submission. I have reviewed the evidence which she gave. She was not, in my opinion, being evasive about a reference which she made to the number of tests which she understood had already been administered to Mr Orellana’s luggage. The position regarding both Customs Officers was, in my opinion, as Mr Walsh argued, that whether or not they were questioning Mr Orellana as a suspect at the time that they asked him questions turned out to be in the circumstances of this case quite a complex question. It was one that required some close analysis by legal practitioners and argument by counsel for and against the proposition that he was being questioned as a suspect. For reasons which I gave last week, I regarded him as being questioned as a suspect.

18. I am satisfied that, without understandably knowing the detail of the statutory provisions which govern their behaviour, both officers had a clear appreciation of the fact that their questioning of a person will at some stage require recording if it is to be admitted into evidence in any future prosecution. To my mind, both officers had reasonable grounds in their own minds for holding the opinions, at the time that they interviewed Mr Orellana, that they were not questioning him as a suspect at that stage. There were several tests being applied to the luggage to detect whether or not it contained prohibited drugs and the results which both officers were made aware of were both positive and negative.

19. As well, the process occurred over a reasonably short period of time. There was a real issue, one required to be determined by me, of just at what stage in this case a legal requirement was imposed for anything said by Mr Orellana to be recorded, if it was to be admitted into evidence in a future prosecution. There was, in my opinion, no apparent attempt to trick or deceive Mr Orellana. The nature of the non-compliance in this case was, it is admitted by the prosecution, the failure to tape record the conversation with Mr Orellana when he was being questioned as a suspect in circumstances where it was reasonably practicable to tape record the questioning.

20. The factors which I have just referred to, namely the nature of and the reasons for the non-compliance, are, as I said, the factors to which Parliament has given pre-eminence in a court applying this provision. So far as having regard to those two factors alone, I do not see anything in them which would prompt me to think that the procedure was itself contrary to the interests of justice. However, the question that I have to consider by reference to the nature and reasons for the non-compliance - and any other relevant factors - is whether I am satisfied that the admission of the evidence would not be contrary to the interests of justice.

21. In arguing his case, both in writing and orally, Mr Walsh was, it seems for good reason, under the impression that there was no challenge to the accuracy of the conversations between Mr Orellana and the Customs Officers. No challenge had been made at the committal proceedings, nor was any challenge made in the voir dire before me. When I questioned Mr Brassil about that, he acknowledged that it had not and explained the non-challenge by reference to s 189(3) of the Evidence Act 1995. He argued that the truthfulness of any alleged admission was not to be raised by him. That position, with respect, in my opinion, is misconceived. To put to the Customs Officers that the conversations did not occur at all or were different to what they asserted, does not raise an issue about the truth or otherwise of what is alleged to have been said by Mr Orellana to the Customs Officers. They are two distinct questions.

22. Accordingly, when the evidence was closed, or almost closed, I asked Mr Brassil what his position was so far as the impugned conversations were concerned. He took specific instructions in circumstances which, although not completely desirable, were satisfactory so far as obtaining instructions were concerned, and advised me that his case was as follows. The entirety of the conversation alleged by Officer Campbell to have occurred is denied by the accused. None of that, Mr Brassil said on behalf of his client, took place at all. In so far as the conversation with Officer Currey was concerned, Mr Brassil said his instructions were that some questions were asked and some answers provided and the rest was a fabrication. This position so far as the accused’s case is concerned is very significant, in my opinion, in the resolution of this application.

23. As I have said, I need to have regard to the fact that my satisfaction that in the special circumstances of this case the admission of the evidence “would not be contrary to the interests of justice”, must be reached in the context of the provision which I am applying. For reasons that I have said, Parliament has made it abundantly clear that every effort is to be made to secure an accurate and in some ways independent account of any confession or admission made by a suspect to a Customs Officer. As the Victorian Court of Criminal Appeal said in R v Raso, the object is to “remove controversy about what a suspect may or may not have admitted or confessed.” Were it the case in this case that the words said to have been uttered by Mr Orellana were not challenged, but he wanted to object to their admissibility in any event, then I think I would be inclined to admit the evidence.

24. The interests of justice, as I have said, include the interest that a person should have a fair trial. Parliament has legislated, it seems to me, clearly by s 23V of the Crimes Act that a fair trial should include a record of any confession or admission made by the accused which is in some ways independently verifiable. That, in my opinion, does not exist in this case. To their credit, each of the Customs Officers made a contemporaneous record of what they allege Mr Orellana said to them. But that record has not been adopted by Mr Orellana in any way which is independently verifiable. Mr Orellana, therefore, finds himself in the position where there is being tendered against him allegations that he made a certain confession or admission which he denies making in circumstances where there was no independently verifiable evidence of that confession or admission. That is just the circumstance, it seems to me, which Parliament was at pains to avoid by enacting s 23V.

25. I can appreciate that in the broader sense the interests of justice would be in some respects served by the evidence being admitted. Some of the factors were referred to by Mr Walsh. Mr Orellana is facing a most serious crime. It is regarded as so serious that it carries the ultimate penalty of life imprisonment. The interests of justice are served by securing relevant testimony as Mason P said in Witness v Marsden (2000) 49 NSWLR 429 at 431 ([3]).

26. However, as I interpret this provision the question for me, in my opinion, is whether there is any way that the admission of evidence would be contrary to the interests of justice. It would, in my opinion, be contrary to the interests of justice for the reasons that I have given. I am therefore not satisfied in the special circumstances of this case that the admission would not be contrary to the interests of justice and I refuse the application to admit the evidence.

**********