Mok v Director of Public Prosecutions (NSW)

The High Court of Australia considered an appeal by Mr Mok against a decision of the Director of Public Prosecutions (NSW). The dispute concerned the admissibility of evidence obtained through a covert recording made by Mr Mok's former de facto partner. The Director sought to admit this recording as evidence in criminal proceedings against Mr Mok.

The central legal issue before the High Court was whether the recording, made in circumstances where Mr Mok had a reasonable expectation of privacy, was unlawfully obtained and therefore inadmissible under section 138 of the *Evidence Act 1995* (NSW). This section requires a court to exclude evidence obtained improperly or in contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting it.

The Court reasoned that the recording was made in circumstances where Mr Mok had a reasonable expectation of privacy, and its admission would therefore be an improper or unlawful obtaining of evidence. Applying the balancing test under section 138, the Court considered the nature of the evidence, the circumstances in which it was obtained, the importance of the evidence, and the nature of the criminal proceedings. The Court ultimately held that the undesirability of admitting evidence obtained in contravention of a person's reasonable expectation of privacy outweighed the desirability of admitting it in the criminal proceedings.

The High Court allowed the appeal, quashed the orders admitting the recording, and remitted the matter to the trial judge for further determination according to law.