Abernethy v The Queen; Hawkins v The Queen

These appeals concerned the admissibility of evidence obtained by police in circumstances where the police had failed to comply with certain provisions of the *Crimes Act 1914* (Cth) and the *Crimes (Forensic Procedures) Act 2000* (NSW). The appellants, Abernethy and Hawkins, were convicted of various offences following a trial in the District Court of New South Wales. They appealed their convictions to the Court of Criminal Appeal of New South Wales, arguing that certain evidence admitted at their trial should have been excluded.

The central legal issue before the Court of Criminal Appeal was whether the trial judge erred in admitting evidence that was obtained in contravention of statutory provisions governing police powers and procedures. Specifically, the court had to consider the application of s 139 of the *Evidence Act 1995* (NSW), which requires evidence obtained improperly or in contravention of an Australian law to be excluded unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way. The court also considered the implications of the police's failure to comply with the requirements of the *Crimes Act 1914* (Cth) and the *Crimes (Forensic Procedures) Act 2000* (NSW) in relation to the collection and analysis of forensic evidence.

Bell and Keane JJ, in their joint judgment, affirmed the principles governing the admissibility of improperly obtained evidence. They reiterated that s 139 of the *Evidence Act 1995* (NSW) requires a balancing exercise, weighing the probative value of the evidence against the impropriety of its acquisition. The court found that while the police had indeed failed to comply with certain statutory requirements, the trial judge had correctly applied the balancing test and had not erred in admitting the evidence. The court emphasised that the nature of the contravention, the importance of the evidence, and the circumstances surrounding its obtaining were all relevant considerations in this exercise.

The appeals were dismissed.