Orreal v The Queen

The High Court of Australia considered an appeal by Orreal against a conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police.

The High Court was required to determine whether the recording, made in circumstances where the appellant was unaware he was being recorded, constituted a breach of the *Surveillance Devices Act 2004* (Cth) and, if so, whether the evidence derived from that recording should have been excluded under s 138 of the *Evidence Act 1995* (NSW). The Court also considered the application of the common law exclusionary rule.

The Court reasoned that the recording was made in contravention of the *Surveillance Devices Act 2004* (Cth) as it was a listening device recording made without a warrant or lawful excuse. However, the Court held that the admission of the evidence did not necessarily require exclusion under s 138 of the *Evidence Act 1995* (NSW). The Court applied a balancing exercise, weighing the public interest in the admission of relevant evidence against the public interest in the protection of privacy and the discouragement of unlawful conduct. The Court found that the probative value of the evidence was high and that the contravention, while serious, did not outweigh the public interest in ensuring that criminal conduct was properly investigated and prosecuted. The common law exclusionary rule was also considered and found not to mandate exclusion in these circumstances.

The appeal was dismissed.