Em v The Queen

This case concerned an appeal to the High Court of Australia regarding the admissibility of admissions made by the appellant to police. The appellant argued that evidence of admissions made during a covert recording in a park should have been excluded under section 90 of the *Evidence Act 1995* (NSW) on the grounds of unfairness. The core of the dispute lay in the circumstances under which the admissions were obtained, particularly the police's omission of part of the standard caution and the appellant's mistaken belief about the admissibility of unrecorded statements.

The High Court was required to determine whether admitting the evidence of the appellant's admissions, made while he was unaware he was being recorded and under the mistaken belief that unrecorded statements could not be used against him, was unfair under section 90 of the *Evidence Act 1995* (NSW). This involved considering the reliability of the admissions, whether the appellant's right to silence had been impugned, and whether the trial judge should have warned the jury about the potential unreliability of admissions made in such circumstances.

A majority of the High Court (Gleeson CJ and Heydon JJ, and Gummow and Hayne JJ) allowed the appeal, finding that the decision to admit the evidence was erroneous. They reasoned that the police's conduct, including the deliberate omission of part of the caution and the appellant's mistaken belief, rendered the use of the admissions unfair. The majority emphasised that while resolving serious crimes is important, it cannot be achieved by relying on admissions procured in unfair circumstances, and that fairness requires consideration of a suspect's right to silence. Kirby J dissented, finding that the admissions were not unfairly obtained.

The appeal was allowed, and the convictions and sentences in respect of the Logozzo offences were quashed. A retrial was not ordered due to a concession by the prosecution that the remaining evidence was insufficient to justify one. The appellant's convictions and sentences for the Kress offences, to which he pleaded guilty, were unaffected.