Joffe v The Queen; Stromer v The Queen

In *Joffe v The Queen* and *Stromer v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute 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 unlawfulness 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 means of a listening device, installed and used pursuant to a warrant issued under state legislation, could be admitted into evidence at a criminal trial if the warrant was later found to be invalid. The Court was required to determine the proper application of the exclusionary rule in Australian criminal law, particularly in circumstances where evidence is obtained in breach of statutory requirements, and whether the common law discretion to exclude improperly or illegally obtained evidence applied.

The High Court held that the evidence obtained by the listening device was unlawfully obtained because the warrants authorising its use were invalid. However, the Court clarified that the common law discretion to exclude improperly or illegally obtained evidence is not confined to situations where the impropriety or illegality involves a contravention of a statute. Instead, the discretion extends to all cases where evidence is obtained improperly or illegally, regardless of the source of the impropriety or illegality. The Court found that the trial judges had erred in their approach to the admissibility of the evidence, as they had failed to properly consider the discretionary exclusion of unlawfully obtained evidence.

The High Court allowed the appeals, quashed the convictions, and remitted the matters to the Supreme Court of Victoria for a retrial.