R v Raymundo Antonio Orellana (No 2) [2009] NSWDC 152

New South Wales District Court

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)

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 CASES CITED: 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.