McCarthy v The Queen; Seller v The Queen

In *McCarthy v The Queen* and *Seller 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, whether it should have been excluded from the trial. The appeals were heard together by Bell, Gageler and Gordon JJ.

The primary legal issue before the Court was whether the evidence obtained by the listening device was unlawfully obtained, and if so, whether the trial judge erred in admitting that evidence. This involved an examination of the relevant provisions of the *Listening Devices Act 1984* (NSW) and the common law power of police to enter private property to install listening devices. The Court also considered the principles governing the exclusion of unlawfully obtained evidence, particularly the discretion to admit such evidence where its probative value outweighs its prejudicial effect.

The Court reasoned that the installation of the listening device in *McCarthy* involved an unlawful trespass, as the police did not have lawful authority to enter the premises for that purpose. Consequently, the evidence obtained was unlawfully obtained. In *Seller*, the Court found that the installation of the listening device was lawful. Applying the principles of discretionary exclusion, the Court held that while the evidence in *McCarthy* was unlawfully obtained, its probative value was high and outweighed its prejudicial effect, meaning the trial judge had not erred in admitting it.

The appeals were dismissed.