El Ali v Royal & Ors; Zreika v Royal & Ors

The applicants, El Ali and Zreika, sought to appeal decisions of the New South Wales Court of Appeal which had dismissed their respective appeals against convictions for offences under the *Crimes Act 1900* (NSW). The core of the dispute concerned the admissibility of evidence obtained through covert surveillance, specifically audio recordings made by police officers who had entered the applicants' premises without a warrant. The applicants argued that this evidence was obtained unlawfully and should have been excluded under section 138 of the *Evidence Act 1995* (NSW). The High Court of Australia was required to determine whether the Court of Appeal erred in upholding the trial judge's decision to admit the evidence.

The central legal issue before the High Court was the proper application of section 138 of the *Evidence Act 1995* (NSW), which governs the exclusion of improperly or illegally obtained evidence. Specifically, the court had to consider whether the evidence obtained by the police, despite the lack of a warrant, was "improperly obtained" and, if so, whether its admission would be "unfair" to the accused. This involved an assessment of the balance between the public interest in the conviction of offenders and the public interest in the protection of individual rights and the integrity of the criminal justice system.

Kiefel CJ and Keane J, in a joint judgment, held that the Court of Appeal had not erred. Their Honours reasoned that while the entry onto the premises without a warrant was unlawful, the subsequent recording of conversations did not necessarily render the evidence "improperly obtained" in a way that mandated exclusion under section 138. They emphasised that the discretion to exclude evidence under section 138 requires a consideration of all relevant circumstances, including the nature of the illegality, the importance of the evidence, and the cogency of the evidence. In this instance, the court found that the trial judge had properly exercised their discretion, concluding that the probative value of the recordings outweighed any unfairness to the applicants. The appeals were dismissed.