R v Raymundo Antonio Orellana [2009] NSWDC 151

R v Raymundo Antonio Orellana [2009] NSWDC 151

At the time Officer Currey questioned Mr Orellana, the combination of travel circumstances, information about who packed and paid for the trip, unusual clothing in the luggage, and at least two positive IonScan cocaine results provided a factual foundation beyond mere speculation, so she regarded him and questioned him as a suspect. At the time Officer Campbell questioned him, despite negative later tests, he remained suspicious that an offence may be occurring and had a factual foundation for that suspicion from the earlier information and positive IonScan results. Because both conversations were not recorded as required by s 23V(1) of the Crimes Act 1914 (Cth), both were inadmissible.

Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Criminal Prosecution for Importing a Border Controlled Drug, Being a Commercial Quantity / Voir Dire on Admissibility of Evidence of Admissions or Confessions Before Jury Trial
Outcome
The tender of both conversations is inadmissible under s 23V(1) of Crimes Act 1914.
Legal Topics
['admissibility of Admissions or Confessions' 'meaning of "questioned as a Suspect"' 'recording Requirements Under S 23 V(1) of the Crimes Act 1914 (cth)' 'customs Questioning of Arriving Passengers' 'voir Dire']
['criminal Law' 'evidence' 'customs and Border Control'] ['admissibility of Admissions or Confessions' 'meaning of "questioned as a Suspect"' 'recording Requirements Under S 23 V(1) of the Crimes Act 1914 (cth)' 'customs Questioning of Arriving Passengers' 'voir Dire']

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Procedural Posture

Criminal Prosecution for Importing a Border Controlled Drug, Being a Commercial Quantity / Voir Dire on Admissibility of Evidence of Admissions or Confessions Before Jury Trial

Legal Issues

  1. 1 ['Whether the conversation between Mr Orellana and Customs Officer Jill Currey was inadmissible because he was being questioned as a suspect and the conversation was not recorded as required by s 23V(1) of the Crimes Act 1914 (Cth).' 'Whether the conversation between Mr Orellana and Customs Officer Graeme Campbell was inadmissible because he was being questioned as a suspect and the conversation was not recorded as required by s 23V(1) of the Crimes Act 1914 (Cth).']

Ratio Decidendi

At the time Officer Currey questioned Mr Orellana, the combination of travel circumstances, information about who packed and paid for the trip, unusual clothing in the luggage, and at least two positive IonScan cocaine results provided a factual foundation beyond mere speculation, so she regarded him and questioned him as a suspect. At the time Officer Campbell questioned him, despite negative later tests, he remained suspicious that an offence may be occurring and had a factual foundation for that suspicion from the earlier information and positive IonScan results. Because both conversations were not recorded as required by s 23V(1) of the Crimes Act 1914 (Cth), both were inadmissible.

Court Disposition

The tender of both conversations is inadmissible under s 23V(1) of Crimes Act 1914.

Orders

  • ['The tender of the conversation between Mr Orellana and Customs Officer Currey is rejected as inadmissible under s 23V(1) of the Crimes Act 1914.' 'The tender of the conversation between Mr Orellana and Customs Officer Campbell is rejected as inadmissible under s 23V(1) of the Crimes Act 1914.']