CRIMES ACT 1914

Part IC - Investigation of Commonwealth offences  

Division 3 - Obligations of investigating officials  

Note:

These obligations apply in relation to protected suspects as well as to people under arrest.

SECTION 23V   Tape recording of confessions and admissions  

(1)  


If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:


(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission - the questioning of the person and anything said by the person during that questioning was tape recorded; or


(b) in any other case:


(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and

(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and

(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and

(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and

(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).

(2)  
If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:


(a) if the recording is an audio recording only or a video recording only - make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and


(b) if both an audio recording and a video recording were made - make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and


(c) if a transcript of the tape recording is prepared - make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.

(3)  
Where a confession or admission is made to an investigating official who was, at the time when it was made, engaged in covert investigations under the orders of a superior, this section applies as if the acts required by paragraph (1)(b) and subsection (2) to be performed were required to be performed by the official at a time when they could reasonably be performed without prejudice to the covert investigations.

(4)  


Despite any arrangement made under the Commonwealth Places (Application of Laws) Act 1970 or the Crimes at Sea Act 1979 , this section applies to any offence under a law applied by either of those Acts if the investigating official is a member or special member of the Australian Federal Police.

(5)  
A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

(6)  
A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.

(6A)  


To avoid doubt, subsection (6) does not limit subsection (5).

(7)  
If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.




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