El Zayet v The Queen; Aouad v The Queen; Darwiche v The Queen; Osman v The Queen

These four appeals concerned the admissibility of evidence obtained by the Australian Federal Police (AFP) during investigations into alleged breaches of the *Migration Act 1958* (Cth). The appellants, El Zayet, Aouad, Darwiche, and Osman, were charged with offences under that Act. The central dispute revolved around whether evidence seized by the AFP, pursuant to search warrants issued under the *Crimes Act 1914* (Cth), was unlawfully obtained and therefore inadmissible. The appeals were heard together by the High Court of Australia.

The High Court was required to determine whether the search warrants, which were issued under general Commonwealth criminal law powers, were validly used to obtain evidence for the purpose of investigating alleged breaches of the *Migration Act*. Specifically, the Court had to consider whether the AFP officers acted beyond their powers in executing the warrants, and if so, whether the evidence obtained should be excluded under the common law principle of fairness or under s 138 of the *Evidence Act 1995* (Cth).

The Court reasoned that the *Crimes Act* powers to obtain search warrants were not limited to investigating offences under that Act, but could be used for investigating any Commonwealth offence. However, the Court found that the AFP officers had acted in excess of their powers by executing the search warrants for the purpose of investigating alleged breaches of the *Migration Act*, as the warrants themselves did not specify this purpose. The Court held that while the warrants were not invalid *ab initio*, their execution in this manner was an unlawful act. Applying the principles of fairness and the discretion under s 138 of the *Evidence Act*, the Court concluded that the evidence obtained should be excluded because the impropriety of the conduct was significant and outweighed any probative value the evidence might have.

The appeals were allowed, the convictions were quashed, and the matters were remitted to the District Court of New South Wales for a retrial.