S 464H(c) of the Crimes Act 1958 says that an admission made to an investigating official by someone who was suspected or ought reasonably to have been suspected of having committed an offence is inadmissible unless,
If the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; …
What does confirmed by the person mean?
A standard interpretation of this phrase is that s 464H requires investigating officials to confirm their conversation with the accused once the official recording has started by repeating a question-and-answer exchange verbatim and asking the accused to agree that the earlier conversation took place.
While this might be one way for the police to go about complying with s 464, that’s not what the provision requires.
In R v Sindoni  VSC 269, the trial judge was required to determine the admissibility of statements said to be made by the accused. This decision was made in the Supreme Court’s original jurisdiction so it’s not binding (it turns on its own individual facts, anyway) but it does provide a useful demonstration of when a Court has found an admission has been confirmed, and when it has found that it hasn’t.
In deciding whether each statement had been confirmed, Bongiorno J laid each stanza of unrecorded conversation alongside the piece of the recorded interview that the prosecution asserted was the confirmation of that admission. He emphasised that he wasn’t expecting to see identical words being used. He was looking for words that, “convey substantially the same information” [at 3].
Question: Well, what happened?
Answer: I had a fight with the bouncer and he king hit me.
Question: What happened then?
Answer: He wouldn’t let me back in.
This was compared with the later interview, where this exchange occurred,
Question: Okay. What time would that have been?
Answer: I couldn’t tell you but if you check the video you can see him punching me in the face and I just walked off and I thought “you’re fuckin’ kidd’n, mate”.
Question: Who punched you in the face?
Answer: Well, one of the security guards.
The conversations were held to be substantially the same, and the earlier conversation admitted.
In the next unrecorded conversation,
Question: Then what happened?
Answer: I went back to the club and shot the bouncer.
The prosecution claimed this was confirmed on tape by,
Question: Okay. I put it to you that you admitted to police in my presence this afternoon that you were involved in a shooting incident; what do you have to say about that?
Answer: I was just scared, mate.
The court rejected the claim that this constituted confirmation of the alleged earlier conversation.
Finally, the prosecution alleged,
Question: Aaron, where is the gun now?
Answer: It’s at a mate’s.
Answer: 250 Hope Street, Brunswick.
was confirmed by the accused saying in interview,
Question: Okay. I put it to you that we’ve asked you where, where a handgun was located?
Answer: Yeah, yeah.
Question: Okay. And what did you… do you remember what we told you or what you told us?
Answer: Well, I told you it was at – at – at Hope Street.
Bongiorno J accepted that these exchanges were substantially similar, and admitted the earlier unrecorded admission. Of course, just because they were admitted did not mean it was accepted that the admissions were made. That factual issue was for the jury to decide later.