R v Raymundo Antonio Orellana (No 3)
[2009] NSWDC 199
•20 July 2009
CITATION: R v Raymundo Antonio Orellana (No 3) [2009] NSWDC 199
JUDGMENT DATE:
20 July 2009JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The evidence tendered is admissible. CATCHWORDS: CRIMINAL LAW - evidence - voir dire - admissibility of part of record of interview - whether admissions obtained improperly or in contravention of law - probative value of admission - delay between initial contact with Australian Federal Police and commencement of interview - opportunity to contact a lawyer - opportunity to contact friend - administration of caution - principles for police questioning LEGISLATION CITED: Crimes Act 1914 (Cth) s 23G, s 23L
Criminal Code Act 1995 (Cth) s 307.1
Evidence Act 1995 s 84, s 89, s 90, s 135, s 138, s 189CASES CITED: 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 345PARTIES: R
Raymundo Antonio OrellanaFILE NUMBER(S): 2009/11/0064 COUNSEL: Mr G.K. Walsh
Mr B. BrassilSOLICITORS: Commonwealth Director of Public Prosecutions
Proctor and Associates
JUDGMENT
1. Mr Raymundo Antonio Orellana is being prosecuted by the Commonwealth Director of Public Prosecutions. He was charged by the Australian Federal Police with importing a substance being a border controlled drug. The drug is alleged to be cocaine and it is also alleged that it was a commercial quantity of cocaine. The offence is alleged to have been committed on 18 November 2007. It is an offence against s 307.1 of the Criminal Code Act 1995 of the Commonwealth.
2. Mr Walsh, of counsel, who appears for the Director of Public Prosecutions has tendered part of a record of interview between Mr Orellana and the Federal Police which contains, he argues, admissions which are relevant to the fault element of the crime that Mr Orellana is charged with.
3. Mr Brassil, of counsel, who appears for Mr Orellana objects to the tender. His objections are in reliance upon the Evidence Act 1995, specifically sections 85, 89, 90, 135 and 138. An earlier reliance on s 137 of the Evidence Act has now been withdrawn.
4. In this judgment I will determine the objections raised by Mr Brassil to the admissions of the record of interview into evidence.
5. At the commencement it is convenient to set out some findings which I have made concerning the evidence which has been called before me on a voir dire which was conducted in accordance with s 189 of the Evidence Act on the question of the admissibility of the evidence.
6. The evidence tendered by Mr Walsh comprises a relatively small part of a more extended interview conducted by the Australian Federal Police with Mr Orellana. The whole of the interview was recorded on video. Parts of the interview were recorded on audio tape. Part of the evidence relied upon by Mr Brassil are what appears on the video so far as the behaviour of his client and the interviewers are concerned.
7. The video has been played in its entirety before me and I closely observed Mr Orellana’s behaviour during the course of the interview. Because the video helpfully contained a reference to the time I will make these findings by reference to the time or approximate time which appeared on the video screen relevant to my findings.
8. At 19:16 when the interview resumed after a toilet break Mr Orellana appeared to be quite animated on the telephone with the interpreter. At 19:21 he appeared to be focused and paying attention when speaking with the interpreter on the phone. He was leaning forward towards the phone.
9. I suspend my findings here to record that Mr Orellana’s first language is not English; it is Spanish. The interview occurred in an interview room with a telephone which was on loud speaker. On the other end of the telephone was an accredited interpreter in Spanish. Most of the questions and answers were interpreted by that interpreter between the two languages. Occasionally Mr Orellana volunteered answers himself in English. I return now to my findings.
10. At 19:23 he appeared to be relaxed. He was laughing at an incidental exchange between himself and the police. At 19:24 he was asked if he wanted a cigarette and he declined saying perhaps later. At 19:29 he appeared to be focused and animated, talking about his friend James Lopez.
11. At 19:37 he was drinking some water and leaning forward; he appeared to be engaged and listening intently to the interpreter on the telephone. At 19:48 he was asked whether he wanted a drink. At 19:49 he was wiping his face and his water had apparently run out.
12. At 19:52 he was sitting and waiting for some time in silence. I did not detect any signs of sleepiness or stress. He appeared to be quiet and still.
13. At 20:01 he appeared to be tired. His head was resting on his hand or had been resting on his hand at that stage for some minutes. At 20:03 he rubbed his eyes and put his hand through his hair. At 20:10 his chin was rested upon his folded arms on the table.
14. At 20:18 he was leaning forward and listening. At 20:20 some audio tapes were changed. He was alert, nodding and engaged. At 20:23 there was either a yawn or perhaps a sigh. At 20:30, which I note was at the time that the relevant questions and answers occurred which are tendered by Mr Walsh, he appeared to be leaning towards the phone and listening carefully. At that stage he showed no obvious signs of tiredness or over-extension. He appeared animated and was using gestures and gesticulating.
15. At 20:32 the police stopped the interview so that he could follow up the need to obtain a solicitor. At 20:37 he was still focused and animated towards the end of the interview.
16 A second finding I make concerns an argument by Mr Brassil that the Federal Police had breached s 23G of the Crimes Act 1914 of the Commonwealth. The effect of such a breach is relied upon in a number of respects related to his arguments concerning the admissibility of the record of interview under the Evidence Act.
Section 23G subs (1) provides as follows:
“ ’Subject to s 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.”(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arranged, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning; and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
17. Section 23L provides for an exception to the provision which I have just read out in that it does not apply “if, and for so long as, the official believes on reasonable grounds that:
- (a) compliance with the requirement is likely to result in:
- (i) an accomplice of the person taking steps to avoid apprehension; or
- (ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) if the requirement relates to the deferral of questioning - the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by compliance with that requirement.”
18. In this case Mr Brassil pointed to the commencement of contact between his client and the Federal Police at Sydney Kingsford Smith Airport where he first came under the attention of Customs Officers and then Federal Police when he arrived at the airport on 18 November 2007. That first contact was some time between 3 or 4 o’clock in the afternoon. The record of interview, part of which is tendered by Mr Walsh, commenced at 6.50 pm in a Federal Police office at the airport. Mr Brassil points to the delay between the initial contact and the commencement of that interview.
19. It was during the commencement of that interview that an opportunity was offered to Mr Orellana to contact a lawyer and to contact his friend James Lopez. Federal Agent Walloscheck was the Federal Police Officer who conducted the record of interview. He was accompanied by another Federal Police Officer. One of the issues was why there had been a delay in not allowing Mr Orellana to contact his friend.
20. Evidence was elicited about that from Federal Agent Walloscheck who pointed out that at the time that they first had contact with Mr Orellana at the airport he knew that he had a telephone, that is Mr Orellana, with some missed calls and that he, Mr Orellana, had received a telephone call when he arrived at the airport.
21. The reason that Mr Walloscheck says he was not prepared to let Mr Orellana contact James Lopez immediately was that the police wanted to make a criminal history check on Mr Lopez. The reason for that was it may disclose that that person was a person of interest to the police. As Federal Officer Walloscheck observed in his evidence, a person “who continuously rings someone is generally either waiting outside or may have something to do with import.” The person that Mr Orellana wanted to contact may have been, as Officer Walloscheck said, part of the syndicate. He may have been an accomplice in the offence and early contact between Mr Orellana and that person could result in, as the police officer said, “loss, concealment, destruction, evidence, that sort of thing, future search warrants, all that becomes relevant.” To my mind it was not at all unreasonable for the police to defer the opportunity for Mr Orellana to contact a friend or relative because the police believed on reasonable grounds that such a contact was likely to result in an accomplice either avoiding apprehension or concealing evidence.
22. A second point made by Mr Brassil was the delay in Mr Orellana being afforded an opportunity to contact a lawyer. Mr Brassil cross-examined Agent Walloscheck extensively on this question. To my mind the answers that he gave explaining the reasons for delay at the airport were quite satisfactory and acceptable. One of the things that needed to be done first was the completion of a property record. That involved ascertaining and recording just what property Mr Orellana had with him in case that became an issue later on. Another issue was the appropriate place for him to be interviewed where there were appropriate facilities. That place was the Australian Federal Police office at the airport rather than the Customs office.
23. Once the interview commenced, the police officers enquired about Mr Orellana’s need for a lawyer in the course of explaining to him his rights and indeed the interview was suspended for the purpose of him exercising his right to obtain a lawyer.
24. I am not satisfied that there has been any breach of s 23G(1)(b) affording Mr Orellana an opportunity to communicate with a lawyer. In any event I do not regard the questioning which occurred before the commencement of the formal record of interview as such that it would warrant the need for him to communicate with a lawyer. The interview itself, which contained what Mr Walsh argues are admissions or confessions, contained also opportunities for Mr Orellana to contact a lawyer.
25., The next preliminary finding that I make concerns the administration of a caution to Mr Orellana. There were a number of breaks in the interview. After each break, or almost every break, the police administered the caution to Mr Orellana. It is true, and not surprising, that there were some misunderstandings at times about what the caution meant. However, the relevant questions relied upon by Mr Walsh were asked and answered shortly after the police asked this series of questions:
“ Q 164. No worries, and at the moment you are happy to proceed?
A. What do you mean?
Q 165. You’re happy to keep talking with us and answer questions?
A. Yes.
A. ORELLANA: Yeah, yeah, yeah.”Q 166. And you understand that it’s your choice, you don’t have to answer my questions?
A. Yes, to answer or not to answer.
It is agreed that of the two answers referred to in the last passage, the first represents that given through the interpreter and the second one given by Mr Orellana directly.
26. To my mind Mr Orellana fully understood the nature of the caution and his choice of answering questions or not at the time that he answered the questions which Mr Walsh relies upon.
27. The next finding concerns the answers which Mr Walsh wants to tender being said by Mr Brassil to have occurred immediately after his client said, “No reply today until I speak to the solicitor.” That is quite right. The response to that assertion by his client is contained in the question, so to speak, which immediately followed it at question 179 where the police officer said, “Sure. No worries.” It was in response to that observation, which I note was not a question but an acknowledgment of what Mr Orellana had said, that he volunteered the first passage which is relied upon as an admission. What follows was a series of clarifying or acknowledging responses from the police officer which prompted the other passages which Mr Walsh relies upon as admissions.
28. A further finding I make concerns some observations made by Mr Orellana himself during the course of the interview which are relevant to his state of mind or health. Following question 85 the following three questions and answers appear:
“Q 86. No worries. Do you feel well enough to participate in this interview?
A. INTERPRETER (Answering on behalf of interviewee): How can I put it? You have a kind way of doing things.
Q 88. Sure.Q 87. Okay. Thank you.
A. Yeah, I, your not heavy.
A. ORELLANA: That’s okay.”
In the last exchange, “Orellana” is in capitals and it is agreed the answer is one given by Mr Orellana himself in English.
29. Having made those findings, I turn now to consider the objections outlined or relied upon by Mr Brassil by reference to the Evidence Act.
30. Mr Brassil argued so far as section 85 of the Evidence Act is concerned that the evidence was not admissible because the circumstances were not such as to make it unlikely that the truth of the admissions relied upon by the prosecution were adversely affected.
31. As Wood CJ at CL observed in R v Moffatt (2000) 112A Crim R 201 at 211, ([46]), the correct approach to Section 85 of the Evidence Act is as follows:
- “ If upon the evidence led on the voir dire...a question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected, then it falls to the Crown to establish upon the balance of probabilities...that it was unlikely that this was the case.”
32. Mr Brassil pointed to the vulnerability of his client exhibiting tiredness. He pointed to the fact that he was required to use an interpreter because his first language was not English. He referred to over-talking, which I take to mean two people talking at once, and to one passage where the transcript reveals that the person who translated the Spanish was not able to understand the Spanish being said by his client, hence the word “indistinct” appeared in the transcript.
33. In my opinion from the findings which I have made of Mr Orellana during the interview, his condition was not such that the truth of his admissions, if they were such, would have been adversely affected. The presence of an interpreter, necessary for a person who does not have English as their first language, is not an unusual circumstance at all, nor is over-talking on occasions. The fact that there was no complete translation of one passage is not a matter relevant to the question posed by Section 85 of the Evidence Act. It is a question which may arise and be addressed by evidence during the course of the trial. In my opinion, the evidence is not inadmissible by virtue of Section 85 of the Evidence Act.
34. Mr Brassil next relies upon Section 89 of the Evidence Act, arguing that a jury may draw an unfavourable inference because of Mr Orellana’s stated desire, on more than one occasion, to speak with a lawyer. The relevant provision for my purposes in is s89(2) which provides that evidence from which an unfavourable inference to a party may be drawn “is not admissible if it can only be used to draw such an inference.” I understand that to mean that the evidence is only inadmissible if the only available inference is one unfavourable to the party. In my opinion other inferences, which may well be available and which would not be unfavourable to Mr Orellana in the circumstances, are that his request for a lawyer stemmed from being uncertain or cautious or panicking or indeed exercising a good deal of common sense. If requested by Mr Brassil, it would seem to me at this stage to be appropriate for me to give to the jury a direction that they should not draw any unfavourable inference from his desire to speak to a lawyer, pointing out that there are inferences available which are not at all unfavourable and which make a lot of sense. To my mind the evidence does not fall within Section 89 and I do not regard the evidence tendered as inadmissible because of that provision.
34. Mr Brassil next relies upon s 90 of the Evidence Act arguing that, having regard to the circumstances in which the admission was made, it would be unfair to his client to use the evidence. Mr Brassil points to various factors here, including a passage in the interview where his client asks a question to the effect of “What is going to happen about going to court?” and was told that the police would do the interview and then they would go from there. Mr Brassil argued that that approach by the police affects the voluntariness of his client’s responses.
36. It is appropriate at this point to refer to what the Court of Criminal Appeal has said about police questioning in the Regina v Quach (2002) 137 A Crim R 345. At 368 ([100]) Sully J, with whom James J agreed, referred to the Court of Criminal Appeal’s judgment in Regina v Plevac (1995) 84 A Crim R 570. Sully J set out the statement of relevant principles concerning police questioning from that case. There were three principles, and they are as follows:
“ 1. Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain, if anything, the suspect will say about them.
3. Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions...although merely because a suspect says he does not wish to answer, or not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise.”2. But questioning must be fair and must not amount to ‘intimidation, persistent importunity or sustained or undue insistence or pressure’...but questioning is not to be regarded as unfair merely because it is persistent.
37. The overall impression I received from viewing the whole of the record of interview which was taped on video was that the police were doing their best to be fair to Mr Orellana. One needs to bear in mind that it is the job of police officers to investigate crime and to obtain evidence as part of the investigation of the crime. They are required to be fair to suspects. To my mind, what occurred in this record of interview was an appropriate combination of the police responsibilities of investigating crime in order to ascertain whether there was any evidence of criminal activity in this case together with treating the suspect fairly. He was given opportunities for breaks and he was made clearly aware of his rights and he was given opportunities to contact lawyers and, at the appropriate time, friends as well.
38. One of the matters relied upon by Mr Brassil was that some of the answers provided by his client were unclear and their value as admissions were reduced significantly. As part of the answer to question 179, Mr Orellana said “Because when I was upstairs I told him, so I had my suspicions when I went to Argentina. I spoke, not with you Michael, with someone else.” That was the interpretation provided by the interpreter (the reference to Michael being to Federal Agent Walloscheck). Immediately after that Mr Orellana added in English “The lady, one lady.” He acknowledged that the lady was from Customs. Mr Orellana went on to say through the interpreter that he had “explained to the other person that I was, some suspicion about something that I don’t really want to say anything just in case I - make a mistake.”
39. I assume for the purposes of this argument that there will not be, in the Crown case, any evidence of any admission to a Customs officer consistent with what Mr Orellana appears to be asserting at that point in the record of interview. It may be that what he said to a person upstairs, to a female Customs officer upstairs, remains unclear. But what is, in my opinion, clear is that he repeated to the police what he claimed to have said upstairs and adopted it. Bearing in mind that and the other matters that I have referred to, in my opinion I do not regard there to be any basis for me to refuse to admit the evidence of the admission tendered by Mr Walsh because of anything in the circumstances from which I would conclude that it would be unfair to Mr Orellana to use the evidence against him.
40. Mr Brassil relied upon Section 135 (b) and (c) of the Evidence Act arguing that parts of the evidence could be misleading or confusing or cause a result in undue waste of time. He argued that the passage which I have referred to which is noted in the transcript as being “indistinct” may be misleading or confusing. I do not agree. In my opinion that is a matter which can be resolved during the trial by evidence if that is needed. Indeed in the voir dire, Mr Brassil called evidence which purported to explain what was said by his client at that point of the interview where the person who translated for the transcript clearly was not able to understand. That is not, in my opinion, something which is likely to be misleading or confusing. It is simply a matter which, if appropriate, needs to be attended to by evidence.
41. Mr Brassil further argued that it was unclear what his client was referring to by referring to his conversations with the female Customs officer upstairs, for the reasons which I have already given. I do not regard that as something which is capable of being misleading or confusing because what he told the police clearly constituted a repetition - or arguably constituted a repetition and adoption - of whatever it was that he said.
42. As to a waste of time, his argument after some discussion reduced itself to an assertion that the time would be wasted because of the answer to the one question which contained in the transcript the word ‘indistinct’ and which may need to be the subject of further evidence. As I said, Mr Brassil called evidence on that topic on the voir dire and the evidence lasted only a few minutes. If there was the need to call evidence on that point it would not, in my opinion, cause or result in any undue waste of time.
43. Mr Brassil’s final point is that I should, in the exercise of my discretion under Section 138 of the Evidence Act, determine that the admissions were obtained improperly or in contravention of an Australian law. The contravention of the Australian law which he relies upon are the breach of Section 23G of the Crimes Act. For reasons which I have already given, I do not regard that provision as having been breached.
44. Mr Brassil’s asserted impropriety is the claim that his client did not comprehend the caution and that the opportunity to contact a friend or lawyer had been inappropriately deferred. For reasons which I have already given, I do not accept either of those submissions.
45. Even if I was wrong on either of those findings I would exercise my discretion to admit the admissions in any event. The probative value is significant and, being a claimed admission, is obviously important in the proceedings. Returning to the probative value, I say it is significant because Mr Orellana refers to suspicions and one of the fault elements can be satisfied by evidence of recklessness.
46. The offence is a very serious one. Indeed it carries the highest penalty of life imprisonment. I would not regard, if I was wrong, the impropriety or contravention as grave. If Section 23G had been breached or any inappropriate deferral had occurred, the circumstances were such at the airport with the need for the police to make a judgement about ascertaining the property that was on Mr Orellana, ascertaining the identity of the person whom he might want to contact and ascertaining the availability of appropriate facilities for him to be interviewed to result in any impropriety or contravention being not grave. Nor would I regard it as deliberate or reckless.
47. For those reasons, I find that the evidence was not obtained improperly or in contravention of an Australian law. And if I am wrong, then I regard the desirability of admitting the evidence as outweighing the undesirability of admitting the evidence which was obtained in the way that it was.
48. For those reasons, I would not exercise my discretion against the admission under Section 138 if that were to arise.
49. For all of the above reasons I regard the evidence tendered by Mr Walsh as admissible.
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