Where police place an undercover officer in cells to converse with a suspect who has already been formally interviewed under s 464 of the Crimes Act 1958 (Vic), and there are no urgent circumstances justifying the subterfuge, the resulting conversations may be excluded on both public policy and fairness grounds. The manner in which the undercover officer conducts the conversation — including use of prejudicial language, encouragement to fabricate accounts, and prompting to dispose of evidence — is independently relevant to the fairness discretion. A conversation with a second suspect that is the product of an initial tainted conversation may itself be excluded as tainted.
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