Grech v The Queen; Kadir v The Queen

In *Grech v The Queen* and *Kadir v The Queen*, the High Court of Australia considered appeals from convictions for serious criminal offences. The central dispute in both matters concerned the admissibility of evidence obtained through the use of listening devices, specifically whether the evidence was obtained unlawfully and, if so, what the consequences of that unlawfulness were for its admission at trial. The appeals were heard together due to the common legal question they raised.

The High Court was required to determine whether evidence obtained by law enforcement officers using listening devices, in circumstances where the officers had not complied with certain statutory requirements regarding the use of such devices, was admissible in subsequent criminal proceedings. This involved an examination of the relevant provisions of the *Listening Devices Act 1991* (NSW) and the common law principles governing the exclusion of improperly obtained evidence. The court also considered the application of the proviso in section 6(1) of the *Criminal Appeal Act 1912* (NSW), which allows an appellate court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred.

The Court reasoned that the unlawful use of a listening device did not automatically render evidence obtained inadmissible. Instead, it held that the admissibility of such evidence was a matter for the trial judge's discretion, guided by the principles established in *Bally v The Queen*. This discretion required the judge to weigh the probative value of the evidence against its prejudicial effect, taking into account the circumstances of its acquisition. The High Court affirmed that the statutory regime governing listening devices did not create an absolute bar to admissibility, but rather provided a framework for the exercise of judicial discretion. The Court found that in both *Grech* and *Kadir*, the trial judges had properly exercised their discretion to admit the evidence, and that no substantial miscarriage of justice had occurred.

Accordingly, the appeals were dismissed.