101KAdmissibility of oral confessions

101K  Admissibility of oral confessions  (1) Subject to subsection (10), in proceedings against a person (in this section referred to as the accused) before a service tribunal in respect of a serious service offence, evidence by an investigating officer who is not a police member of a confession made by the accused in his or her presence, after the proclaimed date, is not admissible on behalf of the prosecution unless the requirements of subsection (2), (3) or (4) are complied with in respect of the interview during which the confession is alleged to have been made.  (2) This subsection is complied with in respect of an interview:  (a) if 2 sound recordings of everything said by and to the accused during the interview are made by the one multiple sound recording apparatus; or  (b) where a multiple sound recording apparatus is not available at the place of interview for use by the investigating officer conducting the interview—if one sound recording of everything said by and to the accused during the interview is made by a sound recording apparatus and a copy of the sound recording is made as soon as practicable thereafter; and the requirements of subsections (5) and (6) are observed in respect of the sound recordings.  (3) This subsection is complied with in respect of an interview if, at the time of the interview or as soon as practicable thereafter, a record in writing is made, either in English or in another language used by the accused during the interview, of everything said by and to the accused during the interview and:  (a) the record, with or without alteration, is acknowledged, in writing in the prescribed manner, by the accused to be a full and correct record and a copy of the record as so acknowledged is given to him or her; and  (b) if the language used by the accused during the interview is a language other than English but the record is made in English—the record is read to the accused, in the language used by the accused during the interview, before he or she so acknowledges it.  (4) This subsection is complied with in respect of an interview if:  (a) at the time of the interview or as soon as practicable thereafter, a record in writing is made, either in English or in another language used by the accused during the interview, of everything said by and to the accused during the interview;  (b) as soon as practicable after the record is made, the record is read to the accused in the language used by the accused during the interview and a copy of the record is given to the accused;  (c) the accused is given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that the accused claims has been made in or from the record and, at the end of the reading, the accused is given the opportunity of stating whether the accused claims that there are any errors in or omissions from the record, in addition to any to which the accused has drawn attention during the reading;  (d) either:  (i) 2 sound recordings are made by the one multiple sound recording apparatus of the reading referred to in paragraph (b) and of everything said by and to the accused as a result of compliance with paragraph (c) and the requirements of subsections (5) and (6) are observed in respect of the sound recordings; or  (ii) an appropriate witness is present when the requirements of paragraphs (b) and (c) are complied with and:  (A) a record in writing is made of everything said by and to the accused as a result of compliance with paragraph (c) while it is being said or as soon as practicable thereafter; and  (B) the appropriate witness signs a certificate in the prescribed form certifying that paragraphs (b) and (c) were complied with in his or her presence and that the record is a full and correct record; and  (e) before conducting the reading referred to in paragraph (b), an explanation, in accordance with the prescribed form, is given to the accused of the procedure that will be followed for the purpose of compliance with that paragraph and paragraphs (c) and (d).  (5) Where 2 sound recordings are made as referred to in paragraph (2)(a) or subparagraph (4)(d)(i), the investigating officer in charge of the making of the sound recordings shall:  (a) hand one of the sound recordings to the accused;  (b) inform the accused that the other sound recording will be retained by the Defence Force and may be used in evidence; and  (c) advise the accused to make arrangements for the safe‑keeping of the sound recording handed to him or her so that it will be available for comparison with the sound recording retained by the Defence Force and, if requested to do so by the accused, afford the accused an opportunity of making arrangements for the safe‑keeping of the sound recording on his or her behalf.  (6) Where a sound recording has been handed to a person in accordance with subsection (5), the investigating officer in charge of the investigation shall, upon request, provide, as soon as practicable, reasonable facilities to the accused or the accused’s legal practitioner to enable the sound recording to be reproduced in sound.  (7) For the purposes of subsection (1), the requirements of subsection (4) shall be taken to be complied with in respect of an interview if, where the explanation referred to in paragraph (4)(e) is given to the accused after paragraph (4)(a) has been complied with in respect of the interview, the actions of the accused prevent the following of the procedure that would, but for this subsection, be required to be followed for the purposes of compliance with paragraphs (4)(b), (c) and (d).  (8) In proceedings against a person before a service tribunal, the burden of satisfying the service tribunal or, in the case of a court martial, the judge advocate of the court martial, that, in relation to evidence to which this section applies, the requirements of this section have been complied with lies on the prosecution.  (9) Subject to the power of a service tribunal, or, in the case of a court martial, the judge advocate of the court martial, to exclude evidence:  (a) on the ground of unfairness to the accused; or  (b) on the ground that it is evidence of a confession not shown to have been made voluntarily; or  (c) otherwise in the interests of justice; the prosecution is not prevented from leading evidence of a confession by reason only of anything said by the accused, during, or at the end of, the reading to the accused of a record in writing containing the confession, concerning the accuracy of the record, but this subsection does not prevent a judge advocate from directing the members of a court martial with respect to the weight to be accorded to the statement as evidence.  (10) A service tribunal or, in the case of a court martial, the judge advocate of the court martial, may admit evidence of a confession notwithstanding that the requirements of this section have not been complied with, or that 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 the judge advocate is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.  (11) Where the judge advocate of a court martial, in pursuance of subsection (10), permits evidence to be given before the members of the court martial, the judge advocate shall, if he or she considers that the interests of justice so require, 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, and give the members of the court martial such warning concerning the evidence as he or she thinks appropriate in the circumstances.  (12) A reference in this section to a multiple sound recording apparatus is a reference to a sound recording apparatus:  (a) capable of making 2 or more recordings of the same sound at the one time; or  (b) that, at the same time as, or immediately after, it makes one recording, automatically makes a copy of the recording.  (13) A reference in this section to an interview includes a reference to any occasion on which anything is said by the accused in the presence of an investigating officer.  (14) A reference in subsection (4) to an appropriate witness is a reference to:  (a) a person included in a prescribed class of persons;  (b) a legal practitioner advising the accused; or  (c) a relative or friend of the accused who is present at the reading referred to in paragraph (4)(b) at the request or with the approval of the accused. Division 4—Other investigative action