Burns v The Queen

The High Court of Australia considered the appeal of Burns against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police.

The High Court was required to determine whether the recording, made in circumstances where the appellant was unaware he was being recorded, was unlawfully obtained and, if so, whether it should have been excluded from evidence. This involved considering the application of the common law exclusionary rule concerning illegally or improperly obtained evidence, and the principles governing the exercise of discretion to exclude such evidence.

The Court affirmed that the common law exclusionary rule applies to evidence obtained in contravention of a person's rights, even if the contravention does not amount to a criminal offence. However, the Court also reiterated that the admission of such evidence is not automatic and requires the exercise of judicial discretion. This discretion involves balancing the probative value of the evidence against its prejudicial effect and the unfairness that might arise from its admission, particularly where the evidence was obtained improperly. The Court found that the recording, while improperly obtained, possessed significant probative value and that its admission did not occasion a miscarriage of justice.

The appeal was dismissed.