Hofer v The Queen

The High Court of Australia considered an appeal by Mr Hofer against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert police operation, specifically recordings made by a listening device planted in Mr Hofer's vehicle. The prosecution sought to rely on these recordings to establish Mr Hofer's intent to kill the victim.

The primary legal issue before the High Court was whether the recordings, made in circumstances where Mr Hofer had a reasonable expectation of privacy, were unlawfully obtained and therefore inadmissible under section 138 of the Commonwealth Criminal Code. This section requires courts to exclude evidence that was obtained improperly or in contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been improperly obtained.

The High Court reasoned that the police operation, which involved the covert installation of a listening device in Mr Hofer's private vehicle, constituted an unlawful search and seizure. The Court held that Mr Hofer had a reasonable expectation of privacy in his vehicle, and the police had failed to obtain the necessary warrants or authorisations for the surveillance. Consequently, the recordings were obtained improperly and in contravention of Australian law. The Court found that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence obtained in such a manner, particularly given the serious nature of the contravention.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.