Director of Public Prosecutions for Victoria v Le

The Director of Public Prosecutions for Victoria appealed to the High Court of Australia against a decision of the Victorian Court of Appeal, which had allowed an appeal by Mr. Le against his conviction for trafficking a commercial quantity of methylamphetamine. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically audio recordings made by police officers.

The High Court was required to determine whether the audio recordings, made by police officers who had entered Mr. Le's property without a warrant but with the consent of a co-accused, were unlawfully obtained and therefore inadmissible under s 138 of the *Evidence Act 2008* (Vic). A further issue was whether, even if unlawfully obtained, the evidence should have been admitted in the exercise of the trial judge's discretion under s 138(3) of the *Evidence Act*.

The High Court held that the recordings were unlawfully obtained because the police entry onto the property was unlawful, as the consent of the co-accused did not extend to authorising entry onto Mr. Le's private property. However, the Court found that the Victorian Court of Appeal had erred in concluding that the evidence was inadmissible as a matter of law. Applying the principles of s 138, the High Court reasoned that the trial judge had a discretion to admit the evidence, and that the Court of Appeal had not correctly applied the balancing exercise required by s 138(3). The High Court considered the factors relevant to the discretion, including the probative value of the evidence and the seriousness of the unlawful conduct.

The High Court allowed the appeal, set aside the order of the Victorian Court of Appeal, and remitted the matter to the Victorian Court of Appeal to determine whether the trial judge's discretion to admit the evidence had been exercised correctly.