Section 90 of the Evidence Act 2008 (Vic) can be engaged by the physical distress of an accused at the time of caution, even where the accused understood the caution, gave reliable answers, and there was no police impropriety. The unfairness under s 90 may go to the accused's ability to exercise the right to silence and the right to legal advice, which is distinct from the reliability of the admissions. However, there must be an evidentiary basis for the finding of physical distress — a general finding of tiredness and stress without specific evidence of distress is insufficient.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.
2 of the 4 citing cases carry a classified treatment. How each court treated it is available to signed-in members.