Khazaal v The Queen

In *Khazaal v The Queen*, the High Court of Australia considered an appeal from a judgment of the Court of Criminal Appeal of New South Wales. The appellant, Khazaal, had been convicted of a number of offences, including conspiracy to import a commercial quantity of cocaine and conspiracy to possess a commercial quantity of cocaine. The central dispute on appeal concerned the admissibility of certain evidence obtained through electronic surveillance.

The High Court was required to determine whether the evidence obtained by the Australian Federal Police (AFP) through the use of a listening device, pursuant to a warrant issued under the *Crimes Act 1914* (Cth), was admissible at trial. Specifically, the Court had to consider whether the warrant was validly issued, and if not, whether the evidence obtained pursuant to it should have been excluded under s 138 of the *Evidence Act 1995* (Cth) as improperly or illegally obtained.

The Court reasoned that the warrant was invalid because it had been issued by a judge who was not a "federal judge" as defined by the *Crimes Act*. The definition required a judge of the Federal Court or the Supreme Court of a State or Territory. The judge who issued the warrant was a judge of the District Court of New South Wales, which was not a court of superior record for the purposes of the definition. Consequently, the listening device warrant was a nullity. The Court then considered the admissibility of the evidence under s 138 of the *Evidence Act*, balancing the desirability of obtaining the evidence against the undesirability of judicial officers acting outside their lawful authority. The Court found that the impropriety of the warrant was significant and that the evidence should have been excluded.

The High Court allowed the appeal, quashed the convictions, and remitted the matter to the Court of Criminal Appeal of New South Wales for determination of the appropriate orders, including whether a retrial should be ordered.