Em v The Queen

HIGH COURT OF AUSTRALIAGLEESON CJ,GUMMOW, KIRBY, HAYNE AND HEYDON JJSOPHEAR EM  APPELLANTANDTHE QUEEN  RESPONDENTEm v The Queen [2007] HCA 464 October 2007S59/2007ORDERAppeal dismissed.On appeal from the Supreme Court of New South WalesRepresentationS J Odgers SC with A Francis for the appellant (instructed by Legal Aid Commission of New South Wales)D C Frearson SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSEm v The QueenCriminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Police covertly recorded a conversation with the appellant in a park – Appellant made certain admissions – Appellant not aware that he was being recorded – Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically – Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court – Interpretation of s 90 of the Evidence Act 1995 (NSW) – Whether admitting evidence of admissions in these circumstances was unfair – Reliability of the admissions – Whether right to silence impugned – Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.Words and phrases – "unfair".Evidence Act 1995 (NSW), ss 84, 85, 90, 137, 138.GLEESON CJ...