The fact that an accused has been charged and placed in custody does not automatically require exclusion of confessional statements made to an undercover police operative; it is a significant but not conclusive factor in the exercise of the residual discretion. The purpose for which the operative was introduced (here, to identify a co-offender rather than to circumvent the right to silence) is a material consideration. Written excuses from jury panel members need not be on oath under s 13(2) of the Juries Act 1967 (Vic). Directions that the jury must be satisfied confessions were made and are true are only required where the circumstances call for them, not as a matter of course.
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