MP v The Queen; CB v The Queen

In *MP v The Queen* and *CB v The Queen*, the High Court of Australia considered appeals from decisions of the Court of Criminal Appeal of New South Wales. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically audio recordings made by police officers who had entered the appellants' homes without a warrant. The appellants argued that this evidence was improperly admitted at their trials, leading to their convictions.

The High Court was required to determine whether the admission of the audio recordings constituted a miscarriage of justice. This involved considering the application of the common law exclusionary rule, which permits courts to exclude improperly or illegally obtained evidence, and the principles governing the exercise of judicial discretion to admit such evidence. The Court also had to assess whether the evidence was obtained in contravention of the appellants' rights, particularly in light of the common law right to privacy.

The Court reasoned that the common law exclusionary rule, while not absolute, requires a careful balancing of the probative value of the evidence against its prejudicial effect and the impropriety of its acquisition. Gummow and Crennan JJ emphasised that the absence of a warrant for the surveillance was a significant factor weighing against admissibility. However, they also noted that the common law does not confer an unqualified right to privacy that would automatically render all covert surveillance unlawful. The Court ultimately found that the admission of the recordings did not occasion a miscarriage of justice, as their probative value was high and the prejudicial effect, when weighed against the circumstances of their acquisition, did not warrant exclusion.

The appeals were dismissed.