R v JF

Case [2009] ACTSC 104


R v JF
[2009] ACTSC 104 (27 August 2009)

EVIDENCE – pre-trial application – voir dire – admissibility of admissions – Evidence Act 1995 (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 – first admission influenced by violent and oppressive conduct – Evidence Act 1995 (Cth), s 84 – whether second admission influenced by prior inadmissible admission.
EVIDENCE – proper procedure when questioning a young person – Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K – failure to provide time for suspect to confer with ‘interview friend’.
EVIDENCE – admissibility of admissions – Crimes Act 1914 (Cth), s 23V – proper procedure when questioning – failure to tape-record questioning when practicable to do so – contrary to the interests of justice to admit such evidence – vulnerability of the suspect – guidelines for police questioning.
EVIDENCE – admissibility of taped interview – discretion to exclude – Evidence Act 1995 (Cth), s 90 – factors considered – period of remand – Crimes Act 1914 (Cth), s 23C –allowable discounted time – alleged failure to provide sleep and food to suspect – alleged prejudice due to conduct of suspect’s lawyer – seizure of clothes.
EVIDENCE – whether prior questioning formed part of later questioning.

Evidence Act 1995 (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189
Children and Young People Act 1999 (ACT), s 79
Crimes Act 1914 (Cth), Pt IC, s 23A, 23C, 23K, 23V
Crimes Act 1900 (ACT), ss 23, 54(1)

Court Procedures Rules 2006 (ACT), r 4733, 4737, 4752

International Covenant on Civil and Political Rights (opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976)

The Australian Law Reform Commission, Evidence (Report 26, AGPS, 1985)
Dennis I, “The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995 An English Perspective” (1996) 18 Syd L Rev 34

Lars (aka Larsson), Da Silva, Kalanderian (1994) 73 A Crim R 91
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637
R v GH (2000) 105 FCR 419
Rondo (2001) 126 A Crim R 562
R v Douglas [2000] NSWCCA 275
R v Ye Zhang [2000] NSWSC 1099
Truong (1996) 86 A Crim R 188 (192)
R v Ul Haque (2007) 177 A Crim R 348
Higgins v The Queen [2007] NSWCCA 56
R v Heffernan (unreported, NSWCCA, Smart, James and Sperling JJ, 16 June 1998)
Wily v Fitz-Gibbon [1998] FCA 121
R v Helmhout (No 2) [2000] NSWSC 225
R v Paris (1993) 97 Cr App R 99
Raso (1993) 68 A Crim R 495
R v Jackson [2005] ACTSC 127
R v Rees [2005] ACTSC 91
R v Barklimore (2007) 167 A Crim R 377
Kelly v The Queen (2004) 218 CLR 216
Smith (1996) 86 A Crim R 398
Dos Santos (1995) 80 A Crim R 350
R v Tan Seng Kiah (1997) 7 NTLR 61
Tan Seng Kiah v The Queen (2001)…

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Details
AGLC
R v JF [2009] ACTSC 104
Case
[2009] ACTSC 104
Decision Date

CaseChat Overview and Summary

The matter before the court was a pre-trial application regarding the admissibility of certain admissions made by the accused, JF. The case was heard in the Supreme Court of the Australian Capital Territory. The primary issues before the court involved the admissibility of admissions under the Evidence Act 1995 (Cth), the proper procedure for questioning a young person under the Children and Young People Act 1999 (ACT), and the admissibility of a taped interview under the Evidence Act 1995 (Cth) and Crimes Act 1914 (Cth). The court also needed to consider whether the failure to provide the suspect with an ‘interview friend’ or to record the questioning was contrary to the interests of justice.

The court found that the first admission by the accused was influenced by prior oppressive conduct, rendering it inadmissible under s 84 of the Evidence Act 1995 (Cth). Furthermore, the court determined that the second admission was influenced by the prior inadmissible admission and was also inadmissible. The court highlighted that the questioning process did not adhere to the proper procedures outlined in the Children and Young People Act 1999 (ACT) and the Crimes Act 1914 (Cth), particularly concerning the failure to provide the suspect with an ‘interview friend’ and to record the questioning when practicable. These failures were deemed to be contrary to the interests of justice under s 23V of the Crimes Act 1914 (Cth) and s 90 of the Evidence Act 1995 (Cth). The court also considered whether the prior questioning formed part of the later questioning, which impacted the admissibility of the subsequent admissions.

The admissions made to the accused’s uncle were ruled inadmissible due to the oppressive conduct influencing the first admission and the subsequent admission being influenced by the inadmissible first admission. The court exercised its discretion under s 90 of the Evidence Act 1995 (Cth) to exclude the taped interview due to the failure to adhere to proper procedures and the potential prejudice to the accused. The court noted the period of remand, the alleged failure to provide sleep and food to the suspect, the conduct of the suspect’s lawyer, and the seizure of the suspect’s clothes as factors that contributed to the decision.

The court ordered that the admissions made to the accused’s uncle are inadmissible. The court did not admit the taped interview into evidence, finding that it was contrary to the interests of justice due to the procedural failings during the questioning process.

Orders

Orders of the court

1.

The admissions made to the accused’s uncle are inadmissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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