Potts v The Queen

The High Court of Australia considered an appeal by Mr Potts against his 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 Mr Potts was not cautioned and was unaware he was being recorded, was unlawfully obtained and therefore inadmissible under section 138 of the *Evidence Act 1995* (NSW). The Court also considered whether, even if unlawfully obtained, the evidence should have been admitted in the exercise of the trial judge's discretion.

The Court held that the recording was unlawfully obtained because it was made in contravention of the common law duty of police to caution suspects. However, the Court found that the trial judge had erred in admitting the evidence. The discretion under section 138 to admit unlawfully or improperly obtained evidence requires a balancing of the public interest in admitting relevant evidence against the public interest in discouraging unlawful conduct. The High Court determined that the unlawful nature of the recording was a significant factor that weighed heavily against its admission, particularly given the absence of any compelling reason to depart from the general rule of inadmissibility.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.