NSW Commissioner of Police v Cottle & Anor

The High Court of Australia considered an appeal by the NSW Commissioner of Police concerning the admissibility of evidence obtained through a covert listening device. The dispute arose from proceedings where the Commissioner sought to admit recordings made by a listening device installed in a vehicle used by the respondents, Cottle and another. The core of the disagreement lay in whether the recordings were lawfully obtained under the *Crimes Act 1914* (Cth) and, consequently, whether they should be excluded under s 138 of the *Evidence Act 1995* (NSW).

The High Court was required to determine whether the Commissioner had obtained the necessary authority to install and use the listening device in the circumstances that eventuated. Specifically, the Court had to consider the scope of the authority granted under s 47 of the *Crimes Act 1914* (Cth) and whether the use of the device to record conversations within the vehicle constituted an unlawful or improperly obtained acquisition of information, thereby triggering the exclusionary provisions of s 138 of the *Evidence Act 1995* (NSW).

The Court reasoned that the authority granted under s 47 of the *Crimes Act 1914* (Cth) was limited to the installation and use of the listening device for the purpose of obtaining information concerning specific criminal activities. It was held that the subsequent use of the device to record conversations unrelated to those specified in the warrant, particularly those occurring when the target individuals were not present in the vehicle, exceeded the scope of the granted authority. This unauthorised recording was deemed an unlawful acquisition of information. Consequently, the Court concluded that the recordings were obtained unlawfully and improperly, and therefore, should be excluded from evidence under s 138 of the *Evidence Act 1995* (NSW) due to the unfair prejudice they would cause to the respondents and the disrepute that admitting such evidence would bring upon the administration of justice.