Presley v The Queen; Smith v The Queen

In *Presley v The Queen* and *Smith v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert police surveillance, specifically recordings made by listening devices. The applicants argued that the evidence was improperly obtained and should have been excluded by the trial judge.

The High Court was required to determine whether the trial judge erred in admitting the recordings, given the circumstances under which they were made. This involved considering the application of the common law exclusionary rule, which permits the exclusion of improperly or illegally obtained evidence, and the scope of judicial discretion to admit such evidence where its probative value outweighs its prejudicial effect. The Court also had to assess whether the evidence was relevant to the charges of murder.

The Court reasoned that the common law exclusionary rule is not absolute and that a judge retains a discretion to admit evidence that has been improperly obtained if its probative value is sufficiently high and its prejudicial effect is not undue. In this instance, the Court found that the recordings were highly probative of the applicants' involvement in the murders and that their prejudicial effect did not warrant exclusion. The judges applied the principles established in previous High Court decisions regarding the admissibility of improperly obtained evidence, emphasizing the importance of balancing the need for effective law enforcement with the protection of individual rights. The appeals were dismissed.