Police are not required to give a suspect any form of notice that they are under investigation before deploying the scenario technique; the absence of such notice does not constitute an impropriety under s 138 of the Evidence Act 2008 (Vic), does not render the use of resulting admissions unfair under s 90, and does not engage the right to silence in a manner warranting exclusion. The decision in Tofilau v The Queen is an insurmountable obstacle to any argument that the scenario technique requires prior notice to the suspect. The fact that a suspect was never formally interviewed or cautioned about the offence under investigation does not, without more, provide a basis for exclusion of admissions made to covert operatives.
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