Kentwell v The Queen; O'Grady v The Queen

The High Court of Australia considered appeals by Kentwell and O'Grady against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices planted in a vehicle and a hotel room. The applicants argued that this evidence was obtained unlawfully and should have been excluded under s 138 of the *Evidence Act 1995* (NSW).

The primary legal issue before the High Court was whether the evidence obtained by the police through the use of listening devices was unlawfully obtained, and if so, whether its admission at trial was an error. This involved determining the proper interpretation and application of s 138 of the *Evidence Act 1995* (NSW), which governs the exclusion of improperly or illegally obtained evidence, and considering the discretion of the trial judge to admit such evidence.

The High Court held that the evidence was obtained unlawfully because the police had failed to obtain the necessary warrants or other lawful authority for the use of the listening devices. However, the Court found that the trial judge had not erred in exercising their discretion to admit the evidence. The judges reasoned that while the evidence was obtained unlawfully, its probative value was high, and the impropriety of its acquisition did not outweigh its importance to the prosecution's case. The Court emphasised that the discretion under s 138 requires a balancing of competing public interests, including the public interest in the administration of justice according to law and the public interest in having reliable evidence presented to the court.

The appeals were dismissed.