Hore v The Queen; Wichen v The Queen

The High Court of Australia considered appeals by Hore and Wichen against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through the use of a listening device, which the applicants argued was unlawfully installed and operated. The applicants contended that the evidence derived from this device should have been excluded under s 138 of the *Evidence Act 1995* (NSW) because its admission would have been unfair.

The High Court was required to determine whether the trial judge erred in admitting the evidence obtained from the listening device. Specifically, the Court had to consider the application of s 138 of the *Evidence Act 1995* (NSW), which governs the exclusion of improperly or illegally obtained evidence, and the principles of fairness in admitting such evidence. This involved assessing whether the probative value of the evidence outweighed the undesirability of admitting evidence that had been obtained in contravention of the law.

The Court reasoned that s 138 requires a balancing exercise, weighing the probative value of the evidence against the undesirability of admitting evidence obtained improperly or illegally. Gageler, Gordon and Edelman JJ held that the trial judge had correctly applied this balancing exercise, finding that the probative value of the evidence was high and that its admission would not be unfair. The Court emphasised that the focus of s 138 is on the fairness of admitting the evidence, not on the illegality of its obtaining, and that the trial judge's assessment of fairness was not vitiated by error. The appeals were dismissed.