Director of Public Prosecutions v Dalgliesh (a pseudonym)

The Director of Public Prosecutions (DPP) appealed to the High Court of Australia against a decision of the Court of Appeal of the Supreme Court of Victoria concerning the admissibility of evidence in a criminal trial. The central dispute involved whether certain evidence, obtained through a covert recording, should have been excluded under section 138 of the *Evidence Act 2008* (Vic) due to its unlawful or improperly obtained nature.

The High Court was required to determine whether the Court of Appeal erred in quashing the applicant's conviction by finding that the trial judge had wrongly admitted the covertly recorded evidence. Specifically, the appeal concerned the proper application of section 138, which requires a court to exclude evidence if it was obtained improperly or in contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting it.

Kiefel and Nettle JJ held that the Court of Appeal had misconstrued the operation of section 138. Their Honours reasoned that the provision requires a balancing exercise where the court must weigh the probative value of the evidence against the impropriety of its acquisition. They found that the Court of Appeal had placed undue emphasis on the impropriety of the conduct without adequately considering the factors that favoured admission, such as the evidence's direct relevance and importance to the prosecution's case. The High Court concluded that the trial judge had correctly performed the balancing exercise mandated by section 138 and had not erred in admitting the evidence.

Accordingly, the High Court allowed the DPP's appeal, set aside the order of the Court of Appeal, and reinstated the conviction.