Feagaiga v The Queen; Kumar v The Queen

In *Feagaiga v The Queen* and *Kumar v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute in both cases concerned the admissibility of evidence obtained through the use of a listening device, specifically whether the evidence was obtained unlawfully and, if so, what the consequences of that unlaw­ness were for its admission at trial. The appeals were heard together due to the common legal question they raised.

The primary legal issue before the High Court was whether evidence obtained by the unlawful use of a listening device, in contravention of state legislation, should have been admitted into evidence at the respective trials. This involved determining the proper application of the exclusionary rule in Australian criminal law, particularly in circumstances where the evidence was relevant and probative but obtained in breach of statutory provisions designed to protect privacy. The Court also considered the scope of judicial discretion to admit such evidence despite its unlawful origin.

The High Court held that the evidence obtained by the unlawful use of the listening devices should not have been admitted. Their Honours reasoned that the legislation prohibiting the use of listening devices without a warrant was intended to protect fundamental rights, and admitting evidence obtained in breach of these provisions would undermine the rule of law and the efficacy of the statutory protections. The Court affirmed that while courts possess a discretion to admit unlawfully obtained evidence, this discretion should be exercised cautiously and generally in favour of exclusion when the unlawful conduct is significant and the evidence's admission would be unfair to the accused. The convictions were quashed, and orders were made for new trials.