Marks v The Queen

In *Marks v The Queen*, the High Court of Australia considered an appeal by the applicant, Marks, against his conviction for murder. The dispute centred on the admissibility of evidence obtained through a search of the applicant's property.

The primary legal issue before the High Court was whether the evidence obtained from the search, conducted pursuant to a warrant, was admissible given that the warrant was later found to be invalid. This raised questions about the proper application of the exclusionary rule in Australian criminal law, particularly in circumstances where evidence is obtained under a defective legal instrument.

The Court, comprising McHugh and Kirby JJ, analysed the principles governing the admissibility of evidence obtained in contravention of the law. Their Honours affirmed that the common law exclusionary rule, which permits the exclusion of illegally or improperly obtained evidence, is not absolute. The Court held that the admissibility of such evidence is a matter of discretion, to be exercised by the trial judge. This discretion requires a balancing of the probative value of the evidence against the degree of its unfairness to the accused, including the circumstances in which it was obtained. In this instance, the Court found that the trial judge had erred in admitting the evidence without adequately considering the impact of the warrant's invalidity on the fairness of the trial.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.