The Court held that an ERISP was inadmissible under s 138 of the Evidence Act 1995 (NSW) where the accused's contemporaneous complaint that he was told he 'had to do the interview' was accepted on the balance of probabilities, the investigating officer's repeated resort to imperative language ('we're gunna keep going') diminished the right to silence despite formal cautions, and the officers failed at two critical junctures to explore whether the accused wished to terminate the interview or involve the custody manager. The Court emphasised that a suspect is not required to go to an interview room or to sit mute while allegations and evidence are put to them, and that formal cautions do not cure impropriety where immediately followed by directive statements treating continued participation as inevitable. On the s 138(3) balancing exercise, despite the evidence having considerable probative value in a murder trial, the gravity of the deliberate or highly reckless impropriety and the need to encourage real attention to suspects' rights outweighed the desirability of admission.
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