Where an accused independently forms an erroneous belief that an unrecorded conversation with police cannot be used against him, and the police are not responsible for that belief, the covert recording of the conversation and use of admissions made during it is not unfair under s 90 of the Evidence Act 1995 (NSW), even if the police are aware of the erroneous belief. There is a significant difference between police subterfuge aimed at inducing a belief that a conversation is not being recorded, and subterfuge aimed at inducing a belief that what is said will not be used in evidence. No reliability warning is required where the defence case squarely raises the unreliability of admissions before the jury.
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