101JAdmissibility of confessional evidence

101J  Admissibility of confessional evidence  (1) Evidence of a confession made by a person in the presence of an investigating officer is not admissible in proceedings against the person for a service offence unless the service tribunal or, in the case of a court martial, the judge advocate of the court martial, is satisfied that the confession was made voluntarily.  (2) For the purposes of subsection (1), a confession that is obtained from a person in consequence of:  (a) the use of physical violence, or a threat of physical violence, to any person; or  (b) the making of a promise, threat or other inducement (not being physical violence or a threat of physical violence) likely to cause the person to make a confession that is untrue; shall be deemed not to be made voluntarily. 101JA  Tape recording of confessions and admissions  (1) If a person who is being interviewed as a suspect (whether under arrest or not) makes a confession or admission to a police member, the confession or admission is inadmissible as evidence against the person in proceedings for a service offence unless:  (a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission—the questioning of the person and anything said by the person during that questioning was tape recorded; or  (b) in any other case:  (i) at the time of the interview of the person or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person in the interview, of the things said by or to the person in the course of the interview; and  (ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her in the interview and a copy of the record was made available to the person; and  (iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and  (iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and  (v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form set out in subsection (6), was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).  (2) If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the police member concerned must, without charge:  (a) if the recording is a sound recording only or a video recording only—make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and  (b) if both a sound recording and a video recording were made—make the sound recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and notify the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and  (c) if a transcript of the tape recording is prepared—make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.  (3) In proceedings for a service offence, evidence to which this section applies may be admitted even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non‑compliance or insufficiency of evidence and any other relevant matters, the service tribunal or, in the case of a court martial, the judge advocate of the court martial, is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.  (4) In proceedings for a service offence, evidence to which this section applies may be admitted even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non‑compliance and any other relevant matters, the service tribunal or, in the case of a court martial, the judge advocate of the court martial, is satisfied that it was not practicable to comply with that provision.  (5) If the judge advocate of a court martial permits evidence to be given under subsection (3) or (4), the judge advocate must inform the members of the court martial of the non‑compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, as the case may be, and give the members such warning about the evidence as he or she thinks appropriate in the circumstances.  (6) The explanation referred to in subparagraph (1)(b)(v) is to be in accordance with the following form:   When you were interviewed by [name of police member], a written record was made of what you said, and what was said to you, in the interview. The record was made *at the time of the interview *as soon as practicable after the interview. It is in *English *the language you used at the interview. You will be given a copy.   I am now going to read it to you in [language], the language you used in the interview.   You have the right to interrupt the reading at any time if you think there is something wrong with the record. At the end of the reading, you have the right to tell me about anything else you think is wrong with the record, as well as the things you mentioned during the reading.   A tape recording will be made of the reading of the record and of everything you say, and everything said to you, during the reading and at the end. You will be given a copy of that tape recording and, if a transcript is made, a copy of that transcript.   *Delete whichever is not applicable.