Kadir v The Queen

In *Kadir v The Queen*, the High Court of Australia considered the admissibility of evidence obtained in contravention of Australian law. The appellants were jointly charged with serious animal cruelty, and the prosecution sought to tender video recordings obtained in contravention of the *Surveillance Devices Act 2007* (NSW), as well as evidence and admissions allegedly obtained as a consequence of that contravention.

The central legal issue before the High Court was the proper application of section 138 of the *Evidence Act 1995* (NSW), which governs the admissibility of improperly or illegally obtained evidence. Specifically, the Court had to determine how the "difficulty of lawfully obtaining evidence" should be weighed in the balancing exercise required by section 138, and whether this factor weighed differently for evidence obtained directly in contravention of the law compared to evidence obtained in consequence of such contravention. The Court also considered whether the deliberate nature of the contravention, as evidenced by the knowledge of the individuals involved, impacted the balancing exercise.

The High Court held that the assumption made by the courts below – that the difficulty of lawfully obtaining the surveillance evidence weighed in favour of its admission despite deliberate defiance of the law – inverted the policy of section 138. The Court clarified that where the impropriety or illegality in obtaining evidence is deliberate or reckless, proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh *against* admission. Conversely, if the impropriety was not deliberate or reckless, the difficulty of lawful acquisition is likely to be a neutral consideration. The Court allowed the appeals in part, setting aside the orders of the Court of Criminal Appeal and dismissing the appeal from the ruling concerning the admissibility of the surveillance evidence.