Chiro v The Queen; Hamra v The Queen

In *Chiro v The Queen* and *Hamra v The Queen*, the High Court of Australia considered appeals from convictions for offences under the *Proceeds of Crime Act 2002* (Cth) and the *Criminal Code Act 1995* (Cth). The appellants, Chiro and Hamra, were convicted of various offences related to the importation of a commercial quantity of a border-controlled drug and conspiracy to import. The central dispute concerned the admissibility of certain evidence obtained through electronic surveillance, specifically recordings made by a listening device.

The primary legal issue before the High Court was whether the evidence obtained from the listening device was admissible, notwithstanding that the warrant authorising its use had been found to be invalid. This question turned on the interpretation of s 138 of the *Evidence Act 1995* (NSW) (which applied in the federal jurisdiction) and the common law exclusionary rule, which permits the exclusion of improperly or illegally obtained evidence. The Court was required to determine the proper approach to exercising the discretion to admit such evidence, particularly where the illegality or impropriety was not the fault of law enforcement officers.

The High Court held that the evidence obtained from the listening device was admissible. Their Honours reasoned that s 138 of the *Evidence Act 1995* (NSW) provided a comprehensive framework for the admission of improperly or illegally obtained evidence, requiring a balancing exercise between the desirability of admitting the evidence and the undesirability of admitting evidence that has been improperly or illegally obtained. The Court emphasised that the invalidity of the warrant did not automatically render the evidence inadmissible. Instead, the court must weigh the various factors, including the probative value of the evidence, the degree of the impropriety or illegality, and whether the impropriety was deliberate or negligent. In this instance, the Court found that the impropriety in obtaining the warrant was not so serious as to outweigh the probative value of the evidence, particularly given the nature of the offences charged and the fact that the officers acted in good faith.

The appeals were dismissed.