Bowers & Anor v Director of Public Prosecutions for Western Australia

The applicants, Bowers and another, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal of the Supreme Court of Western Australia. The dispute concerned the interpretation and application of provisions within the *Criminal Code Act Compilation Act 1913* (WA) relating to the admissibility of evidence obtained through covert surveillance.

The central legal issue before the High Court was whether the Court of Appeal had erred in its construction of section 139 of the *Criminal Code Act Compilation Act 1913* (WA) and its interaction with the common law exclusionary rule concerning improperly or illegally obtained evidence. Specifically, the applicants contended that the Court of Appeal had misapplied the principles governing the discretion to exclude such evidence, particularly in circumstances where the evidence was obtained in breach of statutory provisions.

Gummow and Bell JJ considered the established principles of statutory interpretation and the common law's approach to admitting evidence obtained in contravention of statutory prohibitions. Their Honours affirmed that while section 139 of the *Criminal Code Act Compilation Act 1913* (WA) provides a framework for the admissibility of evidence obtained by covert means, it does not operate to override the common law discretion to exclude evidence if its admission would be unfair to the accused or otherwise contrary to the public interest. The Court emphasised that the statutory provisions must be read in conjunction with, and not in derogation of, the common law's protective safeguards.

Special leave to appeal was refused.