Caffin The Queen

In *Caffin v The Queen*, the High Court of Australia considered an appeal from a conviction for conspiracy to import a prohibited import contrary to s 233B(1)(b) of the *Customs Act 1901* (Cth). The appellant, Mr Caffin, had been convicted in the Supreme Court of New South Wales following a trial by jury.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting evidence of certain conversations between the appellant and a co-conspirator, Mr. Smith, which had been obtained by means of an unlawful interception. Specifically, the court had to determine whether the admission of this evidence, despite its unlawful origin, was permissible under the *Evidence Act 1995* (Cth), particularly s 138, which governs the exclusion of improperly or illegally obtained evidence.

The High Court, by majority, held that the trial judge had not erred in admitting the evidence. The majority reasoned that s 138 of the *Evidence Act 1995* (Cth) requires a court to exclude improperly or illegally obtained evidence unless the court is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. In this instance, the court found that the trial judge had properly considered the relevant factors under s 138(3), including the probative value of the evidence and the seriousness of the contravention in obtaining it, and had concluded that its admission was justified. The court emphasised that the discretion under s 138 is broad and requires a balancing exercise.

The appeal was dismissed.