Em v the Queen [2007] HCA 46

Facts: Defendant (D) was cautioned in relation to murder and asserted his right to silence. He said to police that he would not talk to them if they were taping him. The next month, D was interviewed in a park, covertly recorded and repeatedly told he was being questioned “off the record” and that he was not under arrest. D incorrectly believed that unless it was taped, it couldn’t be used as evidence (police knew of this belief). D was not given a complete caution because to have done so would have alerted D to the police covert design. D made a number of admissions. The trial judge (TJ) excluded certain admissions (ones made after police said that what he said couldn’t be used against him) but allowed into evidence earlier admissions.

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