An interlocutory appeal is not the appropriate vehicle to challenge the EM v The Queen line of authority on whether police improprieties are relevant to the s 90 unfairness discretion under the Evidence Act 2008 (Vic); such a challenge should be pursued on appeal after conviction. The Court of Appeal signalled that the correctness of EM on this point is an important and open question that may warrant reconsideration by a bench of five. The vulnerability of an accused (such as lack of sleep and illness) may be relevant to the s 138 balancing exercise as aggravating the degree of police impropriety.
The full text is available to signed-in members, including the 2 later cases that cite this judgment.