The Court held that a roadside question by an investigating officer asking the accused whether he knew the deceased constituted 'official questioning' under s 281 of the Criminal Procedure Act 1986 (NSW), but found a reasonable excuse for the failure to record it; the evidence was nevertheless excluded under s 137 because the 20-year gap between the offence and arrest created a real risk the jury would give overvalued weight to an ambiguous present-tense denial. A custody manager's conversation with the accused when serving charge documents was not official questioning because it was ancillary to statutory custody duties and not designed to elicit investigative information, and the resulting admissions were admissible. The lead investigator's subsequent unrecorded conversation with the accused in the dock was excluded under s 281 as official questioning without reasonable excuse, and alternatively under s 90, because the officer was aware the accused had received legal advice not to answer questions, no interpreter was available, and the true purpose was to draw out further forensically significant denials.
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