An appellate court will not overturn a trial judge's finding of fact made on a voir dire unless satisfied that the finding was not reasonably open. Under s 138 of the Evidence Act 2008, the party seeking exclusion of evidence bears the onus of establishing that it was improperly or illegally obtained; only once that onus is discharged does the burden shift to the party seeking admission. A breach of s 464G of the Crimes Act 1958 (failure to record the giving of the caution), where the caution was in fact given, is a procedural contravention that will not of itself warrant exclusion of evidence in a serious offence. The PEACE interviewing method may attract judicial scrutiny for its potential to erode suspects' statutory rights.
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