Pollock v The Queen

The High Court of Australia considered an appeal by Pollock against his conviction for murder. The dispute concerned the admissibility of evidence obtained from a covert recording made by a police informant. The central question before the Court was whether this evidence should have been excluded under s 138 of the *Evidence Act 1995* (NSW) due to the unlawful manner in which it was obtained.

The High Court was required to determine whether the admission of the covert recording, obtained in contravention of the *Listening Devices Act 1984* (NSW), was an unfair trial for the appellant. Specifically, the Court had to weigh the probative value of the evidence against the prejudice it might occasion to the appellant, considering the circumstances of its acquisition.

The Court reasoned that s 138 of the *Evidence Act 1995* (NSW) requires a balancing exercise. It involves considering the degree of culpability of the law enforcement officers in obtaining the evidence unlawfully, the importance of the evidence, and whether the evidence could have been obtained by lawful means. In this instance, the Court found that while the recording was obtained unlawfully, its probative value in establishing the appellant's guilt was high. The Court concluded that the admission of the evidence did not render the trial unfair, and therefore, the appeal should be dismissed.