R v JF

Case [2009] ACTSC 104 27 August 2009

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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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JF

Details

AGLC: R v JF [2009] ACTSC 104
Case: [2009] ACTSC 104
Decision Date: 27 August 2009

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v JF [2009] ACTSC 104

Most Recent Citation

Director of Public Prosecutions v Michael Hou[1] [2020] VSCA 190

Cases citing this decision · 11 of 11 shown

Director of Public Prosecutions v Okwechime (No 2)
[2024] ACTSC 34

…arklimore [2007] ACTSC 3;167 A Crim R 377 R v Coulstock (1998) 99 A Crim R 143 R v Grech [2017] NSWCCA 288 R v Hunt [2014] NTSC 19; 286 FLR 59 R v JF [2009] ACTSC 104; 237 FLR 142 R v Salcedo (No 2) [2018] ACTSC 104 R v UD (No 4) [2020] ACTSC 226; 284 A Crim R 536 R v Williams [2007] ACTSC 57 Re Bolton; Ex parte Be…
R v Cranston (No 9)
[2021] NSWSC 1413 Para 4

…In relation to the onus borne by the party seeking to adduce evidence of the admission, in Deacon the Court cited R v JF [2009] ACTSC 104; (2009) 237 FLR 142 at [33] and observed at [30] that “[i]t is not enough to establish that the party’s will was not overborne; or to establish voluntariness or reliability…” (wh…
Director of Public Prosecutions v Michael Hou[1]
[2020] VSCA 190 Para 1

…] [18]As has been seen, there is clear authority for that proposition, at least in relation to s 84. See R v JF (2009) 237 FLR 142, 148 [32]; [2009] ACTSC 104 (Refshauge J). See also, R v Ye Zhang [2000] NSWSC 1099, [44] (Simpson J); Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, 365 [280]; [2010] NSWCA 34; a…
Deacon v The Queen
[2019] NTCCA 21

…fernan; R v Peters (Unreported, NSW Court of Criminal Appeal, 16 June 1998), R v Helmhout (No 2) [2000] NSWSC 225, R v Jelicic [2016] SASC 57, R v JF [2009] ACTSC 104, R v Karakas (Ruling No 1) [2009] VSC 480, R v LL (Unreported, NSW Supreme Court, 1 April 1996), R v Simmons; R v Moore (No 2) [2015] NSWSC 143, R v…
R v HG; R v We (No 1)
[2019] NSWSC 573 Para 120

…o rejected the proposition that the conduct in question was required, for the purposes of s 84, to fall at a significant level of impropriety: R v JF [2009] ACTSC 104 at [37] per Refshauge J. The Court generally accepted the proposition that the test for determining any causal relationship between the conduct on th…
R v Salcedo; R v Stretton (No 2)
[2018] ACTSC 104 Para 1

…The accused referred to the decision of Refshauge J in R v JF [2009] ACTSC 104 ( R v JF ), where a 14 year old boy was asked questions by a police officer prior to a formal interview. In that case, the admissions in the earlier questioning were excluded due to non-compliance with s 23V(1). The accused submitted tha…
R v Eastman (No 28)
[2018] ACTSC 2 Para 1

…In R v JF [2009] ACTSC 104; 237 FLR 142 (‘JF’) the voir dire was conducted in circumstances whereby the juvenile accused had admitted commission of a rape in circumstances of violence against him by a relative. The accused did not give evidence on the voir dire, but there was no issue about the admission having bee…
R v Spiteri-Ahern; R v Barber; R v Zraika (No 10)
[2017] NSWSC 1380 Para 14

…ubmission that the provisions of s 84 referred to interrogation and questioning. Further, the Crown relies upon the judgment of Refshauge J in R v JF [2009] ACTSC 104 at [33]. The passage upon which the Crown relies is in the following terms:…
Huggard v Murray
[2016] ACTSC 246 Para 1

…hat other judges of this court have taken a different view, conceding however that their remarks were obiter dicta (for example Refshauge J in R v JF [2009] ACTSC 104). This was submitted to also be the case with the above quoted passage from the Chief Justice.…
R v Sarlija (No 1)
[2015] ACTSC 290

…(2007) 68 NSWLR 720 R v FE [2013] NSWSC 1692 R v Helmhout (2001) 125 A Crim R 257 R v Ireland (1970) 126 CLR 321 R v Jackson [2005] ACTSC 127 R v JF [2009] ACTSC 104 R v Naa (2009) 76 NSWLR 271 R v Poulakis (No 1 ) [2015] ACTSC 189…
Habib v Nationwide News Pty Ltd
[2010] NSWCA 34

…Bruce James and Sperling JJ, 16 June 1998, unreported, BC9802596) R v Horton (1998) 45 NSWLR 426 R v JF [2009] ACTSC 104 R v Norton [1910] 2 KB 496 R v Priestley (1965) 51 Cr App R 1 R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 R v Thomas [2006] VSCA 165; (2006) 14 VR 475 R v Ul-Haque [2007] NSWSC 1251…

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Cases cited in this decision · 18 of 18 shown

Smith v The Queen
[2017] HCA 19

…) 232 CLR 67 R v Gilham [2008] NSWSC 88 R v Birks (1990) 19 NSWLR 677 R v Waters (2002) 129 A Crim R 115 Heatherington v The Queen (1994) 179 CLR 370 Smith v The Queen (1996) 16 WAR 205…
Tim Barr Pty Ltd v Narui Gold Cost Pty Ltd
[2008] NSWSC 637 Para 1

…an “interlocutory proceeding” for the purposes of the hearsay exception in s 75 of the Evidence Act: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637. It is, in a relevant sense, part of the trial itself.…
R v Jeffrey Gilham
[2008] NSWSC 88 Para 1

…In R v Gilham [2008] NSWSC 88, the only decision on s 90 I can find decided since Em v The Queen , Howie J held that admissions made in an interview should not be excluded under s 90 even though the accused was being held in illegal custody, because he was being detained merely for questioning and should have been…
Em v The Queen
[2007] HCA 46 Para 1

…This section has been recently considered by the High Court in Em v The Queen (2007) 232 CLR 67. Unfortunately, the Court was divided on some issues so it is not entirely clear how the courts are to apply it.…
Higgins v R
[2007] NSWCCA 56 Para 1

…A Crim R 348 (at 378), Adams J noted that “ the precise boundaries of… ‘oppressive … conduct’ are uncertain ”. In Higgins v The Queen [2007] NSWCCA 56, Hoeben J (Sully and Bell JJ agreeing) held (at [26]) that “ the concept [of oppressive conduct] should not be limited to physical or threatened physical conduct but…
R v Jackson
[2005] ACTSC 127 Para 1

…This case was quite similar to that considered by Crispin J in R v Jackson [2005] ACTSC 127 where his Honour said (at [16]):…
R v Rees
[2005] ACTSC 91 Para 1

…e omission was intended to try and distinguish the conversation from questioning which is subject to s 23V, as seemed to be the intention in R v Rees [2005] ACTSC 91 (at [14]).…
Kelly v The Queen
[2004] HCA 12 Para 1

…Mr Drumgold submitted that I should approach the question with what McHugh J had described in Kelly v The Queen (2004) 218 CLR 216 (at 251-2) as a “ purposive construction ”. His Honour said (at 250-1):…
Foo v The Queen
[2001] NTCCA 2 Para 1

…In any event, there is no sanction for breach of s 23C save for the discretionary exclusion of any evidence obtained through the breach: Foo v The Queen (2001) 161 FLR 279 (at 287). Where police followed a recommendation of a medical practitioner as to rest and recuperation so as to make the detained person better able t…
R v Paris
[2001] NSWCCA 83 Para 1

…In R v Paris (1993) 97 Cr App R 99, an interview was described as oppressive when it included shouting, bullying and hectoring. It has to be said, however, that it occurred over some 13 hours spread over 5 days during which the accused denied his involvement more than 300 times.…
Tan Seng Kiah v The Queen
[2001] NTCCA 1 Para 1

…would be a four hour period under s 23C(4)) was acceptable where periods under s 23C(7) were taken into account. That decision was upheld on appeal: Tan Seng Kiah v The Queen (2001) 160 FLR 26.…
R v Ye Zhang
[2000] NSWSC 1099

…ty 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, Smar…
R v GH
[2000] FCA 1618 Para 1

…J did not give evidence. He was, of course, not obliged to do so: R v GH (2000) 105 FCR 419 (at 431). This, however, had the capacity to, and did, leave some gaps in the evidence.…
R v Douglas
[2000] NSWCCA 275

…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 Heff…
R v Helmhout (No 2)
[2000] NSWSC 225 Para 1

…In R v Helmhout (No 2) [2000] NSWSC 225, a young mother was warned that if she did not tell the truth she would look like a bad mother. As she feared that her children would be removed from her, the confession was excluded under s 84.…
Wily, Hugh v Fitz-Gibbon, Peter Gerald
[1998] FCA 121 Para 1

…n” has been described in another context as the exercise of authority or power “ in a burdensome, cruel and unjust manner ”: Wily v Fitz-Gibbon [1998] FCA 121. That seems a most inappropriate description. As Professor Dennis (at p 39) has pointed out, in England:…
Heatherington v The Queen
[1994] HCA 19 Para 1

…The High Court has provided some assistance in considering this matter. In Heatherington v The Queen (1994) 179 CLR 370, Mason CJ and Deane and McHugh JJ said (at 376):…
R v Lee
[1950] HCA 25 Para 1

…The section is based on but is different from the common law discretion described in R v Lee (1950) 82 CLR 133.…

Legislation cited in this decision · 5

Evidence Act 1995 (Cth)
135, 137, 138, 142(1), 189, 75, 84, 85,... 10 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
4733, 4737, 4752, 4753 5 mentions (from Para 1)
Crimes Act 1914 (Cth)
23C, 23K, 23V 4 mentions
Crimes Act 1900 (ACT)
23, 54(1) 3 mentions (from Para 1)
Children and Young People Act 1999 (ACT)
79 1 mention