HML v The Queen; SB v The Queen; OAE v The Queen

These three appeals, heard together, concerned the admissibility of evidence obtained by police in circumstances where the accused had been arrested and detained for questioning. The applicants, HML, SB, and OAE, were all convicted of serious criminal offences following trials where evidence obtained during their respective periods of police detention was admitted. Each applicant sought to challenge the admissibility of this evidence, arguing it was obtained unlawfully and should have been excluded. The High Court of Australia was tasked with determining the proper application of the law governing police powers of arrest and detention, and the admissibility of evidence derived from such detention.

The central legal issue before the High Court was whether the evidence obtained from each applicant during their detention was admissible, notwithstanding that the detention may have been unlawful. Specifically, the Court had to consider the scope and application of s 138 of the *Evidence Act 1995* (NSW) (and its Commonwealth equivalent), which governs the admissibility of improperly or illegally obtained evidence. This required an examination of the principles of statutory interpretation and the common law exclusionary rules, particularly in relation to evidence obtained in contravention of an accused's rights or in circumstances where police powers were exceeded. The Court also had to consider the discretion of the trial judge to exclude evidence, even if lawfully obtained, in the interests of a fair trial.

The High Court, in a joint judgment, affirmed that the admissibility of improperly or illegally obtained evidence is governed by s 138 of the *Evidence Act 1995* (NSW). This section requires a balancing exercise, weighing the public interest in admitting the evidence against the public interest in discouraging unlawful conduct by law enforcement. The Court reiterated that the onus is on the party seeking to exclude the evidence to demonstrate that the desirability of admitting it is outweighed by the undesirability of admitting evidence that has been improperly or illegally obtained. In each of the appeals, the Court found that the trial judges had properly exercised their discretion under s 138, and that the evidence was therefore admissible.

Consequently, the appeals were dismissed, and the convictions of HML, SB, and OAE were upheld.