Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia

The High Court of Australia considered appeals from the Supreme Court of South Australia in three separate matters: *Miller v The Queen*, *Smith v The Queen*, and *Presley v The Director of Public Prosecutions for the State of South Australia*. The central dispute in each case concerned the admissibility of evidence obtained through covert surveillance, specifically the use of listening devices, and the application of the *Listening Devices Act 1991* (SA) and the *Criminal Investigation (Covert Operations) Act 2003* (SA).

The primary legal issue before the Court was whether the use of listening devices by law enforcement officers in South Australia, without a warrant issued under the *Listening Devices Act 1991* (SA), rendered evidence obtained inadmissible in subsequent criminal proceedings. This involved determining the scope of the exceptions to the warrant requirement under that Act, particularly concerning the use of devices by Commonwealth officers in the course of investigating Commonwealth offences, and the interaction between state and federal legislation governing covert surveillance. The Court also considered whether the admissibility of such evidence was governed by the common law exclusionary rule or by the specific provisions of the *Listening Devices Act 1991* (SA).

The High Court held that the *Listening Devices Act 1991* (SA) did not authorise the use of listening devices by state police officers without a warrant, even when investigating offences that might also be investigated by Commonwealth authorities. The Court reasoned that the Act created a comprehensive scheme for the use of listening devices within South Australia, and that the exceptions to the warrant requirement were narrowly construed. It was determined that the evidence obtained in contravention of the Act was inadmissible, as the Act's provisions regarding admissibility were paramount. The Court clarified that the common law exclusionary rule, which allows for the exclusion of improperly obtained evidence in the interests of a fair trial, was not displaced by the statutory provisions, but rather the statutory provisions themselves dictated admissibility in this context.

The appeals were allowed, and the convictions were quashed. The matters were remitted to the Supreme Court of South Australia for a retrial.