This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.
sets out the circumstances in which evidence of a statement made or act done by a person during questioning by investigating officials is to be taken to have been improperly obtained for the purpose of clause 138. It applies both to officials who have the power to arrest and to those with no such power. The definition of investigating officials excludes covert operatives acting under the orders of a superior. Evidence of the statement made or act done is taken to have been improperly obtained if the investigating official did not caution the person before starting to question the person in the circumstances set out in the clause. Those circumstances differ depending on whether the official had the power to arrest. The caution must be to the effect that the person need not say or do anything but that anything the person does say or do may be used in evidence. The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency but need not be in writing unless the person is unable to hear adequately. The requirement for a caution does not apply in so far as any Australian law requires the person being questioned to answer questions put by or do things required by an investigating official. The provision is consistent with the 2005 LRCs' Report recommendation 10-1 and addresses the decision of the majority of the High Court in Kelly v The Queen (2004) 218 CLR 216 regarding the meaning of "official questioning". See clause 85 above for reference to this case.