Where a private investigator interviews a suspect on behalf of both an insurer and police without disclosing the dual role, the evidence is not automatically excluded under s 90 of the Evidence Act 1995 (NSW). The test under s 90 is whether it would be unfair to use the evidence at trial, not whether the accused was unfairly treated during the interview. If the accused was not led to believe that answers could not be used in evidence, and the evidence would have been admissible had the interview been conducted solely on behalf of the insurer, there is no basis for exclusion. The question whether knowledge of other police officers should be imputed to the investigating official for the objective test under s 281(1)(a) of the Criminal Procedure Act 1986 (NSW) remains unresolved.
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