R v Raymundo Antonio Orellana [2009] NSWDC 151

New South Wales District Court

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

George v Rockett (1990) 170 CLR 104 CASES CITED: 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.