NBM v The Queen

The High Court of Australia considered an appeal by NBM against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed NBM's appeal against conviction for a criminal offence. The central dispute concerned the admissibility of certain evidence during NBM's trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in contravention of a statutory provision, specifically section 138 of the *Evidence Act 1995* (NSW). This involved considering the proper application of the discretion afforded to a judge under section 138 to admit such evidence if the desirability of admitting it outweighed the undesirability of admitting evidence obtained in contravention of the law.

The Court reasoned that section 138 requires a balancing exercise, weighing various factors including the probative value of the evidence, the importance of the evidence, the nature of the contravention, and whether the contravention was deliberate or accidental. Gageler, Gordon and Gleeson JJ held that the trial judge had not erred in their application of this balancing exercise, finding that the judge had properly considered the relevant factors and that the admission of the evidence was not an error that warranted setting aside the conviction.

The appeal was dismissed.